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Can I have a ‘jury of my peers’?

October 28, 2011

1. History, 2. Law, 6. Trial

Can I have a ‘jury of my peers’?

No.  Next.

Alright, let’s walk through this misconception.

You can easily dismiss the concept by defining your “peers.”  For me, that would be a father, male, age 52, born in February, Lithuanian heritage, three kids, lawyer, teacher, someone who grew up in northeastern Pennsylvania – left for California for ten years – then came back, etc.  You see the point?  There’s no end to how closely matched you can get when you look for a “peer.”

The history of this concept is actually quite repulsive.  Remember the Magna Carta?  Yeah, we’re talking about something written in 1215 (and modified several times afterward).  Back in England at that time, the King sitting in London didn’t have centralized control over the country.  The Barons – big land owners numbering 25 or so – ruled their lands in any way they pleased.  The King wanted to establish a common law throughout the land.  The Barons wanted the King dead (they killed the last one that tried it).  They compromised.  One aspect of the compromise became this phrase “jury of your peers.”

Barons were miscreants.  They treated the people that lived on their lands, mostly farmers, in any fashion they desired.  It was not uncommon for a Baron’s idiot child to rape a peasant.  Rape has been a crime forever.  So with a common law enforced throughout England, the idiot child would be facing prosecution.  Image the conviction rate if the jury was all peasants.  So the Barons agreed to this “common law” concept only if the jury was made up of “peers” – other people of money and privilege.  I’m not suggesting that Barons and their like continued to rape and pillage with impunity, but they were able to defend their actions to people that lived their same lifestyle.

Throughout time, the members of juries have been selected on this “inclusive” model.  Juries included people for various reasons – knowledge of the law, knowledge of the particular case, station in life, etc.

In America, we take – and always have – precisely the opposite position:  We exclude people.  We take out those with knowledge of the case and those that otherwise demonstrate a bias.  We look for 12 (plus alternates) people that can decide a case based purely upon the evidence presented in court.  If there’s been too much press about a case, we exclude people that have formed a strong opinion based upon those reports – and sometimes move a trial from the place of the crime to another county to wash out the effect of press reports.  We exclude people that have a bias towards the police.  I had a woman say one time that the “police wouldn’t arrest someone unless they were guilty.”  We exclude people that discriminate based upon race, social status, etc.

We exclude folks in two manners.  For those that have a bias, the DA or I will make a “for cause” challenge.  The judge usually asks the prospective juror if he or she feels that they can set aside the asserted bias and decide the case based purely upon the evidence presented in court.  If they say “no” or are otherwise big-time biased, the judge excludes that person.  Be careful here – judges see through people that say all the “right” things to get dismissed from jury duty.

The second manner is “peremptory” challenges.  These are done privately with a piece of paper going back and forth between the DA and me.  Each of us gets a limited number of these challenges.  I might strike someone, for example, because their son or nephew is a cop.  The DA may strike someone because they look like a stoner, and the defendant is charged with possession of weed.  It doesn’t matter why we exclude these people unless we are targeting a certain population – all people of a certain race or gender, etc.  I knew a DA that targeted people with college degrees.  “The dumber the jury the better,” he said.  Whew.  Talk about clueless.  Some of the smartest people I’ve known never went to college, and some of the dumbest people I’ve known did go to college.

America has never had an “inclusive” system of jury selection.  A “jury by your peers” is inclusive and centuries out dated.  You’ll get a jury that enters a trial as cleanly as possible, with no opinion one way or the other.  At least in theory.

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About Clyde

Clyde is the lead attorney in the firm. Licensed to practice in 1993, he's also taught Constitutional and Criminal Law for several years at a private university, primarily at the Master's level.

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