The New York Times recently ran an interesting story about what seems to be a trend of lawyers selecting jurors who know nothing at all about the facts of a case or the issues in dispute. One could argue that this leads to juries being comprised of uninformed and ignorant jurors. On the other hand, it makes sense to have jurors who will be guided solely by the evidence they hear in court.


The U.S. Constitution guarantees the right to trial by an impartial jury. This right is derived from the English law and it is generally thought that the first jury trial occurred in a criminal trial which took place in 1166. This right was confirmed in the English Magna Carta of 1244 and is enshrined as a fundamental right in the Declaration of Independence, the United States Constitution, the Texas Declaration of Independence, and the Texas Constitution.


Who is impartial? That question is exceedingly difficult to answer.  

The Texas law speaks of jurors who are free of bias and prejudice. Bias means an inclination to see things a certain way.  In other words, a predisposition or a leaning in a particular direction.  Prejudice means prejudgment of facts or issues. For example, there are people who firmly believe that police officers tell the truth when they testify. On the other hand, there are those who are highly skeptical of the credibility of police officers as witnesses. We could come up with countless examples of juror biases and prejudices that could potentially affect the outcome of a case depending upon the facts and the issues in dispute.


In selecting a jury, lawyers are generally entitled to ask potential jurors questions which are designed to reveal biases and prejudices that could be important to the case.  This is done under the close supervision of the trial judge and is not intended to be embarrassing to the jurors. Obviously, the skill of the lawyer in asking questions is important and it is of the utmost importance that jurors answer in a completely candid manner. If a juror indicates bias or prejudice, it is up to the trial judge to determine whether the juror should be disqualified.


If a juror answers in a way that indicates the juror does have a bias or prejudice about an issue in dispute, it is common for the trial judge to ask the juror if he or she will be able to set aside that opinion and follow the law as instructed by the judge. Put on the spot this way, most jurors say they will set aside their personal opinions and follow the law. This response is to be expected. After all, it takes more courage than most people have to tell a trial judge you will not follow their instructions. If the juror says they will set aside their opinions and follow the law as instructed, most judges hold the juror to be qualified to serve. The problem is that scientists who study human behavior will tell you this cannot be done, i.e., people cannot set aside their opinions and beliefs even if they want to. The fact of the matter is that all human beings have fixed opinions about many things based upon their life experiences and they will consciously or subconsciously make decisions which are in accordance with their preconceived beliefs.  You can see this principle at work every day in a political context as each side hears what it wants to hear and tunes out or discredits the rest. This is the basis for the very old saying: “A man convinced against his will is a man unconvinced still.”


So, back to the New York Times story. The trend observed by that writer is true.  Lawyers, now knowing much more about human behavior and how we make decisions, are reacting by taking the safest course of action. They prefer people who know nothing of the facts, the participants or the issues.