The strange and troubling search for 12 adequate jurors
Not everyone gets to be a Canadian juror but it’s as fair a system as much as any can be
The judge tilted her head to better study us over her reading glasses. We were the jury panel, 120 warm bodies crammed into a small courtroom, and the jury for a drug trafficking trial was about to be pulled from our lot. The vacant jury box beckoned with a moral gravity, and the judge, perhaps sensing our disquiet, said everyone is capable of serving and we needn’t feel intimidated. “We all have opinions and biases; what we ask is that you keep an open mind.”
I was relieved to hear the judge acknowledge bias because I was already forming ideas about the accused, who was, like me, a 40something white male. He had cleaned up for the occasion: his leather suit jacket looked fresh off the rack, his buzz-cut a day old. After deconstructing his appearance, my first thought was, “So that guy’s a drug dealer. Huh.”
I wasn’t the only one making casual assertions about the people around him. Any time there was a pause in the proceedings, the gallery came alive with sidelong glances, as though each of us was scouting for the faces that would comprise the jury. Were the chosen ones somehow marked, and did they have anything in common? The accused himself was part of this scrutiny-fest: he regularly turned in his chair to check us out, each time surveying a different section of the room.
The slow camera pan of the jury is the most durable of trial film clichés. We survey the sober-faced collective, subconsciously watching for someone who resembles us: I could be one of the anybodies. The possibility that any of us might play a key, if anonymous, role, enhances our trust in the system. As it turns out, jury selection is a lawyer’s game of contrivance and magical thinking. The 12 chairs don’t fill with anybodies, but rather with the remainders of a haphazard process.
While every Canadian might be capable of serving, as the judge suggested, jury duty is not an equal opportunity job. Those in certain professions (doctors, firefighters, police officers) are not qualified to serve, and the jury pool is derived from voters’ lists and motor vehicle registration lists, neither of which is an inclusive roll (low-income earners and Aboriginal populations are especially under-represented). If juries are unlikely to ever be truly representative of the community, the system has at least made a staggered journey to inclusiveness: married women weren’t allowed to serve until 1964, a right extended to all women in 1971.
In a show of randomness, the registrar stood, held out his hands and shuffled a deck of cards bearing the numbers assigned to us. Ten people were called to line up in front of the jury box. Those who had cause to be dismissed stepped one a time to a microphone. One woman said she had agoraphobia. “I can feel my throat constricting as I say this,” she mumbled. Another woman said she was supporting two kids on part-time jobs. “I’m getting nothing from their father,” she added. One man said he had become primary caregiver for his kids because his homebound wife was entering a new cycle of chemotherapy. (The public recitation of hardship seemed cruel as the morning wore on.) After the judge dismissed seven or eight people from each group of 10, the leftovers had to survive peremptory challenges, by which the defence and crown can throw out prospective jurors without saying why. The individual and the accused are instructed to look at one another (in a moment that seems confrontational for no good reason), after which the accused, via his lawyer, can challenge. The defence showed a clear prejudice, tossing out three white, 60-something females within the first two “random” rounds of ten.
Osgoode Hall law professor Alan Young says jury selection “borders on the bizarre” and is mere ritual that allows each side to feel the process is legitimate. For the defendant in particular, peremptory challenges provide an illusion of control over those who might decide his fate.
The crown got in on the action, too, dismissing a short, grizzled man who looked pleased to be on the verge of occupying one of the hallowed empty chairs. The top two buttons of his shirt were undone, a gold necklace snaking through his chest hair. For some reason the crown thought he would look favourably upon the accused. Was he too unbuttoned? Too hirsute?
The crown’s rationale for dismissing the man was quite possibly that vacuous.
Scientific Jury Selection is the suspect designation for using psychological insights to try and model a preferred jury (one that will help secure either a conviction or an acquittal). There is negligible science to support the “scientific” part of SJS: what amounts to attorney intuition has never been documented in any empirical way. Most of the literature on attorney attitudes is anecdotal and insular (attorneys outlining their tactics for the interest of other attorneys). Consider this sampling of how some attorneys perceive certain demographics when trying to sculpt a jury: Young means overly sympathetic when the defendant is also young. Old means too set in one’s thinking. More educated jurors are more intelligent and thus will be more considered in their deliberations.
If ideas such as these have the ring of truth, they also carry an odour of stereotype. Not surprisingly, the few empirical studies of attorney strategy that do exist reveal variation from one attorney to the next. Gut feelings tend to be individual.
“Lawyers will tell you they have secrets, but it’s based on nothing,” says Young. “Peremptory challenges have nothing to do with fairness and they don’t achieve impartiality.”
In its description (or defence) of the peremptory challenge, Ontario’s Ministry of the Attorney General seems to dress up prejudice in a fancy robe of words: “peremptory challenges ... allow both parties to eliminate unprovable but perceived concerns about perspective jurors.”
Bias, then, has free reign in the arena that purports to mitigate it. Yet it’s not the flimsy inclinations of the lawyers that concern us. We worry about the jury being racist or dumb or knee-jerk. Is an unbiased jury possible? Strictly speaking, it’s not, because the jury is comprised of people like you and me. Yet some research exists that might puff our Canadian chest. Verdicts reached by diverse juries are more likely to be seen as fair and impartial — diversity itself is legitimizing, and any prejudice within the group will soften or be negated as part of the whole.
Even as the jury selection process struck me as a dubious theatre, with lawyers resembling eight-year-olds choosing teams on the sandlot, both sides got the ideal jury — a mix of ages, genders, and ethnicities. A Canadian jury may not be comprised of the first 12, or a truly random 12, but they’re probably an adequate 12.
I was slow leaving the seventh floor courtroom and ended up waiting for the elevator next to the accused. As the two of us stared at the lit-up down button, I regretted my assessment of him. We don’t rush to judgment, we begin there. He pulled out his smartphone and started scrolling, and I realized that should I ever find myself charged with a felony offence, there was a decent chance one of the jurors would look like him. It was a worrisome thought, and a reassuring one, too.
Certain professions are not qualified ... and the jury pool is derived from voters’ lists and motor vehicle registration