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Jurors on trial

The corruption trial of former Illinois Governor George Ryan generated headlines from the beginning.

Starting with the federal indictment for receiving cash, gifts and vacations in return for steering contracts to his friends and supports, the public was riveted by news of their governor’s unsavory dealings throughout the six month trial.

But then suddenly, eight days into jury deliberations, the trial came to an abrupt stop when a local paper discovered that two jurors had failed to disclose arrest and conviction information. Immediately, the defense moved for a mistrial.

U.S. District Court Judge Rebecca Pallmeyer denied the motion, and deliberations continued for another month until the former governor was convicted on 19 of 22 counts of assorted mail fraud, making false statements, attempted conspiracy and racketeering.

The ensuing appeals will keep the court system busy for years, but lawyers and courts across the country are already reacting to the Ryan case with a controversial new idea – juror background checks.

Richard Gabriel, a trial consultant and president of Decision Analysis in Los Angeles, said juror background checks are definitely on the rise.

“More and more, not just prosecutors and defense attorneys but even in civil lawsuits, it’s pretty easy and fairly inexpensive to do at least a basic background check,” he said.

A quick check of public records can reveal party affiliation, driver’s license information, criminal history and lien and debt information.

“It’s definitely a trend,” agreed Stephen Glassroth, a solo criminal defense attorney in Birmingham, Ala. “[Background checks] really ought to be embraced because information is the key to be able to get a sense of how you are going to exercise the scant number of peremptory challenges you have available.”

But others expressed concerns about juror privacy and the lack of regulation if parties do conduct background checks.

Michael Pasano, a criminal defense attorney at Zuckerman Spaeder in Miami, described himself as “cautiously apprehensive” about the use of background checks, especially given the current ad hoc approach.

If juror background checks are used, there ought to be some system for regulating what types of information can be sought and when attorneys must disclose the existence of that information, he said.

Nancy Marder, a jury expert and professor at Chicago-Kent College of Law, expressed concern about the reaction of those reporting for jury duty.

“Background checks could make jurors feel like they are under investigation, and we have enough trouble getting people to serve jury duty,” she said. “It’s like starting off on the wrong foot.”

Access and privacy

A typical background check includes running the juror’s name through the criminal database to check for any arrests or convictions, as well as any involvement in a case, such as being a witness or even the victim of a crime.

The next level of checking includes information available in public records: involvement in civil cases, property ownership, debts and liens.

Certain information may disqualify jurors from service – such as a felony conviction in federal court – and other information may simply help lawyers determine whether or not the person would make a good juror.

“As someone who tries cases, obviously I would like to have as much information available about potential jurors as I can possibly gather, so that I can make more intelligent use of the limited preemptory challenges I have,” Glassroth said. “Plus, with more information, I can develop avenues of additional questioning of potential jurors for cause.”

In the vast majority of cases, there isn’t enough time to perform in-depth background checks, since the lawyers don’t know the jurors before they arrive the day of jury selection.

But “if the case is big enough and we have enough time, it’s always nice to have a fuller picture of the jurors,” said Gabriel.

The problem is that obtaining a thorough picture of a potential juror creates risks.

“When it comes to investigating a juror, you have to be extraordinarily careful not to have any contact, which can raise the tampering issue,” Gabriel explained.

Another thorny issue can be access to, and the sharing of, information that is obtained during the background check.

“The prosecution has access to certain databases that I don’t,” Glassroth noted.

For example, in a well-oiled U.S. Attorney’s office, prosecutors will share their notes about jurors who are working their way through a typical two-week trial cycle.

“That’s all information the defense doesn’t have,” Pasano said, such as answers to jury questionnaires from prior jury pools or voir dire.

Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts in Arlington, Va., said that prosecutors in Virginia have access to extensive information in the state’s criminal database, including witnesses and victims of crimes, as well as arrests and actual criminal records.

If background checks are to become standard, all parties should be able to have access to the same information, and the process should be regulated, Pasano said.

“There is the possibility that one side might have certain information and hold onto it,” he said. “Then they can suddenly front the information if they don’t like how the trial is going.”

Juror privacy is also a concern.

“We need to ask what are the legitimate expectations of jurors, and how do we meet them,” Hannaford-Agor said. “At what point do you recognize that this is an invasion of privacy?”

The privacy line is blurred in an advanced technological age, Pasano noted.

“Is Googling a juror a privacy violation?” he asked. “Is it OK to dig more than that?”

Another solution?

Gabriel said the dangers of background checks can be averted by making it easier for jurors to share potentially embarrassing or painful information.

“The somewhat intimidating nature of courtroom proceedings makes it very difficult for a juror to jump up and say, ‘Hey, I’ve been convicted of a felony!'” he said.

And sometimes, people get confused or even forget past transgressions, he said.

A person might think his or her juvenile record was either expunged or sealed, or may not realize that a crime was classified as a felony, Hannaford-Agor explained.

“For a lay person, the nuances between a felony and a misdemeanor, especially if they entered a diversionary program or did community service, or it happened decades ago, the questions might be rather confusing,” she said. “I have a very real understanding of why people might answer, ‘No,’ when the technically correct answer is, ‘Yes.'”

Rape cases can be especially problematic, as a juror who may have been a victim could understandingly be reluctant to share the experience, which could also be important information for both sides.

To encourage jurors to disclose personal information in lieu of performing background checks, experts suggested the following:

 

  • To diminish embarrassment, use “masking questions.”

 

Gabriel said judges could ask a series of questions – such as, “Has anyone had experience with the following issues: been arrested, been convicted, or has anyone close to you been arrested or convicted?” – and then pulling those people aside individually for a sidebar.

“That way, the person can have a private conversation and not be identified in open court as the guy with a felony,” Gabriel explained.

 

  • Judicial reinforcement at every step of trial.

 

“You certainly don’t want a repeat of the Gov. Ryan trial, with jurors dismissed at the end of trial,” said Marder. “So maybe the judge could remind jurors along the way about the importance of being truthful.”

That could occur as they are impaneled and between the plaintiff’s and defense presentations, as well as before deliberations begin.

 

  • Craft your questions carefully and be overbroad.

 

Gabriel recently had a client who was the plaintiff in a large transportation case. The attorney asked jurors if any of them, or anyone close to them, had ever worked as a professional driver. All of them responded in the negative. He later found out that one of the jurors wasn’t a driver, but worked as a scheduler for a large transportation company for 12 years, and argued for a lower verdict.

“Attorneys have to craft really good questions to make sure that you get all possibilities,” Gabriel said.

Questions or comments can be directed to the writer at: correy.stephenson@lawyersusaonline.com