By Roberta Millstein
What makes a juror too biased to serve on a case?
Recently, I was called for jury duty selection for case that involved repeated sexual assault on a person who was a minor at the time. I was not selected; the prosecuting attorney used one of his peremptory challenges to dismiss me. I’m OK with that – the trial would have been weeks long – although I do, in an idle curiosity sort of way, wonder about the reasons. My friends insist it is because I have a PhD (apparently many of my fellow PhDs have been dismissed from juries), but I’d also note that the prosecuting attorney seemed very concerned about having people on the jury who were not in favor of the district attorney, who was on the ballot for re-election.
But it wasn’t the prosecuting attorney’s dismissal of me that I found troubling. Instead, it was process, largely led by the defense attorney and, if I understand correctly, allowed by the judge, for dismissing people “for cause.”
I know at least some of what I say here will be controversial and perhaps heretical. It won’t be as well-organized as I’d like because I am still thinking through some things. But perhaps the reader will think through things with me.
The defense attorney’s questioning of potential jury members was very haphazard. He asked what was ostensively the same question in different ways, to the point where they seemed like different questions, although I don’t think that was his intent. Some people were queried more intensively than others. And it seemed to me that women were queried more intensively than men.
That was bad enough, but as the process went on, it became apparent that anyone who had experienced sexual assault or who had someone close to them who had been sexually assaulted was being dismissed for cause on the grounds of “bias.” Since something like 1 in 4 women have been sexually assaulted, this was quite disturbing. A lot of people were being dismissed. (Of course, some people are going to find it too painful to serve, and those people were rightly dismissed – but the dismissals were going beyond that).
The defense attorney also seemed very concerned with finding jurors who were rule followers – not just that they could follow rules, but that they did follow rules. People who said things like “rules are there for a reason – I just follow them and don’t question them” were A-OK with the defense attorney. People who might think to question rules or act on their own ethical beliefs were dismissed for cause.
So, following that process to the end, we are left with a rule-following jury of people who had neither experienced sexual assault or had anyone close to them who had been sexually assaulted. Also excluded were people who tended to believe women who say that they have been sexually assaulted. Is that a fair representation of the population? Is a jury like that going to come to a fairer conclusion? With all due respect to the people who were selected (and I didn’t stick it out to the end to see who was selected), I think you’re going to end up with a rather odd jury.
People who have been sexually assaulted or who are close to someone who has been sexually assaulted have direct relevant experience in such trial concerning sexual assault and should not be dismissed for “bias.” People who think for themselves and who know that rules are only as good as the people who make them should not be dismissed for “bias.”
I think we need to rethink what constitutes “bias” in jury selection, at least for cases of sexual assault but maybe more generally. I think a jury that is going to be that unrepresentative of the population is not, in fact, unbiased. I think we should move to having larger juries with far fewer dismissals for cause – in other words, seek to have more juries that have a more accurate representation of the population.
Here are my more controversial thoughts:
I know that we have, for good reasons, a system where a person is believed innocent until proven guilty. But if, as statistics show, only something like 5% of women lie about being sexually assaulted, should the default assumption be that the accused is innocent? I think there is something problematic in that assumption: it is statistically inaccurate.
Of course, the jury should hear the evidence and weigh the evidence, and be open to the idea that the accused is innocent. But should the apparent victim’s testimony be given more weight in cases of sexual assault? Consider that when women do come forward, they typically find their personal lives under a microscope and suffer personal attacks that can severely damage their careers and futures. How many women are going to do something like that lightly?
I left the courtroom relieved not to have been selected but with serious concerns about the way that sexual assault cases are being adjudicated.
Davisite 
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