Friday, September 10, 2010

Jury Guesswork and Hunting

By Mike Dorf

My latest FindLaw column takes aim at a recent ruling by a New York State trial judge who called a mistrial after determining that the defense attorney in a case before him had used her peremptory challenges to dismiss all the prospective jurors who are registered hunters.  Here I'll add two points (unrelated to one another):

1) the facts are quite intriguing.  The defendant Robert Robar is a hunter who allegedly shot at another hunter who had wandered onto the property where Robar was hunting.  (Insert Dick Cheney joke here.)  Robar's lawyer used her peremptory challenges to eliminate licensed hunters from the jury.  I inferred from that fact that the lawyer was worried that hunters would be especially unsympathetic to someone who shot at a hunter.  But one could almost as easily imagine that the prosecutor might have used his peremptories to eliminate hunters from the jury, relying on the directly contrary but prima facie plausible hypothesis that hunters would sympathize with Robar, thinking that they themselves might end up in the dock if they accidentally shot another hunter.  Given that, why did Robar's attorney assume that the hunters would more likely empathize with the victim than with the accused?

One possible answer is jury consultants.  I don't know whether Robar hired a jury selection expert but there are a great many such experts who ply their expertise about what sorts of people are likely to vote which way in particular cases.  Some of these judgments are based in general statistical patterns; others are based in mock trials (and are very expensive); many are based on folk wisdom, intuition, and guesswork.

But now we have a quandary: If the jury experts are wrong in a particular judgment--e.g., keep mailmen off of the jury in a dog-bite suit--then peremptory challenges based on their advice are unhelpful or even counter-productive.  But if the experts are right, then such challenges simply skew the jury in a potentially unfair way.  After all, peremptory challenges are used to eliminate unbiased jurors.  For them to play a legitimate role in jury selection, it must be that the pattern of correlation between characteristics (such as hunting or mail delivery) shows an actual bias, albeit one that won't show up under ordinary voir dire.  But that is hardly a given.  If government employees are more likely than others to vote to convict a criminal defendant (a correlation I've just made up), then that doesn't mean that government employees have a hidden bias not picked out by voir dire; it could just mean that they have a different perspective from others, but a valid one.  Accordingly, the case for eliminating peremptory challenges remains very strong.   

2) In the column I said nothing about the morality of hunting, which may strike some readers as odd, given my moral objection to the killing, exploitation of, and infliction of suffering on sentient creatures.  However, this was not a special exercise of self-restraint, for while I do think hunting is wrong, I think it is generally less wrong than, say, eating an egg mcmuffin.  The free-living animals killed for sport by hunters were not previously confined in  cramped spaces and did not have their young taken away for slaughter (as did the cows who produced the milk for the cheese and the hens who produced the eggs for the egg mcmuffin).  And hunters typically eat the animals they kill, so that hunting is no less "necessary" to human wellbeing than is consuming the products of animal agriculture if one thinks--contrary to the evidence--that eating animal products is somehow necessary for humans to thrive.


heathu said...

I was tripped up on one of Prof. Dorf’s observations: “But if the experts are right, then such challenges simply skew the jury in a potentially unfair way. After all, peremptory challenges are used to eliminate unbiased jurors.” Are peremptory challenges really used to eliminate unbiased jurors? If I were a defense attorney, I would be using all my peremptory challenges to eliminate the BIASED jurors – the ones biased against my client. They may not have had any outward appearance or statement of bias but I would assume the attorney is eliminating them based on a hunch or intuition that they may be biased against their client. Assuming opposing counsel is doing the same thing with his or her peremptory challenges, then such challenges do not skew the jury in an unfair way, but the entire peremptory challenge process helps makes the trial fair, and adds legitimacy to the trial. For instance, if judges alone picked jurors, an attorney who suffered an adverse verdict could complain that the judge stacked the odds against his or her client. However, when the attorney agreed that these 12 or 6 people should decide his or her case, that attorney loses much of the complaint that the jury was biased. The blame then falls on that attorney’s ability to pick jurors. Or am I just completely misunderstanding the peremptory process or Prof. Dorf’s observation?

[Grammatical note: ALL CAPS are used here as a way to emphasis text, like underline or italics. I just can’t figure out how to underline or italicize text in the DoL comments section.]

Michael C. Dorf said...

Thanks to heathu for the comment/question. When I say that peremptories remove "unbiased" jurors I mean that they remove jurors who have been determined by the judge not to be biased by the judge. I agree that the participation of parties' lawyers in jury selection could, in principle, make the verdict more acceptable, but I think that virtue is outweighed by the vices. Note, for instance, that with each side using its allotted peremptories, you can still skew the result because characteristics are not found in equal proportion. Thus, in this case itself, the defense use of peremptories eliminated ALL hunters.
[CAPS used here for the same reason as in heathu's comment]

AF said...

While clever, the suggestion in your article that the judge's ruling might be correct under "fundamental rights" doctrine strikes me as far-fetched. Fundamental rights would include the First Amendment. Is there any question that a juror's First Amendment-protected beliefs can be the basis for a peremptory challenge?

Michael C. Dorf said...

AF: Your objection shows why peremptories based on the exercise of a fundamental right might be allowed if something like strict scrutiny were satisfied, and why that might be easier w/r/t fundamental rights than w/r/t suspect classifications. But it doesn't show that my suggestion is wrong. Also, the line between suspect classifications and fundamental rights can be fuzzy. E.g., religion is suspect BECAUSE it is protected by the First Amendment.

To be clear, though, I made the suggestion only as a possibility. I think the whole doctrine here is peculiar.

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