A Professional Jury

June 18, 2019

As a civil trial attorney, I understand better than most, the dog and pony show that a trial by jury actually is. Lawyers understand that adjudications on legal issues, such as motions, and appeals are about legal interpretations, i.e., “the law.” Lawyers also understand that trials by juries are about storytelling, i.e., “the facts.” Juries largely consist of non-lawyers with very little knowledge of laws and how they work. Therefore, the legal analysis happening during jury deliberations is typically based on how non-lawyers heard a story that was told to them, not how the facts synthesize with the laws at issue. Worse still, juries mostly consist of persons who either, will do nearly anything to get out of jury duty altogether, or those who figure attending jury duty is better than going to work. With very little legal knowledge, a great deal of animus for the institution of jury service, and all the inherent biases that come along with each and every human being, how could a jury ever produce a justifiable and objective verdict.

Trial lawyers are also keenly aware of the biases and impatience within the jury pool. One might imagine that the point of the Voir Dire process of jury selection is to empanel the best, most patient, and least biased jury possible. It is not. Conversely, trial lawyers rely on this bias, and their ability to seat these biased potential jurors. The trick is to seat jurors that will be biased toward your position. Like any race to the bottom, both plaintiff’s and defendant’s attorneys engage in picking the most subjective and biased potential jurors. Each side is locked in because non-participation in this game means throwing the jury to your opponent’s advantage. How can our Voir Dire process live up to the promise of the Sixth Amendment?

 

The Sixth Amendment to our Constitution reads:

 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

 

The Sixth Amendment, on its face, guarantees an impartial jury in criminal prosecutions. I am not a criminal attorney, but the guarantee of an impartial jury, while specifically mandated by the Sixth Amendment, is just as applicable in a civil trial. I.e., people are entitled to have their claims, whether civil or criminal, hear by an impartial jury of their peers.

Again, trial practice, and the current Voir Dire process in America is firmly rooted in the exact opposite of empaneling an impartial jury. If the Voir Dire process is rotten to its core, as I argue here, the natural question is, what is better, and what can replace it?

 

A professional jury would fix the most egregious problems present with our system of jury service. Those being: (1) apathy and/or actual contempt toward jury duty by the jury pool; (2) inherent bias; (3) lack of legal analytical skills and basic legal knowledge required to properly adjudicate legal claims both criminal and civil. Above and beyond fixing these problems, a professional jury would reallocate mostly wasted payments to jury pool members, and convert them into wages for actual professional jurors. It would also relieve each member of society from compulsory jury service ever. Finally, it could significantly streamline the trial process by eliminating the Voir Dire process altogether, which would significantly clear up court dockets.

 

First, as already referenced, most Americans live in fear of and/or contempt for the day when a summons arrives in the mail compelling them to jury duty. I claim that the level of apathy and actual contempt in for the process by the very jurors empowered to render verdicts creates a rush to judgment in jury trials, all of which deserve better than cursory consideration by annoyed jurors. No person should win or lose their case because one or two jurors just simply can’t be bothered to put in the necessary effort to properly decide the legal claim before them, but instead just throw in their lot with the most vocal faction of the jury. Because a professional jury would be doing their job, the motivations that lead to this rush to judgment would be significantly muted.

Second, in the Twenty-First century, lawyers questioning a handful of potential jurors for a few minutes is not an adequate guarantee against bias in the jury pool. A professional jury would have a certification process, a process that guarantees the greatest level of objectivity and impartiality on the part of the professional jurors. A computerized platform with an algorithm would ensure that each and every jury accurately represented the gender, racial, and socioeconomic makeup of the country.

 

Third, and finally, it is important to note that it is absolutely imperative to understand how lawyers think. Law school, more than any other thing, teaches a person to think like a lawyer. That is, if I step outside of this fact pattern, set my biases aside, take the facts and laws at issue, what result comes out. While that may be oversimplified, most current juries don’t even exhibit this miniscule level of skill in synthesizing legal claims with the associated factual circumstances. A certificate program, attainable by anyone could instill the requisite level of skills to potential professional jurors, which would allow them to objectively and impartially synthesize facts with elements of a legal claim, and understanding the burdens of proof, render impartial and justifiable verdicts.

The jury and Voir Dire process in America is broken, and directly contravenes the guarantees of the Sixth Amendment. By now, in America’s courts, we deserve better.

 

 

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