Patterico's Pontifications

2/11/2009

What Should the Rules Be for Peremptory Challenges?

Filed under: General — Patterico @ 11:48 pm



Over at The Jury Talks Back, JRM has a post asking for feedback on what y’all think the rules should be for peremptory challenges of jurors:

Let us suppose that virtually all experienced prosecutors in Irishtown have discovered that, all else being equal, people of French ancestry are far more likely to vote not guilty than people of Irish ancestry. Names are useful to guess what ancestry people have.

By “all else being equal,” I’m saying that if an Irish person and a French person answer the questions the same way, with the same intonations, and have the same job/marital status/everything else, the Irish person is significantly more likely to vote for guilt. Prosecutors suspect this is because the French feel oppressed by the majority Irish population. Please assume, for these purposes, that prosecutors are very likely right about the tendencies of voting, though you need not assume they are right about the reason for those tendencies (maybe the French just like surrendering.)

Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.

Let’s take another one: Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?

And, number three: Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation?

Last one: Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?

He’s careful to emphasize that he’s asking what you think the rules should be — so pay no attention to what the rules actually are.

53 Responses to “What Should the Rules Be for Peremptory Challenges?”

  1. Since trials have absolutely nothing to do with seeking justice, I think each side should be allowed to toss up to 10 potential jurors each and then must be forced to deal with what remains.

    God help us when we are forced to accept a jury of the defendant’s peers who, for instance, are all muslim extremists who see absolutely nothing wrong with killing their daughters in the name of honor and would vote to acquit honor killers. And what about those who accept that the defendant really did kill in the name of allah and acquit on the basis of justifiable homicide since the accused only killed infidels?

    I’ve lost the Latin tag but it ran something like reduction to absurd insanity.

    Curtis (e21caf)

  2. JRM:

    I say “peremptory” means peremptory. Any reason at all, including Nazi prosecutors keeping Jews off the jury and raging feminists keeping all men off the jury.

    If that causes a problem, reduce the number of peremptory challenges allowed.

    Dafydd

    Dafydd the Magnifico (db2ea4)

  3. Curtis – I believe reductio ad absurdum is the phrase you’re looking for.

    Robin Munn (2c5a2e)

  4. Well obviously you strike French jurors, they are rude and will cause all kinds of problems!

    Joe (17aeff)

  5. Ask if the juror believes he/she can render a fair verdict based on the law. There is NO other reason to exclude a juror.

    But first improve the juror pool by requiring actual citizens to serve and compensating them for their time in accordance with their regular income. Educate the public as to their responsibilities. As it is now only those with nothing better to do end up on juries.

    Amphipolis (fdbc48)

  6. amph, what if the jurors lie about their ability to be fair? But that’s challenging for cause at any rate.

    I think peremptories should be absolutely open to any reason.

    Joco (4cdfb7)

  7. The above examples are mostly true. Defense attorneys kick Asians because they are seen as pro-law enforcement. Prosecutors kick teachers, psychologists, news reporters, etc., because they don’t believe in personal responsibility. Sometimes women jurors can be judgmental with rape victims. I have never felt that gays are less likely to convict, however.

    Alta Bob (44f27c)

  8. There should be no preremptory challenges. None. Zero, Zip. Nada. They are an affront to the very reason we have a jury system.

    “Challenges for cause” we need, where it can be shown that a potential juror has an invidoius bias. But they should require more than merely having opinions that one side finds inconvenient.

    Dodd (fbfada)

  9. First of all, I’m not a lawyer so I’m just opining; I have no court-room experience or evidence for any of this but I’m with Dodd.

    Peremptory challenges have been used to remove all blacks from what are supposed to be juries of the defendant’s peers in trials against black defendants. I don’t know the source of peremptory challenges but if this was not its source, it certainly became its use in many trials.

    Both prosecutors and defense counsel should be able to voir dire and challenge potential jurors for express cause but peremptory challenges seem contrary to the spirit of our justice system.

    If one side or the other has a reason to dismiss a juror, let her express that reason. If it’s a good one and seems to be true, then fine, let the potential juror go. If no good reason can be expressed, in my opinion, there is no good reason for dismissing any potential juror.

    Could someone explain the origins of peremptory challenges and could someone who favors them explain why they are a positive good or at least a necessary evil in our judicial system?

    Craig R. Harmon (4f11ae)

  10. Since trials have absolutely nothing to do with seeking justice …

    Justice exists in Heaven and on Earth.
    It imbues all that lives.
    On Earth it is in the mountains and rivers.
    In Heaven it is in the Sun and the Stars.

    It is not Justice. It is not even Law. It is Process. Which is the closest we can get to.

    nk (a12124)

  11. When my wife, a teacher, was called for jury duty, she asked if she could wait for a case in the summer.
    No, said the jury recruiter person. If we did that, we’d have juries made up of all teachers.
    I asked a couple of lawyers and some in the caring professions about that. Yup. Always give the perp a second chance, no matter what. Now, if you have an experienced high school teacher, with the emphasis on experienced, he or she might be interested in working out the years of frustration built up in dealing with classroom buttheads about whom nothing could be done.
    I do recall a case where the plaintiff’s attorney was suing the insurance company which insured the family of a kid, who wasn’t injured in the accident, who was sitting in the back seat, because they had the deepest pockets. He worked hard to empanel a blue-collar Italian man on the premise that the pro-family bias in that ethnic group would allow him to be really, really stupid.
    Since the shylock was bragging, it must have worked.
    So it’s apparently already being done.

    Richard Aubrey (a9ba34)

  12. I agree with Dodd. The main, and nearly only, purpose of viore dire is to make sure the defendant gets anything BUT the jury of his peers that he is guaranteed (or threatened with, as the case may be) under the constitution.

    Jury selection should amount to little more than pulling 12 random people off the street. Exceptions should have to be fairly extreme.

    Something is seriously wrong when the parties spend days or even weeks selecting the jury. What you get in the end is not a jury of anybody’s peers.

    tim maguire (1bc81e)

  13. I was excused from sitting on a jury because (when you boil it down) I might have understood the technical testimony. They didn’t want anyone who might actually recognize BS. It was a drug case and I was a chemist (in an utterly unrelated field) at the time. So they can cook a jury with or without peremptory challenges.

    quasimodo (edc74e)

  14. Richard Aubrey, I swear I’ve read that comment before. It’s still interesting, though.

    Juries are the great unknown in the legal system. I don’t know who it would help more for us to be rid of peremptories, but I think they are a valuable bit of frankness in our system: some people are assholes and will circumvent justice. We all know it, and usually we can’t do anything about it (such as with Reinhardt). With juries, if you can tell that someone is an asshole, but you can’t prove it, you can exclude them from your jury anyway. It’s a good piece of common sense, and I see no reason why we should pretend this isn’t much much much much better than only being able to exclude those jurors willing to admit they are biased.

    The administration of justice is hard, it is human, and it needs more, not less common sense and frankness about the limitations of people. Both the state and the accused can and do take advantage of peremptories, and they do promote justice. The abuse of peremptories, such as via racism, is something we need to work on (we already do attempt to prevent it).

    But I’m glad we have these challenges. Haven’t you ever had to deal with a professor, or a cook, or a bank teller, and you just knew that person had a problem with you or some kind of disorder? Well, when justice is at stake, we can just skip that person when they come up. As we should.

    Joco (4cdfb7)

  15. The one time I did sit on a jury made it clear to me that justice was not anyone’s radar. It was all theater. If justice is ever produced, it’s accidental.

    quasimodo (edc74e)

  16. quasimodo,

    You don’t need chemists on juries to understand a well presented case. The fact is, engineers, lawyers, and doctors will often exercise far too much influence in the jury room. Many of these types will try really hard to demonstrate their bona fides in a group of new friends by showing how one side’s expert or lawyer made an error or simply didn’t do something as well as the expert juror would have.

    Further, the jury will believe what this juror says, even though the juror won’t face a challenge from a rival expert or be questioned adversarially.

    That’s why I would never want an engineer on my jury in a technical case. Years of cases have shown that it’s a risk that is not worth taking when you can simply provide the proper analysis (and the other side can provide theirs if you fear some kind of fraud).

    Joco (4cdfb7)

  17. I vote with Dodd, and tim maguire on this:
    Excuse for cause (publicly exclaimed);
    No peremptory challenges –
    If the Right to a Jury of his Peers means anything, it demands such.

    AD (a9d46b)

  18. The truth is rarely found in a civil courtroom.

    JD (3d2fbd)

  19. quasi, I have always been astonished at how great people are in the jury box. They will work very hard, at low compensation, to do their duty and figure out these cases.

    Justice is exactly what they want, with rare exceptions. I am sorry you’ve had a different experience, but I don’t think that’s typical at all. They had some great documentaries on how juries really work that I watched in law school. Produced by one of those 20/20 style shows. Anyone know what I’m talking about?

    Joco (4cdfb7)

  20. JD, I think that’s because truth is different from different points of view. Reality is all in our head, and that’s why very few people walk out of a civil court room satisfied that justice was done.

    As was said above, it’s process attempting to be justice. That’s all we’ve got, but people work very hard at it anyway.

    AD, ‘jury of our peers’ is but one of many competing ideals. ‘not letting crazy assholes ruin a life’ is another.

    Joco (4cdfb7)

  21. Comment by JD — 2/12/2009 @ 10:09 am

    And is highly problematic in a criminal trial.

    AD (a9d46b)

  22. Comment by Joco — 2/12/2009 @ 10:13 am

    In many cases, if you’re already in Court, you’ve had “crazy assholes” ruin your life as it was.

    AD (a9d46b)

  23. Almost seventy -five years ago, in Norris v. Alabama, 294 U.S. 587 (1935), the Supreme Court held that the intentional exclusion of blacks from jury service solely because of race, is a denial of equal protection to a black defendant in a criminal case.

    In California, this rule has been expanded and re-stated in Code of Civil Procedure § 231.5, as follows:

    A party may not use a peremptory challenge to remove a prospective juror on the basis of an assumption that the prospective juror is biased merely because of his or her race, color, religion, sex, national origin, sexual orientation, or similar grounds.

    Do these rules make any sense? If people are removed from juries because of their “race, color, religion, sex, national origin, sexual orientation, or similar grounds,” does it follow that the resulting trials are unfair?

    This subject was discussed a few years ago by Theodore Dalrymple in National Review Online, in an article which I believe is available here:

    http://www.nationalreview.com/comment/dalrymple200504180744.asp

    Dalrymple argues that trials from which jurors have been excluded on discriminatory grounds are not, for that reason, unfair, whether the stereotypes or assumptions which caused the removal of the prospective jurors were accurate or not:

    “If the stereotypes were not accurate, there is no reason to believe that the verdicts would have been any different if juries had been selected that included the jurors who were removed (assuming, of course, that the juries from which they were excluded nevertheless performed their duty to the best of their abilities).

    If, on the other hand, the stereotypes were accurate, then including the removed jurors in the juries would not render the trials fairer, it would merely render them unfair in precisely the opposite direction. A fair trial involves fairness to the prosecution as well as to the defense. Thus, those who hold that the absence of stereotypically merciful Jews and black women from the juries rendered the capital trials in Alameda County unfair are in fact denying the possibility of a fair jury trial at all, under any circumstances whatsoever. And if there cannot be a fair jury trial, no particular unfairness of a jury trial can be objectionable. Unfairness is in fact the best we can hope for: Indeed, we might as well have trial by ordeal.

    It might be argued that it is better for an unfair trial to be merciful than for it to be punitive: though better for whom? The proposition that it is preferable for a murderer to go free than for him to be executed is at the very least a doubtful one, from which many, probably most, people dissent.”

    troopshipberlin (9d1bb3)

  24. I will go with either extreme being fair. Either all challenges must be for cause or all challenges are acceptable. trying to find a middle ground simply leads to confusion and inconsistent rulings from the judge.

    Ken Hahn (a89f86)

  25. AD, touche.

    A lawsuit is an expression of anger. I just don’t see why a ‘jury of our completely randomized peers’ is itself an ideal that cannot be compromised. The mere impression that justice is being administered somewhat free of vaguely misanthropic folk is pretty nice to have.

    Of course, I’m not on a quest for perfection here.

    Joco (4cdfb7)

  26. Joco, it’s all theater tilted toward the best actor i.e. the best lawyer – who is usually the highest paid. Money talks louder than justice. Juries may try to do it right, but they have the cards stacked against them by the system and its practitioners. Justice is accidental; truth is the enemy of the actor.

    quasimodo (edc74e)

  27. Well you’re a debbie downer!

    hey, like I said, I’m not arguing for perfection. We’ve got more problems than I can list. I spent my day in a family court (for the first time in a long time). I am aware that our system isn’t perfect.

    But people try hard to seek justice within our system, especially jurors. Lawyers aren’t actors… they are organizers of their cases. The slickest lawyer has to deal with a skeptical jury, and ultimately everything the lawyer says in closing is taken with plenty of salt. Juries look at evidence and try to make sense of our cases.

    I have no idea what system you have in your mind as what we should move to. Ours is pretty damn good compared with the alternatives, and if you would care to stop pointing down in judgment, you can get off your moneymaker and do something to help with the administration of justice if you are so keen to help. If you just don’t care, then it’s not the justice system that’s the worst problem, is it?

    Joco (4cdfb7)

  28. Many years ago, there was a Sat morning show on public radio by lawyers for lawyers. That’s where I heard the anecdote about choosing the blue-collar Italian man.
    At another time, one trial attorney suggested taking acting classes.
    To say a successful trial attorney is nothing more than an organizer of facts is absolutely nonsensical. Whether or not he reads Stanislavsky.
    I have a problem with the possibility that one or both sides will miss the fact that one of the jurors is a slam-dunk expert in something technical which happens to become important and knows the expert witnesses are absolutely wrong.
    Is the juror required to keep his knowledge to himself? Ask to be excused?

    Richard Aubrey (a9ba34)

  29. A good lawyer knows the law. A great lawyer knows the judge.

    Pablo (99243e)

  30. There should be no limits on the reasons one can use peremptory challenges. It’s fairly hard to get a juror dismissed for cause, and a lot of people, by virtue of their membership in certain group, will be disproportionately likely to be either sympathetic to your adversary for no good reason or unsympathetic to your cause for no good reason. And you won’t be able to prove it–but sometimes you’ll just know it. We make decisions in our own lives based on such unprovable intuitions all the time, because, despite the limited information we have at our disposal, it’s the best that we can do. That’s simple common sense. We should have more common sense, not less, in our methods of selecting juries. And if that produces ugly results, then much of the time that’ll be only because we get even uglier results when members of certain groups are significantly more likely than others to do the wrong thing when they become jurors.

    Striking a juror for reasons that smack of a lawyer’s bigotry is a far lesser injustice than letting a verdict come out the wrong way because of a juror’s bigotry. And it’s not just a matter of which injustice is the graver; it’s also a matter of what harm is caused. At worst, the ostensibly improper striking of jurors offends many people’s sense of justice, but a verdict that comes out the wrong way jeopardizes the safety of us all.

    Alan (551a6d)

  31. Richard said, “I have a problem with the possibility that one or both sides will miss the fact that one of the jurors is a slam-dunk expert in something technical which happens to become important and knows the expert witnesses are absolutely wrong.”

    Who said he KNOWS the expert witnesses are absolutely wrong? That’s the problem–there’s BELIEF that they’re wrong, and then there’s KNOWLEDGE that they’re wrong–and very limited indeed is anyone’s ability to distinguish between the two. You can have some educated juror spin out a theory that’s anathema to most who belong to the relevant community of experts. He’ll swear that he’s right and that the expert witnesses were wrong… but maybe he’ll be wrong. And no one had any opportunity to cross-examine him to cast doubt on his certitude. That’s completely unfair to the process.

    Alan (551a6d)

  32. hmm
    on the Irish jurors… depends if its a dui :0
    seriously though–peremptory challenges should be allowed without restrictions. Each side has the same # of peremptories. The system isn’t perfect but it is still the best in the world.
    Lawyers are sworn to uphold the constitution and thus ethically bound not to exercise these challenges in a manner that violates that oath.

    royalmom (71c70e)

  33. The proposition that it is preferable for a murderer to go free than for him to be executed is at the very least a doubtful one

    I think that misconstrues the proposition. My understanding is that the proposition is “it is preferable for a murderer to go free than for an innocent man to be imprisoned.”

    aphrael (e0cdc9)

  34. Richard Aubrey: in the scenario you describe, I would ask to speak to the judge, and explain the problem. He would probably dismiss me as a juror; he might also declare a mistrial. Which would probably be the correct outcome; if I’m *right* that the evidence presented is just wrong, then the trial should be redone; if i’m *wrong* that the evidence presented is just wrong, then I shouldn’t be allowed to taint the jury with my error.

    aphrael (e0cdc9)

  35. One of the problems that I see with the Judicial System, is that all of the tweaks and adjustments over time have been attempts to attain a level of perfection, failing to realize that any endeavor involving men will preclude perfection.

    AD (d5182a)

  36. alan.
    Let’s think of something mechanical which has been my vocation for twenty years. For some reason not foreseen before the trial, that mechanical issue becomes important, possibly because the two sides neutralize each other’s primary arguments, leaving this one.
    Not expecting this, neither side asked about it in jury selection.
    So now, I know that the expert witness–which I could be were I so easily bought–is wrong.
    I might “Believe” I’m right because in the last eighty-leven times I’ve done whatever it is, it came out this way. Now, in certain schools of psychology when the departments were still coupled with philosophy, this could be merely a fever dream. In any event, when in the last eleventy-eighty times I did it, it turned out this particular way, it’s merely a hallucination and I don’t know, as in KNOW, this is the truth. Who’s to say? Might convince a jury of the kind you’d obviously like.
    But now I see the expert witness is not only using his credentials to claim what is impossible, he’s taking a shot at water running uphill, too. Having misread his contract, possibly.
    I’m right.

    aphrael. Thanks. It would be a shame to let the trial be tainted by an expert witness who could easily be contradicted by another expert witness who has, unfortunately, been seated on the jury instead.

    Richard Aubrey (a9ba34)

  37. A knowledgeable juror may, in fact, carry too much weight with the jury. He may substitute his own own knowledge for the evidence presented in trial. I would submit that just as often he could correct the erroneous assumptions of ignorant jurors …

    e.g. The ignorant juror says, “That witness said ‘X’ and I know that ‘y’ is always the case.” The expert juror can explain that under certain circumstances ‘y’ can occur.

    But we wouldn’t want anyone with any independent experience or knowledge on a jury – the irgnorant are easier to convince.

    quasimodo (edc74e)

  38. On the topic … both sides should get a small number of peremptory challenges – prearranged by the agreement with the judge ahead of time. Between 2 and 7. No more no less.

    quasimodo (edc74e)

  39. “…But we wouldn’t want anyone with any independent experience or knowledge on a jury –
    the irgnorant are easier to convince.”

    A clarion call for an all-journalist jury!

    AD (d5182a)

  40. I am so happy today! :) Can you guess why?

    Emperor7 (0c8c2c)

  41. You remembered to open the door before trying to walk through it?

    JD (c6800b)

  42. You finally remembered what comes after “breathe in” ?!

    JD (c6800b)

  43. Frank Herbert (i think) wrote a book with an interesting trial system. the penalty was death in all circumstances: for the winner in certain circumstances; in others the looser was killed; the attorneys were subject to the same penalty, even the judge could be killed – perhaps for a hung jury. it has been so long since I read it, I’m probably messing it up.

    quasimodo (edc74e)

  44. You finally went a whole night without wetting the bed?!

    JD (c6800b)

  45. You remembered to open the door before trying to walk through it?

    Not that. Still have bumps and bruises from it.

    You finally remembered what comes after “breathe in” ?!

    I don’t know what it is. Let me guess. Fart?

    You finally went a whole night without wetting the bed?!
    We are not talking about you JD. Nice try.

    Try this JD, I finally acquired a new alligator.

    Emperor7 (1b037c)

  46. Richard, you’re mighty arrogant (“I’m right”) for someone who’s using the most extreme hypothetical imaginable to justify a generalization. The case you’re thinking of, where the expert is testifying to something that is clearly verifiably wrong, where the juror happens to know that it’s wrong based on the most extreme possible way of knowing that it’s wrong (namely, seeing it one eighty-leven times), where the one juror is the only person to know this, and where the attorneys didn’t see that the issue might be significant because they’re too stupid to master the concept of arguing things in the alternative (i.e., too stupid careless to prepare for what happens if their primary argument is neutralized, something that any lawyer knows could happen in a case where both sides present experts).

    Of course, I suppose you’re right that if we follow my approach, some bad things will happen. But reasonable people don’t say, “Let’s not adopt x rule, on the basis of some horrible, extreme hypothetical that could come true if that rule is adopted. Let’s adopt y rule instead, but ignore all the horrible hypotheticals that could come true if that happens.” You look at the costs that EACH side’s rule will have. And your approach could easily bring about results worse or more common than the one you hypothesize. Having an expert on a jury might not be a very good thing. The following link isn’t a demonstration of my point, but it does have a little relevance: http://patterico.com/2007/09/27/foreman-was-the-primary-holdout-in-the-spector-trial/

    What’s really funny about your argument is that it limits itself to a case where a person could say, “I’ve seen this empirically falsified a number of times, unless I’m hallucinating, which I’m almost certainly not.” That’s how extreme the case has to be? No. An expert juror can be just as much attached to a theory that he thinks has no holes in it, because he thinks he has a good answer to every criticism of that theory–and yet be wrong. The level of certitude you describe doesn’t exist ONLY in cases where the expert can say he’s seen something proven countless times. Scientists both good and bad accept, with something approaching religious fervor, lots of things they can’t see empirically proven. So your tolerance of juror experts imposing their knowledge on the jury, without any opportunity to cross-examine that expertise to see what basis it has, could easily result in pseudo-certainty tainting the jury’s decision. And unlike the lawyer for the other side, the jurors don’t have a stake in exposing every conceivable flaw in the expert juror’s reasoning. There’s no reason to think that fellow jurors can effectively cross-examine an expert juror.

    And I’d be more impressed with your professed ability to say that you “know” this or that if it weren’t for statements like, “But now I see the expert witness is not only using his credentials to claim what is impossible, he’s taking a shot at water running uphill, too.” That’s like saying, “But now I see the expert witness is not only doing x, he’s doing x, too.” You’re talking about the same thing–the expert is saying something that you think is impossible.

    Alan (551a6d)

  47. Alan,

    The problem with your argument is that a neophyte on the jury can just as easily claim experience in an area without the expertise. What we need are SMART people on juries that can differentiate between two “opinions” to find the facts. The assumption that two expert witnesses queried by lawyers of both sides will bring out the obvious truth is complete folly.

    I’m a big fan of professional juries, especially in cases of complex subjects.

    JFH (3addfc)

  48. I’d rather have an all-professional jury than a jury with just one “professional” on it. For the reasons I’ve given, which I know don’t impress you (so I won’t rehash), I think a jury with just one “professional” on it would be very dangerous.

    Alan (551a6d)

  49. Allow prosecutors to use the same means/methods of pre-screening a jury as is allowed the defense. In other words, if it is OK for the defense to profile, then it should be OK for the state to do so.

    And if both sides are allowed the same amount of peremptory dismissals – using similar profiling – it seems that the playing field is not as tilted. Of course, the team with access to greater resources (money) is necessarily advantaged.

    bains (7bbc86)

  50. I’m standing by my first comment. The one thing we absolutely do not need is to have people tried by a jury of their “peers”. “Your honor, it was a sanctioned by the Koran honor killing of a teen aged girl by her father, uncles and brothers. We insist that the jury be composed of their muslim peers if we are to see justice in this trial.”

    Fuck that!

    And if we are to blather about the importance of jurors to the process let us drag into the mix the importance of presenting ALL OF THE FACTS in the case. It is pure BS to exclude any evidence in the case. There are those who would argue that evidence obtained illegally is inadmissible. If we are really after JUSTICE, who gives a rat’s ass about how the evidence was obtained?

    Lawyers have polluted the Bill of Rights to the point that most people accept that treason using the First Amendment is a right and the right to own and bear weapons is a crime. I’m in favor of introducing all evidence at trial to the jury provided it wasn’t extracted by torture, cause that’s just wrong.

    If you conspire over the phone, why is that different from conspiring in a park and being overheard by a vigilant citizen? The airwaves are “public” or so goes the cant by the leftists who believe that since the AM band is public they have the right to control speech there with a fairness doctrine which implies constant government monitoring and censorship/control of all broadcast speech. How is that different from listening to broadcasts from cell phones or intercepting broadcasts from landline shots over satellite channels?

    You need to exclude the nuts. Excluding professionals and lawyers from the jury is simply accepting the fact that lawyers understand and accept their limitations with regard to pulling the wool over the eyes of all the sheep. Seriously, if you cannot convince a professional of the merits of the arguments you present in a case, you are actively avoiding justice at all costs and should find the next four years pleasant and remunerative.

    Curtis (e21caf)

  51. Sorry, Alan. There are some things I really do know. One of them is that only attorneys are allowed to say that.
    But, anyway, there are some things I really do know. I know I know them because when I do them, things work. If I don’t do them the way I know I should, things don’t work.
    So when the hired gun tells the court something whicfh is backwards, he’s wrong.
    So I say, during questioning, yeah, I hunt deer. The fathead attorney doesn’t think to ask if I hunt during blackpowder season. And, strangely enough, the case has an important component dealing with black-powder muzzle loaders. And the hired gun says something wildly nuts. Can happen.
    I am aware, Alan, that it is in your interest to keep the potential juror pool convinced they can know nothing except what they’re told by their (hired) betters. Wrong.

    Richard Aubrey (6d05b1)

  52. Again, the structure of your argument is:

    “I give an extreme example that’s premised on multiple questionable assumptions. One of those questionable assumptions is that something will become a huge issue without any lawyer on the case anticipating it, notwithstanding the fact that, in real life, surprises coming out at trial are about as easy to find as a clock in a shopping mall, due to the discovery process and the fact that each side knows in advance what its own arguments will be and what the other side’s arguments will be. I also assume that the mistake is the kind that’s obvious to anyone familiar with the subject, which in turn assumes that the lawyers on one side were total idiots in selecting their experts (since the expert isn’t even familiar with the subject in which the court qualified him as an expert, when an ordinary person’s familiarity with the subject would dynamite the expert’s testimony). I also assume that the lawyers on the other side were total idiots in failing to discredit an expert (and in failing to prevent his being qualified by the court as an expert) who had no familiarity with an important point of discussion, as an ordinary person familiar with the subject could discover. I don’t actually engage the points that you, Alan, made. I simply dodge them. I give no consideration to the downsides of adopting my way of doing things–for example, the idea that it’s okay to have very knowledgeable jurors, notwithstanding that an awful lot of people think they’re far more knowledgeable than they are. Because I have no answer to the point about educated people with heterodox opinions tainting jury verdicts, I simply ignore the point and confidently assert that you’re wrong. I pat myself on the back for being so clever without even bothering to make it look like I’m responding to the arguments to which I obviously have no answer.”

    Since your method of counterargument consists entirely of dodging my points, thus leaving me with no reason to continue making them (or to believe any of the compliments you’ve directed at yourself), I’ll just ignore you from here on out.

    Alan (551a6d)

  53. […] Commentator Joco – who I don’t know, but I’d bet my house he or she is directly involved in criminal law – captured my feelings on this almost exactly: […]

    The Jury Talks Back » Why Peremptory Challenges are Good (e4ab32)


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