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Religion and the Jury’s Composition

Brian H. Bornstein and Monica K. Miller

in God in the Courtroom: Religion's Role at Trial

Some attorneys rely on “folklore” or personal hunches when selecting a jury, while others use a more scientific route, taking advice from trial advocacy and jury selection books that provide ... More

Some attorneys rely on “folklore” or personal hunches when selecting a jury, while others use a more scientific route, taking advice from trial advocacy and jury selection books that provide information on selecting a favorable jury. Either method could result in the selection of a jury based on potential jurors' demographic characteristics, including religious characteristics. Additionally, legislative acts have affected the religious makeup of juries throughout U.S. history. Laws or legal procedures make it unlikely or impossible for members of some minority religions to be selected. In recent decades, legislation has been established which makes it unconstitutional to exclude individuals from jury duty based on their religion. Other laws allow some citizens to opt out of jury service on the basis of their religion. As a whole, this chapter highlights the legal debate surrounding procedures that affect the religious make up of the jury.Less

Jury Selection: Effectiveness and Ethics

Amy J. Posey and Lawrence S. Wrightsman

in Trial Consulting

This chapter examines the effectiveness of what is referred to as “jury selection” and evaluates the ethics of such a procedure. In describing the viewpoints of some of the critics of the process, it ... More

This chapter examines the effectiveness of what is referred to as “jury selection” and evaluates the ethics of such a procedure. In describing the viewpoints of some of the critics of the process, it shows that, sometimes, discussions of ethics and effectiveness are confounded. Some critics seem to be saying “Jury selection by outsiders shouldn’t be done, and it doesn’t work anyway.” The chapter attempts to separate these issues, but in regard to each, the answer is not clear.Less

Jury Selection: Case-Specific Approaches

Amy J. Posey and Lawrence S. Wrightsman

in Trial Consulting

Chapter 7 described how legal consultants sometimes administer sets of attitude statements that assess broad biases that many prospective jurors inevitably hold. This chapter examines how trial ... More

Chapter 7 described how legal consultants sometimes administer sets of attitude statements that assess broad biases that many prospective jurors inevitably hold. This chapter examines how trial consultants may aid in jury selection using a different framework, one built on identifying the biases of jurors that are relevant to that particular case. Two cases are described in some detail; the two cases have similarities and differences. Both led to criminal trials, and in both, the side represented by the trial consultants had rather unusual challenges in finding jurors sympathetic to its side. In both cases, the trial consultants worked on a pro bono, or unpaid, basis (which is quite atypical). In one case, the consultants assisted the prosecution, which is also atypical.Less

Relying on Luck

Neil Duxbury

in Random Justice: On Lotteries and Legal Decision-Making

Randomization rests at the heart of the Anglo-American jury system. Apart from jury selection, and leaving aside the fact that lotteries are often used for the purpose of raising state revenue, there ... More

Randomization rests at the heart of the Anglo-American jury system. Apart from jury selection, and leaving aside the fact that lotteries are often used for the purpose of raising state revenue, there appear to be no other areas of social life in which sortition is the preferred method of reaching decisions or allocating tasks and resources. This chapter argues that the blindness of the lottery does not have to be viewed entirely negatively. But it also illustrates how random selection might be unintentionally compromised by citing a number of court cases. Random selection is intended to provide defendants and litigants with the opportunity to be tried by a representative cross-section of the population. The issue is whether juries ought ideally to be cross-sectionally or proportionally representative — whether fairness requires that all citizens be equally eligible for jury duty or that there should be demographic balance in the jury rolls. The basic point of this chapter has been to try to identify the primary advantages of chance and randomization (and hence, luck) for social decision-making purposes.Less

Racial Bias and Injustice in Jury Selection and Trial

Jonathan Y. Okamura

in Raced to Death in 1920s Hawai i: Injustice and Revenge in the Fukunaga Case

This chapter begins by reviewing one of the major racial injustices in the Fukunaga case—the voir dire examination of the prospective jurors for his trial. The great majority of those who served on ... More

This chapter begins by reviewing one of the major racial injustices in the Fukunaga case—the voir dire examination of the prospective jurors for his trial. The great majority of those who served on the jury stated they had formed an opinion about Fukunaga’s guilt or innocence, which was probably that he was guilty because he had confessed to the crime. Racial injustice continued with the trial, evident in the rush to have him convicted and executed. Without offering an insanity or other defense, Fukunaga’s attorneys called no witnesses and offered stipulation that Fukunaga killed Gill Jamieson. Questions from the prosecution and testimony from their key witnesses demonstrate how Fukunaga was subject to racialization as Japanese instead of being tried as an individual without regard to race.Less

One Concept of Justice

Matthew Lockwood

in The Conquest of Death: Violence and the Birth of the Modern English State

Chapter 4 explores the coroners’ jury, its makeup, its purpose and its relationship with the coroner. This section contends that the structure of the early modern coroners’ jury indicates that it was ... More

Chapter 4 explores the coroners’ jury, its makeup, its purpose and its relationship with the coroner. This section contends that the structure of the early modern coroners’ jury indicates that it was designed to provide the coroners’ inquest with local knowledge and expertise at the same time that it incorporated checks on the potential biases of local residents charged with investigating their neighbors. Focusing primarily on trial juries, traditional interpretations of early modern English judicial tribunals have highlighted their function as a site of negotiation between state and local society and between central and peripheral conceptions of justice. By examining a wider range of juries the chapter stresses the early modern jury's function as a site of state control. In an era with few official judicial officers, the effective maintenance of order required local information and local knowledge. In order to secure this crucial information without sacrificing state control over justice, a strategy of jury composition which blended geographical diversity with status qualifications was employed. Thus, the seeming contradiction in the early modern legal system witnessed by historians and contemporaries alike between discretion and impartiality was in fact a method of obtaining much needed local information without ceding the state's definition of justice to peripheral interests.Less

Jury Selection: Measures of General Bias

Amy J. Posey and Lawrence S. Wrightsman

in Trial Consulting

Given the fragile relationship between jurors’ demographic classifications or internal qualities and their verdicts, trial consultants have followed two pathways in advising and evaluating jury ... More

Given the fragile relationship between jurors’ demographic classifications or internal qualities and their verdicts, trial consultants have followed two pathways in advising and evaluating jury selection: a general approach and a case-specific approach. This chapter discusses each approach, and then focuses on strategies consistent with the general one.Less

Jury Selection in the Post-Batson Era

Barbara O’Brien and Catherine M. Grosso

in Criminal Juries in the 21st Century: Psychological Science and the Law

In Batson v. Kentucky (1986), the US Supreme Court sought to eradicate racial discrimination in jury selection by prohibiting the exercise of peremptory strikes based on race. This chapter reviews ... More

In Batson v. Kentucky (1986), the US Supreme Court sought to eradicate racial discrimination in jury selection by prohibiting the exercise of peremptory strikes based on race. This chapter reviews the evidence that Batson has failed to protect jurors from race-based strikes and the reasons for this failure. The test for establishing racial discrimination set forth in Batson suffers from design flaws that make its enforcement difficult given common psychological mechanisms at work in the decision-making process and which may be exacerbated by the jury selection process itself. Batson seeks to remedy only intentional discrimination. Moreover, its capacity to ensure diverse juries is limited by the stages of jury selection that precede its application. Enforcing Batson effectively is critical to the system’s integrity, but no simple solutions exist to remedy the stubborn persistence of racial bias in jury selection. All of this suggests that measures are needed to strengthen Batson’s protections.Less

The Day of a Jury of Peers

Daniel Berrigan

in The Trial of the Catonsville Nine

This chapter presents a script from the play, Trial of the Catonsville Nine, featuring conversations between the judge and potential jurors during jury selection.

Law: Supreme Court Challenges and Jury Selection

Steven J. Brams

in Game Theory and the Humanities: Bridging Two Worlds

This chapter begins by analyzing two games that were played between the president and the Supreme Court. More specifically, it describes a game played between President Richard M. Nixon and two of ... More

This chapter begins by analyzing two games that were played between the president and the Supreme Court. More specifically, it describes a game played between President Richard M. Nixon and two of his appointees to the Supreme Court, who clashed over the release of White House tape recordings made during the Watergate crisis of 1974. The chapter shows that by threatening not to release the tapes describing an attempted cover-up of a burglary that he had instigated, Nixon precipitated his own downfall. It then turns to how President Franklin D. Roosevelt attempted to “pack” the Supreme Court by appointing additional justices who would favor New Deal legislation, but his strategy backfired and he was forced to retreat. The chapter also develops a model of jury selection by the prosecution and defense, based on a two-person constant-sum game.Less

Diminishing Support for the Death Penalty: Implications for Fair Capital Case Outcomes

Amelia Courtney Hritz, Caisa Elizabeth Royer, and Valerie P. Hans

in Criminal Juries in the 21st Century: Psychological Science and the Law

This chapter presents and analyzes the current state of law and research on the capital jury. First, it presents the legal framework for capital jury selection and research on the “death-qualified” ... More

This chapter presents and analyzes the current state of law and research on the capital jury. First, it presents the legal framework for capital jury selection and research on the “death-qualified” jury, whose members are eligible to serve in a capital case. It also discusses research showing that the death-qualification process skews the composition of the capital jury so that it fails to represent the community and is more conviction-prone. Next, the chapter considers the contemporary death penalty in the United States, noting the challenge that comes from declining support for capital punishment and the need to select representative capital juries. The chapter concludes by discussing the implications of the current trends in support for the death penalty and research on capital juries.Less

Jury Selection Can Effectively Identify Biased Jurors

Brian H. Bornstein and Edie Greene

in The Jury Under Fire: Myth, Controversy, and Reform

Various jury selection procedures strive to ensure the selection of fair and impartial jurors. But the questioning of prospective jurors, termed voir dire, often fails to deliver on the promise of ... More

Various jury selection procedures strive to ensure the selection of fair and impartial jurors. But the questioning of prospective jurors, termed voir dire, often fails to deliver on the promise of impartiality. This chapter examines the role of explicit biases in prospective jurors who sometimes fail to disclose relevant beliefs and experiences. It also examines implicit biases—unconscious attitudes that affect assumptions about ourselves and other people and that distort judgment and behavior—in jurors, attorneys, and judges. As a result of implicit biases, jurors have difficulty gauging their own impartiality, attorneys err when attempting to identify biased jurors, and judges overestimate jurors’ abilities to be fair. The chapter describes several ways in which jury selection can be made more effective and move closer to the promise of providing a panel of impartial jurors.Less

The Philadelphia Treason Trials, 1778–1779: FORMING THE JURY

Carlton F.W. Larson

in The Trials of Allegiance: Treason, Juries, and the American Revolution

Philadelphia County witnessed the war’s most significant treason trials. The grand jurors who screened the proposed treason indictments were wealthy, prominent Philadelphians who had played ... More

Philadelphia County witnessed the war’s most significant treason trials. The grand jurors who screened the proposed treason indictments were wealthy, prominent Philadelphians who had played significant roles in resistance activities, yet they indicted persons accused of treason at a lower rate than other grand juries did for other crimes. The chapter then introduces the trial jurors. Only 58 men filled 264 identifiable jury seats, and many of these served only once, leaving the other jurors to serve on multiple trials. By working backward from the jurors’ demographic characteristics, one can determine the strategies that defense counsel used in selecting jurors. Under eighteenth-century practice, defendants could peremptorily strike up to 35 jurors, whereas the prosecution could strike none. The chapter presents evidence suggesting that defense counsel used their challenges on the bases of religion, age, ethnicity, wealth, occupation, and political beliefs to shape juries that were more favorable to the defense.Less

LGBTQ in the Courtroom: How Sexuality and Gender Identity Impact the Jury System

Jordan Blair Woods

in Criminal Juries in the 21st Century: Psychological Science and the Law

This chapter reviews a limited but emerging body of research on biases that arise and affect lesbian, gay, bisexual, transgender, and queer (LGBTQ) jurors as well as juror decision-making when LGBTQ ... More

This chapter reviews a limited but emerging body of research on biases that arise and affect lesbian, gay, bisexual, transgender, and queer (LGBTQ) jurors as well as juror decision-making when LGBTQ individuals are involved in criminal cases. The chapter also discusses recent research and legal developments surrounding jury selection and LGBTQ identity and describes debates over best practices to identify and combat anti-LGBTQ juror biases. Finally, the chapter reviews gay and trans “panic” defenses in cases involving the murders of LGBTQ individuals and examines other challenges that LGBTQ defendants and victims face in different criminal contexts. Although there is a need for future studies, the available research illustrates how challenges linked to sexuality and gender identity in the criminal jury system can compromise legitimacy and fairness in the criminal justice system more broadly.Less

The Way Forward: The Socio-political Race Approach

Tanya Katerí Hernández

in Multiracials and Civil Rights: Mixed-Race Stories of Discrimination

This chapter will first summarize how the book’s review of multiracial discrimination cases reveals the enduring power of white privilege and the continued societal problem with non-whiteness in any ... More

This chapter will first summarize how the book’s review of multiracial discrimination cases reveals the enduring power of white privilege and the continued societal problem with non-whiteness in any form. Specifically, the cases illustrate the perspective that non-whiteness taints rather than the concern that racial mixture itself is worrisome. Yet this insight is lost in the midst of the multiracial-identity scholars’ singular focus on promoting mixed-race identity. Multiracial victims of discrimination will be better served by legal analyses that seek to elucidate the continued operation of white supremacy. Such a focus will also better serve all Equality Law and public policies. But this can only be done by shifting away from a focus on personal individual identity recognition to a focus on group based racial realities. The chapter concludes with a proposal for an explicit “socio-political race” lens for analyzing matters of discrimination rather than the Personal Identity Equality perspective that misapprehends the social significance of race in the assessment of equality problems. The book’s emphasis on a socio-political race perspective meaningfully preserves an individual’s ability to assert a varied personal identity, while providing a more effective tool for addressing racism and pursuing equality.Less