In America, we as citizens are told to count ourselves lucky that we are judged by an anonymous group of our peers. Ideally, this random selection of fellow citizens will help keep the judicial system in check and make sure that each citizen receives a fair trial.
While on the surface the idea is sound, the reality of the jury selection process does not constitute what the average person would define as fair, let alone just.
If the jury selection process does not constitute a fair trial, (for which reasons I will discuss later on), would it be better to have a system of professional jurors?
Before I can discuss the possibility of changing the system, let’s discuss how the current selection process operates.
Voir Dire in America
To select a jury, most states use a process known as “voir dire.” This legal term means that jurors will be selected by a panel, and usually the panel consists of a judge, a defense attorney, and a prosecutor.
Each state conducts the selection process differently, but the essential steps are as follows:
- Once a year, each citizen receives a jury summons.
- If called-in, each citizen capable of serving on a jury must go to the courthouse for the selection process.
- Potential jurors remain in a waiting room until their names are called, and then they are brought into courtrooms where they are asked a series of questions.
- As they answer each question, the panel takes notes.
- During this initial questioning, the judge is allowed to excuse whomever he/she wishes.
- After the initial questioning, both the prosecutor and defense attorney have the right to ask jurors some questions to determine if each juror will remain unbiased.
- The prosecutor and defense attorney will then deliberate with the judge, and the judge may then excuse more potential jurors.
This process repeats until enough jurors have been selected for each court case on the docket.
Problems with Voir Dire
During the selection process, potential jurors are told some basic elements about the case. For instance, the judge might say that the case involves a person accused of committing rape, or armed robbery, or elder abuse, etc. The judge provides this information as a way to determine if potential jurors have any sort of prejudices that may inhibit their ability to make their judgments during the case.
Of course, although each potential juror swears to tell the truth about his or her biases, it is difficult to prove if a potential juror is prejudice.
For example, let’s say the case is about rape. A potential juror may be adamantly against rape and believes that anyone accused, whether proven innocent or guilty, should be punished. Obviously, that potential juror cannot remain unbiased. However, if that potential juror decides it is his/her duty to make sure that the accused be punished, the potential juror could simply pretend to be unbiased to guarantee a spot on the jury.
More often than not, though, most potential jurors will use their prejudices to get off of the jury, since they have lives and jobs they want to get back to. Some potential jurors even invent prejudices to get out of serving on a jury. Nevertheless, it is still highly possible for a self-righteous individual to lie to the voir dire panel, thus eliminating any chance of the accused receiving a fair trial.
While we may want to believe that all lawyers are out there for justice, the fact of the matter is that lawyers who want to do well in their firms must win their cases regardless of truth. Thus, it’s about who has a better argument, not who has the facts or the evidence.
If you want your argument to win, you need to know your audience, (jury pool); and, if you’re allowed to cherry-pick some of your audience members, all the better.
Granted, lawyers are not permitted to ask certain questions during the selection process. The judge monitors, to some degree, the lawyers and their lines of questioning at this stage. Nevertheless, skilled lawyers know what they’re looking for in ideal jury candidates, and most of these traits can be identified without asking a single question.
During the initial stage of questioning, for instance, jurors often have to reveal their line of work and some rudimentary potential biases. Lawyers pay attention to each potential juror’s vocation. Your line of work reveals a lot about the type of person you are, which in turn tells the lawyer how they would need to go about if they wanted to persuade you to their side of the story.
Likewise, lawyers also consider the way you talk, your age, your sex, the way you act, and how you hold yourself during questioning. All of these factors help the lawyer decide whether you could help them win the case. If the lawyer feels you can aide in his/her potential victory, the lawyer will try to keep you on the jury.
Notice that these factors have very little to do with determining your ability to think critically, to listen, or to make difficult decisions.
As you can see, the random selection process of voir dire is not truly random, and nor does it adequately gather a group of one’s peers. In fact, in some ways, the selection process almost seems akin to a job interview, in that the “employers” (judges and lawyers) are trying to figure out the best “candidates” (potential jurors) to fill the positions, but each individual employer has a different view on what job qualifications each candidate must meet.
For more information about the fairness in the voir dire system within the state of California, refer to this document prepared by consultants and researchers at The National Center for State Court.
Reasons to Implement a Professional Juror System
Besides the information above that describe why the current random selection process is faulty, there are many other reasons to consider implementing a professional juror system instead. Some of those reasons are as follows:
Expense of Time and Money
Many people argue against the professional juror system because they say it will cost too much to employee these individuals. However, the cost of the current jury selection process is far from free. Consider all of the following expenses that are currently involved with the random selection process:
- Maintaining and updating the list of potential jurors
- Designing each jury summonses
- Printing out jury summonses
- Packaging jury summonses
- Mailing out jury summonses
- Maintaining and updating call centers/websites to provide potential jurors with jury summons information
- Managing jury summonses replies (postponements, requests to be excused, etc.)
- Mailing out additional summonses to compensate postponements
The above expenses include more than just the cost of materials; these expenses also include all the salaries for the jobs involved in the logistics of the random selection process. Furthermore, the above only accounts for money spent to select potential jurors and to instruct them on what to do after they are summoned.
Once they are summoned and arrive at the courthouse, though, there are further expenses.
Staff members have to check-in all of these extra people, make sure they aren’t carrying in any contraband, and staff members must monitor potential jurors during their stay in the building. Staff members also have to walk groups of individuals in and out of various courtrooms. These staff members have other duties besides babysitting jurors, and those duties are put on hold during jury selection days. Therefore, these employees get further and further behind due to the selection process.
The entire selection process for one trial may take an entire day. That puts every court case behind at least a full day. Furthermore, even though not a single trial took place, money still goes out to accommodate all of the salaries for the courthouse staff and the expenses for any materials used.
All that money could be used to pay for a staff of professional jurors. Furthermore, having a staff of professional jurors would put a stop to the wasted time spent on the selection process, which could allow trials to be completed more quickly.
Lack of Proper Training
In his article, “Time and Place for Professional Jurors,” James Alan Fox advocates for the use professional jurors during certain situations. He comments that the average citizen does not have the training or education to understand the complexities involved in cases that involve questions of mental health.
Fox comments that most citizens have little experience dealing with mentally unstable people, or they have preconceived notions created by the media, television, and movies. They therefore, according to Fox, are not adequately suited to judge whether someone diagnosed with a mental disorder is fit to stand trial.
If you were to create a task force of professional jurors, though, you could even go so far as to create different professional juror levels. Individuals with a background in medicine or psychology, for example, would qualify for the juror level appropriate for such cases as described by Fox in his article listed above. A more informed jury could, theoretically, have a better understanding of the case and perhaps provide a fairer verdict.
Too Much Training
In the current random selection process system, there is every possibility that one of the potential jurors selected could be someone with a background in politics, law enforcement, or the judicial system. If chosen to be a juror, these individuals have a more in-depth knowledge of legal terms, lawyer tactics, etc. Whether or not they will be biased is not in question, according to Daniel Solove in his article “Should We Have Professional Juries?” Instead, Solove argues that other jurors on the jury will allow the experienced person to make all the decisions. Solove gives the following example that proves his point brilliantly:
“Shouldn’t one expect when a law professor or lawyer is on the jury that he or she will have significant influence? If you put a bunch of people in an airplane cockpit, none of whom know how to fly a plane, along with a pilot, it doesn’t take Einstein to figure out that the people might want to consult with the pilot!”
If we were to implement a professional juror system, all the jurors would have the necessary training and education to serve as fair and unbiased jurors. Although there would still be strong personalities to contend with, the likelihood of the jurors giving up their power to a more trained juror, as was the case in Solove’s scenario, would be less likely to occur.
Concerns and Considerations
Before we could ever institute a professional juror system, there are other concerns that would need to be addressed.
For one thing, what makes someone qualified to be a juror? If candidates are too educated, will they be unable to relate or understand the actions of the less educated?
There would have to be an agreed upon basic training system in place, and that system would need to be evaluated and updated on a yearly basis. If there were multiple juror levels, as I suggested above, professional juror candidates with more education and work experience would be eligible for the higher juror levels. Regardless of juror level, there would also have to be continuing education courses, since laws change so frequently.
Quality control would also be another concern. I suppose that the standards used to evaluate professional jurors would probably be similar to the standards used to evaluate judges. Since jurors typically do less paperwork, and since they make their decisions as a group and not as individuals, it may prove difficult to determine if each juror is sticking to an established set of standards.
Even though there would be a regular staff of professional jurors, the element of randomness would still be essential to lessen the possibility of jury tampering or bias. As long as professional jurors are trained at their particular level, it shouldn’t matter which jury they get put on. Therefore, if their numbers were chosen at random by a computer program, for example, they would not know which trial they were on until they walked into their assigned courtrooms.
Lastly, one reoccurring issue throughout the discussion boards on this topic has included the possibility that professional jurors would become jaded over time. I think there are certain ways to avoid this problem, however.
First of all, there are many different fields of law, (family, corporate, environmental, criminal, international, etc.). There could be limits restricting how long professional jurors are allowed to serve within any one field of law; these limits could be time based, (e.g., every six months), or trial based (e.g., every 4 cases). Jurors would be less likely to get bored if they had to switch to a different field on such a frequent basis.
Next, there could be time limits on serving as an active juror. Perhaps professional jurors would only be allowed to serve for three years, for example. After they serve for the designated amount of time, they could then spend a year or so doing quality-control or something else within the judicial field, provided they did not serve as an active juror for that time. After some time away, they could return for another three years of service, if they so choose.
Implementing a professional juror system could improve judicial efficiency. Likewise, the system could create many new jobs for Americans, which we need desperately. Furthermore, a professional juror system would eliminate citizens losing time and money going in for jury duty.
However, many people argue that serving on juries is our duty as citizens.
I agree that living in this country does come with significant responsibilities. Nevertheless, most of the ideals about civic duty stem from a time when the only citizens being called to a jury were white male educated landowners who could afford time away from their jobs.
Times have changed immensely since the creation of this country, and many of the old views concerning citizenship and duty simply do not work in today’s world. I’m not saying that citizenship should not exist, I’m simply saying it needs to be re-examined.
I want to make sure that everyone receives a fair trial, and such a system could provide that. Furthermore, I do not want citizens to go through the burden of losing time and money just to fulfill an antiquated ideology. People have to work to keep themselves afloat, and losing time and money by serving on a jury, especially when you’re not really equipped to serve on said jury, seems absurd and ineffective.