Trial by Stealth

This month’s ABA Journal Report has an amusing article regarding the growing problem of so-called “stealth jurors” — jurors who “lie on questionnaires and during voir dire to land seats on high-profile cases for bragging rights.” A jury consultant quoted in the article estimates that roughly 15 to 18 percent of today’s jurors view jury service not as a civic responsibility, but as “a way to comment on or influence the outcomes of trials.”

I thought these concerns might be a bit overblown, until post-exam-writing insomnia had me up at 3 a.m. last night doing an Amazon search on the subject. Turns out that someone has written a book entitled, appropriately enough, “Stealth Juror: The Ultimate Defense Against Bad Laws and Government Tyranny.” According to the author, “A stealth juror is an ordinary citizen serving on a jury who understands and is not afraid to exercise his right to judge not only the evidence in a case but the very law upon which the prosecution is based. If the law is bad or unfair, he secretly works to acquit any defendant being persecuted for a nonviolent, victimless crime. He must remain undercover because he represents a direct threat to the power of judges and prosecutors. He is the last champion of justice in the American courtroom.” The book promises to teach its readers “exactly how to become a stealth juror, including how to get yourself seated on a jury where you can do the most good for just causes (from preserving gun rights to opposing the War on Drugs), recognize and avoid the games that lawyers and judges use to manipulate the outcome of a case, secretly win over your fellow jurors in the deliberation room and much more.”

Hmm … I’m not sure this is exactly what Henry Fonda had in mind.

The ABA article points out that the “stealth juror” problem is exacerbated by the way in which voir dire is typically conducted: Potential jurors who might be biased against a particular defendant, for example, may be reluctant to speak up about their prejudices in an open courtroom, with tens or even hundreds of spectators watching.

Of course, sometimes the biases revealed during voir dire cut the other way. My father, a federal judge for twenty years in Arkansas, once conducted a criminal trial of a county judge who had been accused of buying up votes to win his election. At the beginning of voir dire, the judge informed the potential jurors of the charges against the defendant. A woman in the back row immediately stood up, hands on hips and full of indignation, and said, “Well, I guess you don’t want me, then. My husband and I always sell our votes. We get three dollars a piece for ‘em – five if it’s a close race.” The judge, without missing a beat, replied, “No ma’am, I don’t think we’ll be needing you today. Thank you for your service to the community.”

But those were 1980s dollars – I’m sure the price of a vote in Arkansas has gone up considerably since then.

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