Manufacturing the Perfect Jury
Law firms across the nation may be spending over six-figures per trial to retain the services of jury consultants, which translates to an annual salary of over $500,000 for experienced consultants. Meanwhile, courts across the United States have limited the permissible bases of peremptory challenges, but upheld the principle that a jury’s decision should not be a result of prejudice or bias. See Neil Vidmar & Valerie P. Hans, American Juries 96-102 (2007). A growing number of courts and commentators are beginning to question the institution of peremptory strikes, while other countries are expanding the use of both peremptory and for-cause strikes. The opposing views raise the question: what is a good jury?
For the litigants and attorneys involved in the trial, the answer is undoubtedly ‘a jury that returns a favorable verdict.’ However, from a neutral vantage point the answer is less clear. Since we cannot measure how good a jury is with a results oriented approach (we summon the jury to decide a case for the very reason that we do not know which version of facts are true), we should decide what the role of the jury is and how we can best provide a body of people to fulfill that role. Is the jury meant to be a sterile fact-finding body, devoid of the biases and prejudices that the experiences of life sometimes instill in humans? Or is the jury meant to be a cross-section of society whose thought processes and decisions are guided by and reflect the emotions and philosophies of contemporaneous society?
Consider the case of Harris v. National Women’s Health Organization of Delaware, Inc. et al. Of the one hundred jurors summoned for the abortion related case, the judge struck fifty-four for cause. See American Juries at 84. When a judge eliminates the majority of the summoned jurors for a single shared bias or prejudice, is our legal system screening bias and prejudice or fabricating an unrepresentative jury? In some instances, the vast majority of jurors may have developed a generic prejudice for a particular subject matter. See id. at 113-14. A generic prejudice occurs as the result of heightened attention and scrutiny of a particular matter in society, e.g. child abuse. See id.
I believe that striking potential jurors for cause and the exercise of peremptory strikes are appropriate and beneficial even in problematic cases like Harris and instances of generic prejudice. Society’s beliefs form the basis of law through the legislative process. With society’s beliefs already manifested in the law, the court and litigants should strike jurors with biases or prejudices, even if the majority of jurors summoned share that bias or prejudice. As an institution that adjudicates disputes under the law, courts must strive to solidify certainty in the law. Even if a randomized jury summon generates a pool of potential jurors where the majority of the jurors share a common bias or prejudice germane to the litigation, the court has a duty to strike for cause any juror with bias or prejudice and the litigants should have a right to peremptory challenges. Striving to manufacture a jury that will objectively find the facts in accordance with the law is more important than fielding a jury that is a representative cross-section of society.