State and Federal criminal justice systems may contain thousands of criminal statutes. This makes the criminal justice system both broad and complex. To keep the system functioning and reliable, the principals involved in a criminal court action such as the judge and attorneys, are required to have the skill, experience and resources to either keep them well versed in the statutory laws, or to enable them to have the ability to quickly and competently refresh their knowledge-base on the intricacies of the issues in the case at bar. To be deemed competent and admitted to practice law, attorneys must graduate from an accredited law school, pass state Bar examinations and survive a character and fitness evaluation. [1] The scrutiny imposed on attorneys is just one way the criminal justice system serves to insure fidelity in the system. Then, in matters where a trial by jury is the means of adjudication, the petit juror is yet another principal who must be placed under and survive criminal justice system scrutiny.
Attorneys must endure and survive the rigorous 1L year and subsequent two years of law school training. In addition, they must also survive a thorough background screening. However, the juror, who usually does not have any legal skill or experience, is charged with synthesizing all arguments and evidence presented before the court. He is relied upon to effectuate reliable law fact analysis which is void of personal biases in order to render a just verdict. [2]
[1] Bar Admissions, Bar Admissions – Section of Legal Education and Admissions to the Bar, https://www.americanbar.org/groups/legal_education/resources/bar_admissions.html (last visited Jun 17, 2017).
[2] Linda H. Wade-Bahr, Frequently Asked Questions About Jury Service U.S. District Court – Middle District of Florida | Jury Info / eJuror, http://www.flmd.uscourts.gov/jury/faqs.htm (last visited Jun 16, 2017).
The juror is selected to perform such an important public service without having to survive the type of scrutiny other principals in the criminal proceeding must survive. Because of this fact, my assertion is that in order to provide the best qualified candidates for the juror pool, the juror vetting process should be modified to only allow people who survive a much more stringent juror vetting process to be allowed to sit on a jury.
To begin to understand why the juror selection criteria must be changed, we must first discuss the current juror selection process and subsequent vetting procedure. In Florida, as well as most parts of the country, potential qualified jurors are selected from names included on a certified voter registration list that is furnished to the court by the Secretary of State. [3] This means that only registered voters are potentially qualified to sit on a jury. While we must have a system to populate the prospective jury pool rolls, relying solely on voter registration status as the initial factor to kick start the juror selection and vetting process does a disservice to the criminal justice system. Here’s why, in 2016, the total number of Americans eligible to vote was 218,959,000 Americans. [4] However, out of that number, only sixty-seven percent, or 146,311,00 Americans actually registered to vote. Based on these statistics, we can conclude that 72,648,000 or thirty-three percent of those eligible to vote will be excluded from possible entry into the prospective juror pools. Even without any further changes to the juror selection and vetting processes, it seems that this disparity in people available to serve as jurors should be addressed. One possible means of including more people into the prospective juror pool and insuring an even fairer cross-section of community participation is to use social security numbers
[3] Jury Selection Process, Jury Selection Process – Northern District of Florida – United States District Court, http://www.flnd.uscourts.gov/jury-selection-process (last visited Jun 17, 2017).
[4] Seth, Voting Turnout Statistics Statistic Brain (2016), http://www.statisticbrain.com/voting-statistics/ (last visited Jun 17, 2017).
and address data obtained from state and federal tax returns to supplement the voter registration data.
Once the prospective juror is identified from the voter registration rolls, the next step is to have the prospective juror complete a Juror Qualification Questionnaire. [5] This questionnaire is the next and last step the court uses to scrutinize whether a juror is qualified to sit on a jury before the highly biased and subjective voir dire examination begins. [6]
Yet, in remembering the type of scrutiny attorneys must endure in order to argue before the court; it seems only logical that the Juror Qualification Questionnaire should provide the type of scrutiny relative to the important duties a juror is expected to perform. But, when reading the questionnaire, I notice that the questionnaire asks the prospective juror to disclose information related to: (1) his age, (2) citizenship, (3) domicile location, (4) degree of proficiency in the English language, (5) criminal convictions or pending criminal charges, (6) physical or mental disabilities which may interfere with serving on the jury, (7) employment status, (8) whether he is Hispanic or Latino, (9) his race and sex, and lastly, (10) whether one wishes to be excused from jury duty. [7]
With the exception of asking for disclosure of any mental or physical disabilities which may hinder one from performing as a juror, the questions being asked, while possibly relevant in other areas, don’t seem to provide the prospective juror a real, viable opportunity to discuss whether or not he is qualified to perform as required.
[5] Juror Qualification Questionnaire, United States District Court – Northern District of Florida (2014), http://www.flnd.uscourts.gov/sites/default/files/Questionnaire_Sample.pdf (last visited Jun 17, 2017).
[6] Jury Selection Process, Supra.
[7] Juror Qualification Questionnaire, supra.
In addition, even though asking a person to admit whether or not they have physical or mental disabilities is in itself-valuable in screening tool, it simply does not go far enough to insure the prospective juror has the cognitive abilities required to perform law fact analysis in addition to all of the associated duties a juror is expected to perform. Because of this shortcoming in the vetting process, at this point, the court is simply not sure as to whether a prospective juror is cognitively qualified or has the necessary character traits to synthesize all of the arguments and perform reliable and unbiased law fact analysis to render a just verdict.
Finally, in our discussion of the current juror selection process, we come to the last tool used to scrutinize a prospective juror’s fitness to serve. That tool is the vior dire examination. [6] This examination is the tool used to select the actual jury from the juror pool and is the most potent tool that exists to scrutinize the potential juror’s fitness to serve. [7] During this examination, the judge and attorneys are allowed to ask the juror candidate questions to determine his fitness to serve. While during this examination, the attorneys could perform very detailed investigations into a candidate’s background, beliefs, education and cognitive ability, to give a much more robust assessment of the juror candidate’s ability to serve, those types of in-depth investigations are time consuming and costly. [8] For instance, a “voir dire examination” can range from a few hours in length, to the several weeks it took during the O.J. Simpson trial. [9] Seemingly, the more in-depth voir dire examinations are generally reserved for defendants with the ability to pay for such in-depth investigations.
[6] Jury Selection Process, Supra.
[7] Worrall, John L. Criminal procedure: from first contact to appeal. 3rd ed. Upper Saddle River, NJ: Prentice Hall, 389 2010. Print.
[8] Id.
[9] Id.
In addition, while the merits of the voir dire examination do indeed serve to place prospective jurors under the harshest scrutiny of the juror selection process, the voir dire process seems to have the ability to be used as more of an exploratory examination that is used by both the defense and prosecution to uncover the preconceived notions a juror candidate might have which could: (1) give rise to a suspicion of prejudice on behalf of the candidate, or (2) give either side a hint as to how the candidate might render a verdict. [10] While rooting out candidates who are found to be unreliable because of an exhibition of bias is important, using the voir dire process to select jurors who are believed to be sympathetic to one side or the other gives the inference that the process does not care as much about the fidelity of the criminal justice system. In fact, the suggestion is that biased juror candidates can be qualified to serve on a jury as long as the juror’s bias is beneficial to either the defense or prosecution.
My rationale for making this assertion is that if, for instance, in order for the prosecution to predict that the juror candidate will render a verdict favorable to the prosecution without even seeing the evidence, or hearing the argument, the inference is that the prosecutor is relying on the biases of the juror candidate to supplant reliable, unbiased law fact analysis. Then logically, it would seem that the prosecutor would craft his argument as much as possible to manipulate the juror into invoking such bias on the prosecution’s behalf. Because of this, we can see how the current juror vetting process can lead to a further degradation of the criminal justice process in that the emphasis can easily be diverted from the selection of unbiased jurors, to one in which there is eager anticipation for either side to find a sympathetic (biased) juror.
[10] “Voir Dire and Jury Selection.” Judicial Education Center. N.p., n.d. Web. 17 June 2017.
The American Bar Association (ABA), when discussing the defense’s perspective on how to pick and talk to a jury, states that jurors fall into stereotyped categories. [11] Furthermore, the defense finds that prospective jurors who fall in certain stereotyped categories are beneficial to their case. Some of the stereotypes cited as being favorable to the defense are prospective jurors who: (1) have a connection to the insurance industry, (2) manage small businesses, (3) dislike frivolous lawsuits and (4) are in favor of tort reform. [12] Stereotypes stated to be bad for the defense are: (1) overly emotional or overly sympathetic individuals, (2) union employees or people who place emphasis on communal responsibility, (3) postal workers, and (4) people who are already angry with the client. As such, “if the defense attorney can keep stereotypically pro-plaintiff jurors with low expectations in favor of the defendant, then the defense can put itself in a favorable position.” This is the reality. Each side wants jurors who will be sympathetic (biased) to their cause. [13] We need a vetting process designed to populate the juror pools with prospective jurors who are willing and able to listen to the arguments and examine the evidence without allowing personal biases to influence their decision-making process. Any changes to the juror selection process should adequately address and satisfy this need. If not, the criminal justice system will continue to experience events such as in Sullivan, where a murder conviction was reversed and remanded because a juror who was delusional claimed to have heard voices during the trial which the juror thought were the voices of defense attorney spies. [14]
[11] Burd, Tara. “How to Pick and Talk to a Jury: Defense Perspective.” American Bar Association. N.p., n.d. Web. 17 June 2017.
[12] Id.
[13] Id.
[14] Sullivan v. Fogg, 613 F.2d 465 (2nd Cir. 1980).
Clearly Sullivan negates the effectiveness of the only question on the Juror Qualification Questionnaire which addresses the prospective juror’s cognitive ability to perform as a juror is expected to. [15] Then in Hedgecock, after hedgecock’s conviction he moved for a new trial, based in part on allegations that Bailiff Allen Burroughs and some of the jurors committed acts of misconduct. During deliberations, the bailiff provided the jurors with excessive amounts of alcohol. One juror in particular drank so much that the juror could not participate in the deliberations on the day the jury returned with a verdict. Affidavits submitted in the case stated that because of the alcohol consumption the juror was unable to competently perform juror duties and because of this, juror misconduct was established which served to give rise to possible prejudice against the defendant. [16]
Hedgecock is yet another prime example which supports the assertion that to provide the best qualified candidates for the juror pool, the juror vetting process should be modified to only allow people who survive a much more stringent jury vetting process to be allowed to sit on a jury. Even though jurors are allowed to indulge in alcohol consumption when not engaged in deliberations, the excessive consumption of alcohol by the juror was dispositive of the juror’s lack of concern for the fidelity of the criminal justice process in that the juror chose to place herself in a position where she could jeopardize her ability to perform her duties as a juror. This in itself gives rise to a question about the juror’s decision-making processes relevant to her ability to serve on a jury. [17] Any changes to the juror selection process should adequately address and satisfy a need to ensure that only jurors with the requisite character traits are allowed to sit on a jury.
[15] Juror Qualification Questionnaire, supra.
[16] People v. Hedgecock, 795 P.2d 1260 (Cal. 1990).
[17] Id.
In Reese, a juror who knew his arrest was imminent failed to disclose that he had charges pending against him. This situation caused the presumption of prejudice and the ensuing declaration of a mistrial when police arrived in court to arrest the juror who was in the midst of deliberations. Ironically, the juror’s prosecution was being handled by the same prosecutor who was presenting arguments to the jury that the arrested juror was a member of. [18]
In Henley, we see some of the most egregious behavior by jurors which undoubtedly is a result of ineffective measures to scrutinize and property vet prospective jurors. In Henley, former juror Michael Malachowski, who had been excused from the jury during the trial for reasons other than misconduct, visited the home of the defendants while the trial was still in progress to inform the defendants that in case of a guilty verdict, they should contact him because he had information that could be used by them to grant them a new trial. [19] Malachowski expounded on his statement to the defendants by telling them that while carpooling with two other jurors, the three of them violated court instructions by discussing the case amongst themselves while the trial was still in progress. [20]
In addition, one month after the March 28, 1995, conviction of the defendants, juror Bryan Quihuis contacted the court and reported that he had been the subject of a bribery attempt orchestrated by defendant Henley and former juror Michael Malachowski. [21] This example shows a total disregard for the criminal justice system by Malachowski when he contacted the defendants while the trial was still in progress.
[18] Reese v. State, 739 So.2d 120 (Fla. App. 1999).
[19] U.S. v. Henley, 238 F.3d 1111, 1112 (9th Cir. 2001).
[20] Id.
[21] Id. at 1111, 1113.
The example also shows a disregard for the rules jurors must follow in that the jurors failed to refrain from discussing the case amongst themselves. Then lastly, Juror Quihuis, failed to notify the court in a timely fashion about the attempted bribe. This case could be seen as a preeminent failure of the existing juror selection process. While one can argue that any juror could be subject to the violations committed in this and the previous examples discussed and that it is not the juror selection process that is faulty. Rather it is simply a case of a few bad apples in the barrel. Then conversely, one could argue that just as attorneys employ experts to discover which prospective jurors are sympathetic to their side of the argument, surely the juror selection process could be amended to utilize similar resources to formulate criteria which would better discern whether or not a prospective juror might have a propensity for violating the rules and policies jurors must abide by. Therefore, any changes to the juror selection process should adequately address and satisfy a need to ensure that a means to properly assess a prospective juror’s character and propensity to violate juror conduct rules is established and only those prospective jurors who pass this scrutiny are allowed to sit on a jury.
In conclusion, the assertion that providing the best qualified candidates for the juror pool, entails that the jury vetting process be modified to only allow people who survive a much more stringent jury vetting process to be allowed to sit on a jury is supported by the fact that the initial requirement to be placed on a prospective juror list does not consider a person’s ability to perform as a juror. Rather, the initial requirement is to simply be a registered voter. While it is understandable that we need to be able to generate a list from which we can begin to scrutinize the qualifications of prospective jurors, the next step in the process, which is the completion of the Juror Qualification Questionnaire is merely a small step away from the initial voter registration requirement and is seemingly not a viable tool in the discovery of prospective jurors capable of performing the law fact analysis and adhering to the rules and policies a juror must follow. It is not viable because it only addresses the juror’s cognitive abilities once throughout the questionnaire. In addition, the questionnaire is susceptible to deceptive answers as exhibited in Reese, where a juror who knew his arrest was imminent failed to disclose that he had charges pending against him.
The assertion calling for a much more robust vetting process is further supported by the discussion detailing how the voir dire process is used primarily to discover jurors who may be sympathetic to one side or the other and that aspect gives the inference that sympathetic (biased) jurors are actually desirable. While we must accept prospective jurors as they come, surely, we can do more to support the fidelity of the criminal justice system by developing selection criteria that takes the emphasis off of the search for a sympathetic juror and places the emphasis on selecting jurors who are willing and able to objectively hear the arguments and apply the law to the facts of the case in order to render a just verdict.
Then finally, the assertion is supported by the numerous instances of juror misconduct which may have been mitigated by a stronger vetting process such as in Henley, where a dismissed juror actually visited the home of the defendant’s while the trial was still in progress to offer them information thought to be beneficial to them, as well as clear violations of instructions not to discuss the case and finally, a scheme to involving the dismissed juror and the defendants where they conspired to bribe a seated juror. When we look at the Juror Qualification Questionnaire while considering the misconduct of the jurors discussed in this writing, possibly we should ask whether the answers a prospective juror gives to questions such as age, citizenship, domicile location, proficiency in the English language, employment status, whether one is Hispanic or Latino, race and sex really contribute to establishing whether or not a person is capable of understanding the arguments presented before the court and whether the individual has the cognitive and character traits required to perform the unbiased law fact analysis which produces a reliable and just verdict.