“And by tradition,” the judge continued, “we will now allow the prosecution and the defense to each remove 11 members of the jury pool. They do not have to explain their decisions. This is part of our Voir Dire process.”
I had been sitting in the courthouse for 7 hours. And now, with the flick of a pencil, my whole day was about to be crossed out. It was nearly 4 pm and I was part of the first pool to be selected from among 200 prospective jurors in Washington, DC. This day was just like any other day in the criminal courts system – a bastion of tradition and inefficiency that I’m now convinced wastes a lot of time without producing better juries.
Exhibit A: A courtroom of 56 prospective jurors being whittled down to 14 finalists in a rather arbritrary fashion.
The judge explained it very clearly. There are 56 people. They interview the first 36 and ignore the rest. From these 36, each side strikes 11 people arbitrarily, and 14 remain. 12 of these 14 actually decide the defendent’s fate. This process only took 8 hours. Multiply that by 56 and you get a total of 8 weeks of labor – two months – wasted.
Interestingly, during this ordeal the defendent, easily the youngest person in the room by 10 years, sat at his table, bored. At times he doodled on a legal pad, or listened to a walkman (not an iPod, mind you – an old fashioned walkman!). I think there might have been a casette in there even. He didn’t come from money, and this would not be a jury of his peers.
Exhibit B: Like me, all of my neighbors on the jury pool wanted to serve but would be denied.
I sat beside inner city school teachers, a lawyer who fought for labor unions, and I work at a nonprofit that helps the worlds’ poor. We were all rejected, as if serving society makes us unworthy to fairly decide the fate of another human being. In fact, I think most of the people in the room would make fine jurors. People are basically good and want to do the right thing. So why does a system that assume defendents are innocent until proven guilty grant power to its caretakers to arbitrary treat jurors as if they are guilty of poor judgment?
Exhibit C: Most potential jurors have been in pools before and never selected.
Would we allow any system in democracy that repeatedly rejects the same people for the same reasons, and expect justice?
Here is what I would do instead – inspired by Fantasy Football:
First, let lawyers ask all their questions to jurors ahead of time, before we even get to the courtroom. If the only reason people come in person is to swear an oath, there are easier ways to ensure honesty.
Second, use 95% of prospective jurors by efficiently drafting jurors into up to 5 juries from the same pool. As each juror goes before the judge to swear to his statements and respond to any follow-up questions, let 10 lawyers participate instead of 5. After all 80 have had their chance to make their case why they should or should not be on a jury, each lawyer gets to draft one person from the pool to put on their own jury. The second pick for that same jury comes from the other side. So if prosecution gets 1st pick, defense gets second, then 2nd, 3rd, 4th juries are selected simultaneously like we draft players into a fantasy football league.
Drafting jurors means that nearly everyone gets to serve. It is 5 times more efficient because I make the assumption that a person unfit to serve on any one jury is unfit to serve on all five. Also useful is to realize that many reasons one juror is unfit are case-specific. Another lawyer can draft him/her instead if the only reason he/she would be eliminated was because he lived near the crime.
This may create juries that are more divided, and less likely to reach a unanimous verdict. But perhaps this means cases need to be stronger, more focused, more compelling, so that jurors chosen by both sides will agree. Or lawyers should be looking for reasonable people instead of pidgeonholing people by demographics during jury selection. Lawyers hate having an intelligent person on a jury if the case can be dumbed down.
A totally opposite approach that would be fairer is to eliminate lawyer knowledge of jurors altogether and model it after the way musicians audition for an orchestra. They play behind a sheet and only the music passes through. Since starting this, many more women have earned a spot in orchestras.
Verdict: Anything is more efficient that our criminal justice system for jury selection. But I doubt anything will come of this in the US. It will happen elsewhere first, and America – like all innovation – will be eventually catch up.