Crime, Jury Duty, New York Times, State Judges, Television, Trials

Elie Draws Jury Duty: Day One -- Voir Dire

Elie Mystal has successfully avoided jury duty since he moved back to New York in 2003, but this week they finally caught up with him. This week, he had to perform his civic responsibility of sitting in judgment of his peers (like he doesn't do that enough already). Today he got an up-close look at the voir dire process in a criminal trial. While he was not picked, he feels like his McMurphy-esque fingerprints will be all over the case.

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Honestly, Law & Order, CSI, and The New York Times Are Ruining the Jury System.

I counted 12 Law & Order references between the time I started counting and the time, twenty to thirty minutes later, when the prosecutor herself talked about the show. The show’s influence on our cultural understanding of the criminal justice system cannot be understated. It’s at the point where if something happens in real court that doesn’t comport to what would happen in Law & Order, some people think the court got it wrong. As did the juror who expressed disappointment that the trial would not be wrapped up in one day “like they do on the show” and suggested that the judge must like to waste everybody’s time. The actors (or should I say the unemployed former waitresses and bartenders who called themselves “actors”) were positively giddy at the opportunity to see how it “really works” so they could bring truth to their next auditions.

And Law & Order wasn’t even really the problem, since all it did was sensationalize the system. CSI straight out lies about what is possible given the current state of criminology and, you know, the laws of physics. Much has been written on The CSI Effect. The best example I saw was the woman who sat in the jury box, on the record, and without being directly solicited on the point, said — and you have to imagine this being said very sincerely and quietly, all while chewing a wad of gum — “Just so y’all know, I can’t be convicting nobody on no circumstantial evidence.”

That’s not when I laughed. I didn’t laugh until the prosecutor said, “What? Could you… what do you mean by that?” Which, at length, was followed by the prospective juror adding, “I can’t just be convicting somebody because people be saying things.” I mean, at that point, come on. Let’s just say that I didn’t think I deserved the nasty look the judge flashed me for laughing audibly while he tried to explain the concept of hearsay. In any event, that prospective juror wanted hard evidence, and she was not picked.

But you don’t get to feel so good about yourselves, you people who don’t get your evidentiary standards from CSI and enjoy conjugating your verbs. You probably read the New York Times, but if you get your criminal procedure from the paper of record, you are likely to sound just as stupid as a CSI fan when you bring that crap to a courtroom.

Take the fine, young professional male who offered he was surprised to read in the Times that jurors didn’t have to convict people if a conviction would lead to an overly harsh sentence the juror didn’t agree with, but suggested he was ready to assume that awesome responsibility. It was priceless to see the look on the judge’s face as he explained who gets to sentence whom. The juror said he understood, but later in the voir dire, the same guy said that he couldn’t vote to impose the death penalty, causing the prosecutor to literally throw her hands in the air while the judge tried again.

I’d like to think that particular fellow was just trying to make sure he wasn’t picked, but he wasn’t the only one who was using some crap in the Times to inform an opinion about the case at the bar. I overheard (but did not participate in) one conversation where one lady said, “I read in the NEW YORK TIMES [an incorrect fact about the type of allegations we’d just been told about].” Followed by another lady saying “Well, I READ in the New York Times [a different but still incorrect fact about why cases like the one before us are prosecuted].”

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And then of course there was the lady who said, on the record, that she believed mandatory jury service was unconstitutional — so while they could force her to show up, they could not force her to participate in any way. I wasn’t able to ask her where she came up with that one, but it wouldn’t surprise me if she read it in the Times.

I’m sure if I had asked around more I could have heard 100 other television shows or publications that informed some jurors’ preconceived notions about the criminal justice system or specific types of crime. I’m sure that happens with medical shows and articles too, but in the end we don’t ask a panel of people to recommend my course of treatment based on what they saw on House last night.

But…

Voir Dire Kind of Sort of Works.

Both the prosecutor and the defense attorney struck me as competent types (the ADA looking a bit underpaid and earnest, the defense counsel looking a bit slick and perfectly tailored). In the end, all of the real red-flag crazies didn’t make it on to the jury. Even the crazies I thought I only knew were crazy because they were crazy in private to me ended up being sniffed out by one side or the other. It’s not like I made it on to the thing (though, in fairness, I never made it into the box to be questioned). The ones who made it on were the ones who seemed (at least to me) most open to having their preconceived notions challenged. They didn’t come into the process knowing how the system really works, but they did seem like they were most willing to learn. That the attorneys were able to separate the open-minded ones from the close-minded ones with really blunt and obvious questions is probably one reason why they’re professional trial lawyers and I’ve never had to write about them doing something stupid.

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During the last break, one lady who had just been in the box asked me what I really thought about the defendant. I told her that obviously I had an opinion but we shouldn’t talk about it because we owed it to the defendant to only be swayed by the evidence presented. She said, “Yeah, I guess this is real, respect.”

She made it on the jury.

Earlier: How (Not) To Get Out of Jury Duty
New Way To Get Out of Jury Duty: Order Lots and Lots of Food

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