Friday, June 5, 2009

Jury Selection

A few years ago I was hauled into jury duty in Boston, and somewhat disturbed to find that it's impossible for me to ever get selected onto a jury. As soon as you respond differently from all other jurors in the room on any question, you're out (in my case, I was the only one to say "no" to the question "do you agree that you have to follow legal directions from the judge?"). Then a few weeks back my girlfriend was hauled into the Brooklyn court building, and was likewise disturbed to discover the exact same thing (in her case, she was the only one in the room to stick to an answer of "no" in response to, "do you know when someone is lying to you?").

I was confused and mystified by this for a while. We put our heads together with my friend Collin, and I think we finally stumbled into an explanation.

The point is this: Everyone wants to avoid a hung jury (that is, a mistrial, forcing the court & lawyers to try the case all over again another time). The way a jury really works behind the scenes in a criminal trial is that you start with some yes-votes and some no-votes, and over the course of a day or so one side simply batters down the resistance of the other (often through insults and intimidation, as witnessed by another friend), until there is finally a unanimous vote. And who could possibly interrupt this process? You guessed it, the rare personality type who is willing to reject the mob mentality and stand out, disagreeing with everyone else in a crowded, public courtroom.

It seemed odd to me that when we disagreed with the rest of the pool like this, both the prosecution & defense got all jumpy with us about it. You would think (from an expected-value analysis) that if you asked a defense attorney the question, "Which would you rather have as a result of a trial: a conviction or a mistrial?", the answer would be "a mistrial" (since there's at least some probability that your client is found innocent in the next trial). But now I'm guessing that this fails to take into account the opportunity-cost to the attorney in their time; possibly they would actually, ultimately prefer the conviction, and be able to move to other more promising cases, rather than re-try a case which apparently is not a good cause in the first place. (This is similar to the well-known disconnect in incentives between a house seller and the broker working on a commission.) They're not making this loudly known, but I now suspect that avoiding a hung jury may be priority #1 for all the lawyers and judges in selecting a jury, even beyond winning the actual case. Therefore, the able-to-disagree-alone-with-a-room-full-of-people personalities have got to go.

For those of you who want to get out of jury duty, I therefore give a simple, completely foolproof and hassle-free procedure. There's absolutely nothing difficult about it and requires no creativity. Simply pick something, anything in the questions and disagree with everyone else, and you will be immediately released. If you're honest, in fact, it's practically impossible not to do this.