Did you know that as a lawyer, during jury selection and before evidence is presented at trial, I can strike (i.e., get rid of) a juror for any reason? These reasons can include simply winking at me (see two blogs ago), or wearing a funny shirt, or saying something that is off-putting. Now there are limits to this, and one of them is that the strike cannot be race-based, and a lawyer cannot use an ugly shirt as a pretext for the racist removal of a juror, which can be a topic for another day.
I only get maybe 10 or so of these “peremptory strikes”, depending on the case, but I’m surprised how many people did not know this is arbitrary striking process exists. I’ve read that there is a trend toward states eliminating peremptory strikes of jurors—strikes for any reason whatsoever—including Arizona wholly banning peremptory strikes.
No group of potential jurors is the same. Which of course is obvious, but it’s important for a lawyer to remind himself of this fact before every new trial. Every trial brings a new panel of people, new personalities, with disparate backgrounds and implicit biases. If you think you do not have biases that you don’t even realize, I suggest “Thinking Fast or Slow” by the psychologist Daniel Kahneman for your reading pleasure.
For a trial this week, I might have it all together. The next week, it may be like walking into a buzzsaw. Next week I might get a panel of jurors so wacked out that I am doing anything I can to “bomb” this jury, which is to say, to get so many of them struck for the most insignificant legal reason I can find such that I can start the jury selection process over again, with an entirely new slate of jurors.
This gets harder, but more useful, the more conspiracy-driven our society becomes. If a juror on my panel believes that Michelle Obama was once a man and she and the former president met in college when she was a man, and that she got a sex change about that time, and then they married, and then she went on to become one of the most influential first ladies in history—what am I supposed to do with that juror?
Or the better way to ask that question is: do I or do I not want that juror sitting in on my case?
If my case involves chaos that needs order, maybe that’s just the right amount of chaos I’m looking for. That juror might manufacture a theory just peculiar enough that the order he creates is the disorder I need to get my client acquitted. If he has his doubts that a strong black woman could marry a slightly built black man and that that black man could go on to become president, then maybe I can get him to doubt all kinds of normal-seeming plotlines.
Or perhaps, on the flipside of this, he’ll take a simple and plain case and distort it so badly that by the time the case is over and the arguments have been made, he has so subverted the jury’s opinion that I don’t know which way it’s going to go. Or maybe he’ll simply hold out on what would otherwise be a fairly straightforward verdict, which can be useful, too.
It’s not so much about how a particular juror will react to this or that case, it’s more precisely helpful to know how that juror’s reaction to this case will affect the outcome of the case.
Which then leads me to a more important point: I really have no idea how that juror who thinks Michelle Obama was once a man will react to a case once everything in my case has been presented to them. I have met some otherwise intelligent people who have been sucked into all forms of conspiracies, but when confronted with straightforward facts, they normally fall in line, and can make the right decision with the facts on hand. They can ignore the conspiracies they’ve heard online, and make a judgment based on the limited information presented to them in the courtroom. The difference, apparently, is what they do at home and online, versus what they do when they are presented something by an actual human, in person.
What’s funny about thinking your great lawyerly skills are working to spot strange jurors, is that almost every time, no matter how weird the juror is, as a collective, the jury will go on to do the right thing. They will see the case for what it is. It is the same thing you see when you remove people from an online forum to an in-person forum. People are more sensical when they see and hear everything in person, in front of them, when the information is not distorted, and is presented, unlike online, in a straightforward matter. (Think: a person whose political ideals you despise, but when you meet them over coffee, you realize you have way more in common with the person than not.)
This isn’t always the case of course—the O.J. Simpson trial being perhaps the most infamous example. But for now, a trial by jury is the best system we have to deliver justice in complex factual scenarios. Believe me, I am all ears on a better system than a trial by jury for judging a person’s actions, I just haven’t heard one yet. My only wish is that trials were a little less cumbersome, which I will write about later.
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