It's Evident


Jury Selection in Highly Publicized Trials: The Quest For Ignorance
Alan Balfour, J.D., Ph.D., Associate Professor, University of South Florida

“The jury system puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury. I wish to so alter it as to put a premium on intelligence and character….”
Roughing It

Mark Twain penned those words in 1872. Presumably, they were largely true then. Arguably, they are even more true in 2013. The desire to seat jurors who are ignorant of and uninvolved in the world around them seems a fool’s errand in both intent and practice. Twain’s goals are noble goals. Efforts should be made to accomplish them.

I wrote that introduction before really researching the topic. Having done so, I have changed my mind. I now support the pursuit of ignorance. I will explain why.

The George Zimmerman/Trayvon Martin trial again brought attention to the issue of jury selection in highly publicized trials. Both sides desired to find potential jurors who were completely ignorant of the existence of the case. This raised the issue of whether one needs or even wants the most ignorant among us to serve as jurors and decide issues of great importance to others and to society. It certainly is not the group we would typically look to decide any other important issue. Yet both sides sought such disconnected persons. What is so great about ignorance? Why should we search so hard for it?

Diogenes used a lamp to search for an honest man. P. T. Barnum relied on a sucker being born every minute. It is unclear what device any attorney could use to locate those without awareness of this trial. Asking potential jurors in the area whether they have heard about the case brings out Twain’s concern for perjurers. Regardless of how they might testify, it is hard to imagine that there is anyone in the area from which the juror pool is selected that has not heard about or discussed the case. While there is incontrovertible evidence that many citizens do not read newspapers, it is less certain that they do not acquire awareness from television or online sources. In racially-tinged shootings of unarmed teenagers, total ignorance seems highly unlikely. People talked about the case everywhere from neighborhoods to stores to churches to schools to playgrounds. While it is true that a large proportion of the population may not have a preformed opinion on Group of 8 fiscal policy or the destabilization of the Egyptian government, it is hard to imagine that anyone in the area of the trial could truly say he or she had not heard about it or discussed it. It would be difficult to find such a claim credible, yet both the prosecution and the defense made extensive efforts to find potential jurors who not only said they had not yet made up their minds, but actually had no minds on the subject to have made up. Why both sides would want to find such people, as if they actually existed, despite perjurious testimony to the contrary, in numbers great enough to seat a jury, requires examination and assessment.

Twain did not want such people. He wanted to do better. Should we not also? What is so evil about being aware of socially important issues? The inclination to pre-judge, that is what. Social science research has shown that all people begin forming opinions about matters as soon as they hear of them. Virtually no one waits for all the evidence to come in. This is true even of the highly intelligent, sophisticated types approved of by Twain. It is true not only of layperson jurors, but also of judges, and even college professors grading students’ term papers. An opinion is formed at first impression. not at culmination. It is possible that opinion will change in light of subsequent evidence, but even that circumstance is fraught with difficulty. It seems once one has made up one’s mind about something, subsequent inconsistent information is disproportionately discounted and confirming evidence is overvalued. Professors believe that papers that start badly are likely to be bad throughout and look for evidence to confirm that conclusion. Similarly, an initial good impression can result in future stumblings being evaluated as mere aberrations in an overall good report. Jurors and judges do the same thing.

This problem is very grave and very widespread. The readers of this piece likely consider themselves above this fray and, if serving on a jury, believe they could and would suspend judgment until all the evidence is in. They would be mistaken. The inclination to pre-judge is pervasive. Everyone does it all the time in everyday living. We might delude ourselves into believing that while it “is true that others do this, I would not.” There is nothing to indicate that we can turn off this inclination at will. Worse yet, there is substantial evidence to indicate that we are likely unaware that we have the problem. That type of problem does not get fixed.

Who among those reading this had not already made up his or her mind about O. J. Simpson, Casey Anthony, Jodi Arias, or George Zimmerman? There is a high positive correlation between people who read and those who watch news coverage on television. There may even be a sense among some that since we have CNN and Fox News to cover these trials, we no longer need the trials themselves. The viewers already have their minds made up. It is true that jurors are sequestered from media coverage during the trial but in these highly publicized cases, a great deal of posturing has been reported before jury selection even begins. Historically, before widespread social media, it was pretty easy to find jurors without preconceived notions. Now it is not. And therein lies the rub. It is possible we need ignorant jurors now more than ever.

Justice requires trials to be fair. A central component of fairness is to base one’s decision on the evidence provided, and only on the evidence provided. Further, the evidence presented in court is subject to challenge and cross-examination by opposing counsel. This is clearly not true of evidence provided external to the courtroom. Could evidence from outside the courtroom taint the process? Absolutely. Should we be concerned about it? Absolutely. If we have pre-formed opinions not subject to cross-examination, we cannot have a fair trial.

What about the other shortcomings of lay jurors lamented by Twain? Should we not be seeking skill and character? Presumably, yes, but what if we did not get it? What is the cost to justice? Barring a juror with a prejudiced worldview, probably not as much as pre-judgment. Identifiable good qualities are presumably advantageous but cannot be presumed to be necessary. An empty mind is actually more valuable than a pure heart.

So we end up searching, almost ridiculously, for the most ignorant members of the neighborhood. Is it demeaning? Yes. Does it make the justice system the brunt of jokes? Yes. Is ignorance more valuable than character, intelligence, and skill? Yes. That is the way it is.

As long as justice requires trials in the locale, ignorance must be sought more than ever. There are just too many sources of pre-judgment. Moving trials to more remote locations may reduce the problem of widespread awareness but comes at a cost to witnesses and representation, and may still not succeed in guaranteeing ignorance in the most publicized of cases. The quest for ignorance seems ignoble, but it is not.