Voir dire

Voir dire, from Norman French, is pronounced “jury selection” by normal people, but I had always stayed one step ahead of the law and never seen it first hand. Now I’ve been living in one place long enough to be at the same address when the jury duty summons showed up. My excuses for missing jury duty are probably worse than most people’s, so I arrived at the courthouse promptly on the specified date to do my part as a citizen of a free and democratic country.

Voir dire is interesting. I suspect we were seated in order of how likely we were to be put on the jury, because most questions were directed just to the first half or third of the prospective jurors. I was seated front and center.

Things got off to a good start, even though I had a cold and hadn’t slept well and felt a little bit spacey. The defense attorney started off with a nice introduction in which he asked us to set aside preconceived notions. He said something about someone having his birthday in December, but also celebrating his birthday in the summer every year, and asked us to ponder how this could be. I had a flash of inspiration and raised my hand and he called on me and I said “Australia,” because Australia is really far away in the southern hemisphere, and the defense attorney got this look on his face and said yes, the defendant was from Australia. I think that made an impression on him.

Later the defense attorney asked if we understood the concept of presumption of innocence, and that just because someone was charged with a crime doesn’t mean he was guilty. Of course I understood that. Then the defense attorney asked if we thought someone charged with a crime was more likely to be guilty than a random person on the street, and I thought about it, and I thought about it some more, and the defense attorney asked me what I was thinking, and I said that the population of guilty people is drawn from the relatively small population of people who are charged with a crime, while the population of people on the street is much larger, so just as a matter of statistical probability, someone charged with a crime is more likely to be guilty than some random person on the street. I’m not sure that was the right answer. The defense attorney seemed to be making a lot of notes on his legal pad.

The prosecutor took notes, too, but on a seating chart corresponding to where the prospective jurors were sitting. There seemed to be a lot of notes for my seat. Who of us had been a designated driver before? Not me, since socializing with potentially drunk people hasn’t really ever been my thing. Which is too bad, because only people who had been designated drivers were asked about their feelings about alcohol and impairment and what they liked to drink, so I never got a chance to say that I had never touched a drop for…meaningful pause…RELIGIOUS REASONS. Maybe a quarter of the designated drivers also didn’t drink, it turns out, but none of them were prepared to hoist the Title of Liberty as they mentioned it.

The prosecutor also wanted to know if we agreed that the city had the right to make and enforce laws for the safety of its citizens. Of course it did. And could we follow those laws in our decisions as members of the jury, even if we didn’t fully agree with the law? Such as the law in question, which seemed to involve criminalizing not driving your car while drunk. Just being inside or near your car while drunk seemed to be enough to land you in legal trouble. This was a new one for me, and I wasn’t sure how I felt about it. I mean, I’m more than ready to throw the book at drunk drivers. We just recently had to replace a car thanks to an inattentive driver (on icy roads at 8 AM in a school zone, by the way, and no, we were not prepared to accept 70% of the blame for the front of their car running into the side of our car), and inattentive drivers are bad enough, let alone drunk drivers.

But I’m not sure how I feel about drunk non-drivers. Someone froze to death here last winter just by trying to walk home. If you’re in no condition to drive, maybe sleeping in your car isn’t the worst option. Could I uphold and honor the law by convicting a drunk non-driver because the law said so? I think I said, “Yeah, I guess so,” but I wasn’t the only prospective juror making noncommittal noises, and the more I think about it, the more I think, um, yeah, no. No, I don’t think I want to be a part of convicting someone of sleeping it off in his car. If they ask me the same question next time about the same kind of case, that’s exactly what I’ll say. After all, both the defense attorney and the prosecutor said that they just wanted us to tell them what our honest opinions were, and that’s mine.

After that, the selected jurors stayed and the rest of us left. I was the lowest-numbered person not selected.

Going through the process of jury selection did help me gain one important insight: I would have been an absolute disaster as a member of the jury. Participating in the workings of the law takes a certain mindset that I do not have. Not every potential juror is right for every case, the judge and clerk and both attorneys had said. By the time I left, I understood what they meant.

9 comments for “Voir dire

  1. SDS
    September 19, 2019 at 9:25 pm

    Thanks for this interesting account. I’m a little puzzled, though. Why do you say you would be a disaster as a juror? It seems to me that you would be an ideal juror– open-minded, thoughtful, honest in your responses. What do you see as your disqualifying feature?

  2. JB
    September 19, 2019 at 10:59 pm

    I’m not sure your unwillingness to apply the law in all cases is necessarily disqualifying. On one hand, you really don’t want jurors deciding, on a case by case basis, what the law should be. That results in arbitrariness and introduces a stronger element of bias inyo the system.

    On the other hand, one of the reasons today trial by a jury of peers is valuable to a free society is that jurors can potentially protect against unjust or oppressive laws by simply refusing to enforce them. You don’t want that happening often. So it makes sense that the judges and prosectors emphasize that is your absolute duty to apply the law whether you agree with it or not. But they also know that, if the case is extreme enough, jurors will likely refuse to do that. And I’d argue that’s not a bug but a feature of the system.

  3. September 20, 2019 at 6:25 am

    I also have lived in this place long enough to receive jury summons on more than one occasion, and I also have dutifully responded, and I also have gone through the hours of questioning and never been selected to sit on a jury. It’s a thing.

  4. Ralpo
    September 20, 2019 at 9:36 am

    Expanding on JB’s thought: You would have been the perfect juror. The prosecutor was asking this question to eliminate those who believe in jury nullification – the right of a jury to nullify an unjust law. The only reason we have juries is for society to rule on the fairness of the law in addition to the guilt of the accused. Prosecutors hate jury nullification but it is the bulwark against government tyranny and unjust laws.

  5. September 20, 2019 at 9:56 am

    In my experience, jurors are assigned their places randomly. The people who happen to be near the front are more likely to be chosen for the jury because the jury panel is filled in order from front to back. Juror #1 is on the panel unless stricken (either for cause or as a peremptory (discretionary) strike), then juror #2 and so on. Questions are directed more to the people in the front because in most cases the panel is filled before it gets to the back few rows. I had one misdemeanor case that got all the way to juror #23 out of 25 to fill 6 spots, but most panels I saw only made it up to juror #10 or so.

    You probably would have been a peremptory strike. This isn’t my usual area of practice, so I can’t say exactly why, but I’ve observed that highly educated white men generally don’t stand a chance.

  6. John Mansfield
    September 20, 2019 at 10:05 am

    My parents served on juries every third year it seemed. In contrast, I have been mailed a summons twice in my life, and both times had that cancelled before showing up at the courthouse. I came to recognize this as one of the differences between Las Vegas and the rest of the country.

  7. September 20, 2019 at 12:02 pm

    Tom, that explanation makes a lot of sense. I’m sure that must be the procedure here. I definitely had a number that would have put me on the jury.

    So let’s hear it for peremptory strikes. I really would have been a disastrous juror. The whole system is built around people following the law, not rendering Solomonic judgments or ensuring that the home team wins. The defense attorney was going to argue the facts and how the law applied to them, not attack the law as unjust. If I thought the law was stupid and refused to follow it, I would have spent the time in jury deliberation arguing about something that neither side wanted us to think about. And it wasn’t just the potential for a nullification train wreck. I could have found other ways to make a mess of everything.

  8. September 21, 2019 at 10:19 am

    I was in voir dire for a drunk driving case. When we were asked our professions, I admitted that I was a chemist. the defense lawyer had me excused. I later read in the paper that the defense was that the breathalyzer was incorrect. I could see why they didn’t want me on the jury.

  9. Murray Ceff
    September 21, 2019 at 11:41 pm

    Totally different system here in Australia. Potential jurors are not questioned, they are just walked past the defence and chosen or not based on appearance (or maybe just gut feel). That’s my memory of it anyway.

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