Thanks to all those who read Part I of this article. Following is an excerpt on a recommended juror competency test from chapter six of my book, Fixing the Engine of Justice: Diagnosis and Repair of Our Jury System.
This article offers a solution to the problems discussed in Part I. Because the obligation of jury service is so important, are we justified in saying that any adult who speaks, reads, and writes English is qualified to render a decision on any issue in any trial? On the face of it, the statement makes no sense. Prospective jurors should be tested for their capacities to comprehend and reason.
With an expanded jury pool (the subject of chapter five), being more selective about who serves as jurors on each case should not create a shortage of jurors. In support of this recommendation, I turn to the Supreme Court’s majority opinion in Taylor v. Louisiana (my emphasis below): In Brown v. Allen, 344 US 443, 474 (1953), the Court declared that “our duty to protect the federal constitutional rights of all does not mean we must or should impose on states our conception of the proper source of jury lists, so long as the source [419 US 522, 528] reasonably reflects a cross-section of the population suitable in character and intelligence for that civic duty.”
This suggests the Court agrees that a juror should be more than just a warm body who wasn’t systematically excluded from the recruiting and selection process. Some will say this is elitism. I maintain, however, that a juror competency test should be one of the easiest concepts to accept.
There is plenty of precedent in our society for eligibility testing. We’re tested throughout our school years, and we don’t get a diploma without passing tests. Diplomas are not entitlements. We’re tested even further if we want more education, in many cases before we are even admitted to a school. We don’t give out driver’s licenses without testing. Many jobs require testing. When we need a special medical procedure, not just any doctor will do. We go to a specialist. The list goes on. Even the army doesn’t accept all volunteers. An aptitude test is administered, even during times of the draft. If you don’t achieve at least the minimum score, you don’t get in, Forest Gump notwithstanding.
Drafting for the military is not unlike drafting for jury service. The concept of obligation or duty versus right or entitlement fits both scenarios equally. Many are called, but not all are chosen.
The evidence presented in many cases today is highly complex. In most instances, attempting to reduce the complexity of that evidence to a level comprehensible by all is futile. Good examples from my case history include patent litigation matters dealing with highly complex computer-integrated circuitry.
Conversely, the evidence in other cases is quite easy to understand with no further simplification required. A liquor store robbery case serves as a good example, where the most important evidence for the jury to evaluate is whether the witness adequately identified the perpetrator.
This suggests that a juror competency test be devised capable of determining various levels of ability. The test would be taken when the juror answers the summons. It should be one similar to those achievement tests we all had to take periodically in our school years. For reasons I have already enumerated via case examples, I suggest logic ability be a significant component of the test.
A juror’s test scores would translate to a rating for that individual. For the purpose of discussion, let’s use a rating scale of one to five, with five being the highest level. A prospective juror’s suitability to sit in judgment on a case would depend on the level achieved in the test. The juror might not be used in a case at that time, but his or her score would remain until the person was retested at a later date.
Confidentiality would be extremely important. The courts should keep all test scores in the strictest confidence. Through education and experience, people tend to gain knowledge. This suggests we should periodically retest jurors. A twenty-one-year-old who tests at a level three now might achieve level four or five ten years later after schooling and other knowledge-enhancing experiences, making that individual more appropriate for complex cases.
The trial judge would rate cases on the same one to five scale. A case with a rating of one would involve evidence relatively easy to comprehend, a fender bender injury case, or perhaps that liquor store robbery example. A five would represent the highest level of difficulty, such as my patent case example. There’s plenty of work to go around, so very few people would be left out completely.
An important component of the rating procedure would be input (argument) from attorneys for both sides. Each side will almost always be polarized on the issue of what level of jurors is suitable for a case. They would argue their positions and the judge would decide. In time, case histories would show what ratings were appropriate, making the arguments less meaningful.
The rating procedure would also allow the judicial system to react appropriately to the demands of cases involving emerging technologies. The first trials involving a new technology may require a level five rating, whereas that rating could easily drop to a four or three with the passage of time and public familiarity with the technology.
The O. J. Simpson case might be a good example. That case relied heavily on DNA evidence, something that was relatively new to the general public, whereas many years later, the accuracy of that evidence is very well known. The case rating would be established long before the trial. Jury selection for that trial would only involve jurors with a rating equal to or higher than the case rating. That is to say, cases with a rating of one should not be decided only by jurors with that rating. The jury box for a level one case should be filled with individuals with ratings all the way up the scale. Likewise, level two cases should start with level two jurors but also include the higher levels and so on.
Within the highest levels, we might consider additional divisions according to the subject matter. A case where highly complex accounting issues are key to determining a just verdict might rate a five, but a juror suitable for that particular case might not be suitable at all for another level five case involving a patent on a computer chip. So, within level five, we would need multiple divisions to account for the diversity of evidence and the suitability of jurors to judge that evidence. Only jurors who achieved the level matched to a particular case would be considered as jurors in that matter.
The danger to avoid with the juror rating system is having accounting cases, for instance, decided only by jurors with accounting degrees. As discussed in chapter four of Fixing the Engine of Justice, we are not entitled to a “jury of our peers,” nor is that a good idea. To avoid that problem, the testing and rating of jurors should not only be designed to determine what knowledge the juror has now, but what the individual is capable of learning in a trial environment.
Think of it equally as both an aptitude and achievement test. We have all taken them. They weren’t pleasant, but they didn’t kill us. Bring two #2 pencils.
Likewise, we will always need to look for ways to teach highly technical subject matter to jurors who don’t have specific training or experience in those fields. This will allow us to continue to impanel jurors with varied backgrounds, a practice relevant to the goal of achieving equity. In this context, “equity” as defined by Webster, is “a resort to general principles of fairness and justice whenever existing law is inadequate.” Generally, it means the system recognizes there’s more to deciding the fair outcome of a case than technicalities, which is why we should not dismiss the importance of commonsense reasoning.
Obviously, level five jurors will be harder to come by than jurors in the lower levels, but remember, we with an expanded jury pool (again, a chapter four subject), we would pick up a lot of those eggheads who don’t currently serve on juries.
We don’t have a shortage of brainpower in this country, with all evidence in our courtrooms to the contrary. We just need to include it in our jury system. If the concept of pre-qualifying jurors by life experience and knowledge is elitism, then in a crude and inefficient way, we have been practicing elitism since shortly after the Boston Tea Party.
Jurors suspected of having low comprehension skills are often struck by one side or another during the voir dire process. These strikes are made on suspicions, hunches, experience, and/or research. For that matter, and speaking now to any attorney who would argue I have described an elitist system, when you choose a painter to paint your house, do you check references and licenses? Do you ask how long the painter has been in business? Of course, we all do, and we are testing for competency when we do so. Is the verdict of a jury less important than the verdict in the question of who paints our houses? For that matter, would it be a good idea for a divorce attorney to jump into a patent case, or a junior associate to be lead counsel in a billion-dollar matter?
Read more about this issue and others in Fixing the Engine of Justice: Diagnosis and Repair of Our Jury System.