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.