Voir dire

Voir dire June 13, 2012

Forty of us are asked by the judge if we have ever served on a criminal jury before. I am not among the few who had done so, most of whom had previously served here in Chester County. Two had previously served in Philadelphia. And two had previously served in Harris County, Texas. An odd coincidence.

The judge works his way through the questionnaire we had filled out. Those of us who had answered “Yes” to any of the questions are asked to stand and to explain the context of these answers, and then to say if we believe that context would affect our ability to serve fairly and impartially.

Most of us are seated on high-backed benches in the back of the courtroom — pews, essentially — and I am reminded of church. We are testifying. We are sharing our personal testimonies and publicly confessing our sins, beliefs and affirmations. The ritual language concluding each such testimony reinforces this sense of church. “Do you believe that this will affect your ability to serve fairly and impartially?” the judge asks each in turn, and after they answer I am half-tempted to say, “And also with you.”

But some of this reminds me less of upstairs church and more of downstairs church. Some of this anonymous sharing and confessing doesn’t seem to belong in this dignified chamber with its pulpit and pews, but rather in a linoleum-tiled basement with a circle of folding chairs. Sometimes it seems we should all be responding, “Thank you for sharing.”

I’m impressed by the honesty of this random cross-section of registered voters. Many had answered “Yes” to the question about whether “you or someone close to you has been the victim of a crime.” Some of their stories are quietly devastating, even just as stark recitations of the facts. Prospective Juror 26 explains her answer with dignity, courage and an economy of language. “My son was …” she begins, and her jaw shudders and her shoulders twitch. She clenches her teeth and gathers herself for a moment, then completes her report to the judge.

“Do you believe that this will affect your ability to serve fairly and impartially?” the judge asks.

“I don’t know,” Prospective Juror 26 says. “Honestly, I just don’t know.” And she is not the only one fighting back tears as she says this.

Remember, on a daily basis, that everyone else has a story.

But I’m also impressed by a kind of ritualized dishonesty in this proceeding. It’s not a deliberate attempt to deceive, but the implicit recognition that some of these questions have “correct” answers, and that the correct answers are not necessarily the true ones. We are charged — under oath or affirmation — to answer truthfully. But we also seem to be expected to answer correctly, and that expectation seems inhospitable to some truthful answers.

Thus, for example, the miraculous implausibility of 40 people, selected at random, and not a single one of us saying that we or anyone close to us has been the victim of domestic violence. It’s possible that this is truthful, but statistically it is far less likely than having two former Houston jurors in a Pennsylvania courtroom. Truthful or not, there seems to be an implicit assumption that domestic violence is not among the crimes that count on that question — not a correct answer.

Two of the more interesting questions are Nos. 8 and 9, which ask, respectively, if we are more likely or less likely to believe the testimony of a police officer than that of any other witness in court. Those who answered “Yes” to question No. 8 — including many, but not all, of the cops and cop-relatives in our group — were later quizzed individually by the judge at sidebar. None of us answered “Yes” to question No. 9.

That includes me, although I thought longer and harder about that question than any of the others. I reflected on that distinction between truthful and correct, and on the meaning of informed skepticism and how it relates to impartiality. I decided, I think truthfully, that my skepticism would not make me less likely to believe the testimony of a police officer.

Had I been selected for the trial jury, I would have had to revisit that reflection, as the case being considered included a charge of “resisting arrest.” There is, of course, such a thing as resisting arrest and the letter of the law means something there. But my informed skepticism is in high gear when considering such a charge. I hear those words, “resisting arrest,” and cannot help but recall numerous examples — documented, corroborated, videotaped instances — in which that charge has meant nothing more than a failure to grovel, or than a protest of actual innocence perceived as disrespect or disingenuously portrayed as disrespect. An impartial consideration of such a charge, I think, demands a high bar of proof that the person so charged did more than simply ask, “What did I do?”

Maybe that means I should not serve on a jury considering a charge of resisting arrest. Or maybe that means I should.

Some of the questions are more routine. “Are you, or is anyone close to you, employed in the criminal justice system?” Here I dutifully stand and report that my father, now retired, served a couple of terms as a municipal judge in New Jersey. And here we learn that two of the 40 of us are police officers. The judge takes this opportunity to ask each of them again about question No. 8.

“Honestly, yeah, I am,” says the first. That’s an honest answer, spoken truthfully despite not being correct. The second police officer/prospective juror gives the correct answer, attesting that he does not believe that his status as a police officer would make him inclined to trust a fellow officer’s testimony more than that of other witnesses. If that answer is honest as well as correct, then he is probably a better police officer than the other. If not, then he’s probably just more dangerous.

The entire process takes several hours, and the final series of questions seems a bit rushed and perfunctory. Here the subtle pressure to respond correctly rather than truthfully becomes more overt. Anything other than the “correct” response would require an interruption and an apparently unwelcome delay in the process.

“Let the record show no response,” the judge says at the end of each of these questions, with a rhythmic cadence that makes it clear that this non-response is correct.

Tucked in amongst this rapid stream of questions is another statistical improbability. “Have you or has anyone close to you ever been treated unfairly by the police?” I’ve scarcely begun trying to parse the bounds of that category — “anyone close to you” — and the judge has already hurried on to “Let the record show no response.” I’m thinking of a shouting match at the Radnor police station, of a traumatized teenager calling his mom from my apartment, and of my friend Dave Gushee’s reminder that the “boundaries of moral obligation” are a dangerous illusion, but none of that has time to take shape in my brain before the judge has moved on to the next standard question expecting the next standard answer.

I look up to study the face of the defense attorney, the only African American male in the room. He seems accustomed to this customary non-response. Whether or not it was truthful, it was expected and conventional for no one present to say that they or anyone close to them had ever been treated unfairly by the police. It was the correct answer.

Ultimately, I am not among the 14 selected to serve as jurors and alternates. Maybe it’s because my dad was once a judge. Maybe it’s because I truthfully, but seemingly incorrectly, reported that I’d answered “Yes” to one question because someone close to me was a rape survivor (another statistical anomaly). Probably it’s simply just a random outcome of the 7-in-20 odds of being selected.

Anyway, my service to Chester County has now been fulfilled and I will soon receive a check for $9, plus 17 cents a mile. It was interesting. I hope I am called again some day.

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