18 November 2001

The right to a trial by a jury of one's peers is a pillar of the American justice system. Enshrined in Article III, Section II of the Constitution of the United States, and affirmed in the Sixth Amendment, this process is supposed to ensure impartiality on behalf of the defendant, and help guarantee that the burden of proof to show guilt beyond a reasonable doubt rests not with the defendant but with the government leveling the criminal accusation. In an American court of law, the defendant is presumed innocent until proven otherwise.

I recently served a brief term of service as a potential juror - my third experience in that role, and by the far the most disheartening of the three. I was selected at random for the process known as "voir dire" for one criminal case; this is the screening procedure for juror selection, where the judge, prosecutor, and defense attorney all have the opportunity to ask each potential juror questions about their views on issues that might affect their impartiality in a specific case. What I experienced during this process scared me, reminding me again of how much a criminal prosecution can be a matter of luck as much as a matter of law. Several problems stood out.

A few potential jurors were asked by the prosecutor if they would be able to be fair and impartial in hearing testimony from a police officer (this was a criminal case involving the sale of "class A controlled substances," a/k/a drugs). As I sat in the courtroom and listened, they each responded that they would not only be capable of being fair and impartial but that they would, in fact, be likely to give police officers the benefit of the doubt in the validity of their testimony. The judge then clarified the question, noting their responsibility as jurors would be to weigh carefully the testimony of any witness and bring equal scrutiny to bear on their statements. Could they do that?, the judge asked. Each person responded in turn that they understood the point and yes, they could be fair and impartial - but that they were still inclined to give police officers the benefit of the doubt in the truthfulness of their sworn testimony.

One juror, originally from the Dominican Republic, could not answer a question about how she would react if the defendant relied on his Constitutional rights and declined to testify. Would she hold this against the defendant? The juror could not answer because she did not know what the word "testify" meant, since English is not her native language. She cannot be faulted for this, but it seems odd that no accommodation was made by the court to provide a translation into Spanish (not an uncommon language in New York) - nor was any assistance offered in the screening process that might have enabled this woman to avoid juror service altogether because of a language barrier. (Although several announcements were made about claiming exemptions due to language difficulties … these were all made in English.) Still another juror stated that her job was too important for her to miss because of a case involving something as minor as drugs. The judge reprimanded her, noting that in all likelihood most of the people sitting in the jury box with her felt the time away from their jobs was a hardship; but she, in turn, insisted that her job in particular met this standard, and said this would affect her ability to be impartial in this case: a speedy and efficient resolution was in her best interest.

Alright, you may say: clearly, these people responded the way they did because they understood that to do so would guarantee they would not be chosen to serve. It is true, no one seemed to want to be there. As a matter of practical, legal responsibility people put in an appearance, but then did as much as possible to place themselves in that elite category of juridical unacceptability by expressing views of a particularly curious nature, like the ones I noted above. (The Spanish-speaker is, admittedly, in an altogether different situation.) The results of this "voir dire" session are not known to me, but if the selection of a jury in any way mirrors the statements made by the potential jurors themselves, then I fear for the defendant in this case, or any other. In the abstract, the value of a trial by jury is straightforward enough, but that jury is ultimately valueless if it consists of citizens who are aggressively angry at having to be present. Nor is justice served when members of a jury are so uninformed (or uneducated) that they cannot understand the distinctions involved in applying consistent standards of credibility to all witnesses.

We have taken a wrong turn somewhere. At a practical level, jury service involves interminable waiting. In New York, despite efforts to reduce some of the time spent waiting, the court does not seem exceptionally modernized and able to accurately calculate its needs. Some waiting is inevitable, if a pool of potential jurors is to be available for cases that do proceed to trial, but it seems like guesswork when there should be more analysis - perhaps a system that might allow jurors to phone in the night before and find out not whether they even need to appear.

The bigger issue might be one of education: maybe it should be an educational imperative that all Americans understand the importance of a trial by jury. This should include not just the terms and concepts that are involved in a trial (which are taught, however poorly), but an emphasis on the important role each citizen plays in supporting our system of judicial checks and balances. Juries are what help enforce American laws by providing each defendant with several "judges" and not just one, and calls on other members of a community to look at the accused and at the evidence presented, and to make an assessment not on technicalities but on a very simple standard: whether guilt has been proven beyond a reasonable doubt.

Only reasonable people can make such an assessment. Is every American capable of reason? Probably not. Is everyone competent to serve on a jury? Probably not. But the task of the lawyers and judges should be to focus on those who cannot, and not on those who would not. Like it or not, it is our responsibility as citizens - a chore that might seem more manageable should we remember that someday we too could end up in the defendant's chair, and have the same hopes for justice as the person we were once asked to judge.