Peering at your peers

“A fox should not be on the jury at a goose’s trial.”

— Thomas Fuller

“I con­sider trial by jury as the only anchor ever yet imag­ined by man, by which a gov­ern­ment can be held to the prin­ci­ples of its constitution.”

— Thomas Jefferson

On Tues­day and Wednes­day of this week, the jury was seated in Cen­tre County, Pa., in the sex­ual assault trial of for­mer Penn State assis­tant foot­ball coach Jerry San­dusky. The makeup of the jury raised eye­brows not only in and around State Col­lege but through­out the nation. The process of jury selec­tion is far from a sci­ence, however.

Much energy is expended in the legal com­mu­nity on jury selec­tion, both in prepa­ra­tion and in the process itself. Classes are taught in law schools, sem­i­nars focus on the sub­ject, entire books are devoted to the topic and in some high pro­file tri­als experts are hired solely to con­sult on the process of jury selection.

On the flip side, many attor­neys scoff at the so-called “sci­ence” of jury selec­tion argu­ing that there is sim­ply no way to know how peo­ple are going to react to the evi­dence that is pre­sented to them in the course of a trial. Some lawyers, par­tic­u­larly in cases where the stakes are not as high, are happy to take just about any­one as a juror.

States select jurors in dif­fer­ent ways, with names some­times drawn from voter reg­is­tra­tion rolls, BMV records or tax lists. Names are ran­domly selected and those per­sons are sent a notice that they have been selected for jury duty on cer­tain dates. They are also sent a jury ques­tion­naire which asks a vari­ety of back­ground ques­tions. Infor­ma­tion in these jury ques­tion­naires is then pro­vided to the attor­neys in the case.

At the begin­ning of a trial, jury selec­tion occurs. Jurors are addressed by the judge and then by the attor­neys for each side in the case. Attor­neys will fre­quently ask ques­tions about how jurors might react to cer­tain issues that will arise in the case. Depend­ing on the answers to those ques­tions and the infor­ma­tion that the jurors pro­vided in their ques­tion­naires, attor­neys might seek to excuse those jurors from the case.

There are two ways that a juror might be excused once the jury selec­tion process has begun. First, the juror may be excused for good cause. This usu­ally occurs at the request of one of the par­ties to the case. The judge may grant or deny that request. If the judge grants the request, it is because the judge believes that, based upon a response or state­ment from the prospec­tive juror, the juror could not be fair and impar­tial in the case. The juror may know the defen­dant or a prospec­tive wit­ness. The juror might have a finan­cial inter­est in the case. Per­haps the juror already has infor­ma­tion about the case and is there­fore biased.

In other cases, the juror may not have indi­cated that they can’t be fair, but they may have made a state­ment or pro­vided a response that leads an attor­ney to believe that they could be adverse to the attorney’s case. Each side has a set num­ber of “peremp­tory” or auto­matic chal­lenges. They need not pro­vide a rea­son for mak­ing these chal­lenges, and once made the juror is excused. The only lim­i­ta­tion is that the attor­neys may not use their peremp­tory chal­lenges to exclude a class of jurors, such as all the jurors of one race.

What drew the atten­tion of some observers in the San­dusky case was both the num­ber of jurors who had con­nec­tions to Penn State and also the inti­mate nature of those con­nec­tions. It is not sur­pris­ing that a great num­ber of prospec­tive jurors would have con­nec­tions to the uni­ver­sity in the county where the uni­ver­sity resides. Surely the same would be true of Ohio State in a trial in Franklin County.

In the San­dusky case, juror num­ber 5 has two Penn State degrees. Juror num­ber 8 is a retired Penn State pro­fes­sor. Jurors 10 and 11 cur­rently work or have worked for Penn State in non-teaching posi­tions. Juror 12 is a cur­rent pro­fes­sor at Penn State, a posi­tion she has held for 24 years. Per­haps most sur­pris­ing are jurors 3 and 7. Juror 7 will be a senior at Penn State in the fall. He works at the ath­letic depart­ment and knows some of the poten­tial wit­nesses. He stated that he could be fair in the case and was not excused. Juror 3’s hus­band works with the father of key wit­ness Mike McQueary. Sandusky’s attor­ney asked to have her removed for cause, but the judge denied that request. Media reports say that the attor­ney was then about to use a peremp­tory chal­lenge, but San­dusky stopped him from doing so.

In a case like Sandusky’s a guilty ver­dict requires a unan­i­mous jury so it only takes one juror to affect the out­come. Ulti­mately, the only way to know whether your jury selec­tion strat­egy works is to try the case and see what deci­sion the jury makes.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Jun 7 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.