Polluting the jury pool
In today’s hyper connected world of 24 hours news and in-your-face social media that tweets breaking information before you have time to read it, one of the great concerns among legal professionals is keeping the jury pool free from pollution. As information is more widely and easily available, more and more people are becoming intimately aware of details of even routine criminal cases in their towns.
This presents an added challenge in weeding out those potential jurors who’ve already heard about a case and who might have made up their minds about the guilt or innocence of a defendant. The core right, of course, is the right to trial by an impartial jury.
But there’s another concern, one that not many pay attention to or can do much about: and that’s the post-verdict informational session usually conducted between the judge and the jury. This has happened after every trial to verdict I’ve been a part of: the judge slips into the jury deliberation room, chats with the civic minded people who’ve just discharged their important duty and proceeds to give them the dirty details of the case (and occasionally to answer questions).
Invariably, this discussion comes around to the defendant. And when discussing defendants, there’s nothing juicier than discussing a defendant’s criminal history. The jurors, besotted by curiosity, may ask questions about the defendant – to know what kind of person the defendant is: has he done this before? Does he have a record?
Some judges may choose to ignore such questions and some may not. Some public defender wrote in to the Legal Ethics Forum to ask that very question: what do you do with a judge who reveals the defendant’s criminal history to jurors post-verdict?
This past summer I tried a criminal case in federal court. After the guilty verdict but before the jurors were dismissed, the district court judge told them about my client’s prior bad acts. I would like to write an article and argue that this is wrong because it damages the future jury pool. If it cannot be done in Texas state courts, why should the federal courts be any different? Could you tell me of any articles or periodicals dealing with this issue?
I don’t know of any articles on this issue, but I do have some thoughts (surprised?). This is definitely something to be concerned about, but realistically we may be powerless to stop it.
A friend of a friend told me the story of a potential juror during voir dire a few years ago who was the lucky recipient of this “extra” information post-verdict in a trial for which she was a juror a long time ago. During this current voir dire, the story goes, she expressed her reservations about the criminal justice system because of that very fact: that she may not have all the information she’d like. “We found out later that the defendant had a lengthy record for this kind of thing”, she said. “If we’d known about it during the trial…” and her voice trailed off.
We can all finish her sentence, can’t we? “…we’d have convicted with much less deliberation.” There was a certain distrust in her voice, I’m told, about the system and of the defendant. This juror had been contaminated. How could she ever believe the defense? What were they hiding? Was the defendant a really bad guy? There’s no way she’d acquit, is there?
Telling the jury the behind-the-scenes operation of a trial is problematic, in my opinion. There’s a reason why some prior convictions aren’t introduced into evidence: primarily to avoid that very reaction. “Once a criminal, always a criminal” is a sentiment we strive very hard to avoid (unless, of course, you’re a sex offender, in which case, God help you. And even then…). It’s easy to think that once a trial is over, we can conspiratorially reveal the “secrets” of the trial to the jurors, like some piece of gossip we were just dying to reveal.
Doing this places an inordinate amount of importance on the fact of such prior convictions and elevates its function in the equation of guilt or innocence – which is to say it gives prior convictions any place in that equation, where it should have none.
That juror may have already discharged her service for that trial, but just as surely as the Sun rises in the East, she will be called for jury duty again and now, she will no longer be an acceptable juror for any criminal trial.
If that isn’t polluting the jury pool, I don’t know what is. And there’s not a damn thing we can do about it.
Bonus: On a related note, see this amusing story of a judge who served as a juror in the trial of a defendant over whose previous trial on identical charges he had presided. What a clusterf*ck of a sentence.
A number of years ago, I was a juror in a criminal case. In Mass, the sentencing can be held immediately after the verdict. After the judge thanked us for our service (and refused to say anything beyond the facts of the case), he invited anyone who was interested to the sentencing.
And yes, there was the prosecutor’s discussion of the defendant’s past. That might have affected things had it been known, on the other hand I was amused that my fellow jurors had correctly inferred that the client was “frequent flyer” because of testimony by his family about not going to the jail after he was arrested that night, and first seeing him at arraignment court the next day — which they inferred meant the family was quite familiar with what to do post arrest. (Their testimony was admitted on the issue of injuries to the client and whether he had lawfully defended himself from excessive force or whether he’d assaulted the officer during the arrest.)
I don’t like the idea of a judge commenting on anything that’s not in the record, tho I can see a judge explaining the legal rules behind certain rulings. On the other hand, an interested juror could find out all of this the next day with a quick google search if the case has gotten any press.
I think given the proliferation of news and the increased accessibility, it would be a good idea to questions jurors about not only whether they’ve served before but also whether they know anyone who has, whether they’ve read anything on jury duty, etc.
this is a tuff one. but as far contaminating the jury pool i really think that’s putting it a little harshly. for the most part it’s public info. so if they really wanted to know there’s really no way to stop them getting that info. so to say that a judge should not share this info. is a bit of… (well i’m not sure what it is) but telling judges that they can’t fill in the details is going a bit far. in the example of the woman said… well had we known about the defendants past history… she should have been reminded that even though the defendant has rob many banks in the past he’s not on trial for those he’s only on trial for this one bank robbery. it’s your job to determine if he robbed this bank on this day and not what he has done in the past.
There’s a difference between a judge telling the jurors that the defendant had a record and a juror doing independent investigation.
The first is passive – the juror has to do nothing. The second is proactive. Also, criminal records aren’t easily available online. The juror might have to go to the police dep’t to find it. I don’t think many would bother.
As to the further “curative” instruction, that’s putting an awful lot of trust in the judge, who’s the one revealing the information in the first place.
It is unavoidable? Perhaps. Which only strengthens the need for us to be better prepared and alter our questioning keeping this in mind.