Opinion

opinion | Nancy Gertner

Assuring fairness during jury selection

Jury selection in the Dzhokhar Tsarnaev trial began earlier this month.

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Jury selection in the Dzhokhar Tsarnaev trial began earlier this month.

Questioning prospective jurors is tedious. The press usually ignores it. In Massachusetts, few judges or lawyers pay much attention to it. One judge bragged about the speed with which he picked a jury: “Ten minutes, tops, no matter what the case is.”

But with the two high-profile cases of Dzhokhar Tsarnaev and Aaron Hernandez , all eyes are on jury selection. A new state statute and guidelines from the Massachusetts Supreme Judicial Court may forecast a new approach for state courts — permitting jurors to be questioned by lawyers, not just judges, and on a broad range of issues — but only for cases after Feb. 1.

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This won’t affect the Tsarnaev case (a federal trial) or the Hernandez case (already underway), but it does matter for future trials. Why? Screening jurors carefully matters because we want the jury members to learn all they need to know about a case from the trial, not the press, and to do so with an open mind. Our brains don’t have separate compartments — prejudicial pretrial information in one area, the sanitized courtroom facts in another. Information bleeds from one chamber into another, or to use a social psychologist’s metaphor, creates a halo effect, filtering the juror’s evaluation of the evidence. And it’s not just pretrial information; a judge has to be concerned about any biases that stand in the way of the jury’s work — including, as in the Tsarnaev case, biases about the death penalty.

Of course, everyone has biases of some kind — only we don’t label them with that pejorative word. We all have entirely human assumptions about the way the world works, grounded in our life experiences. Indeed, that’s why we want a jury, not a judge, to make critical decisions; the Constitution guarantees the “common-sense judgment of jury” to the “more tutored but perhaps less sympathetic reaction” of a judge, as the Supreme Court described it. There’s the rub — how to select jurors, with their common sense and life experiences on the one hand, but who are open-minded, on the other.

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The task is daunting with today’s saturated press coverage — from multiple outlets, day and night, on screens in restaurants, airports, and hotels. Even after a trial begins, it is not enough for the judge to tell jurors not to read the newspaper or listen to the radio news. Trials are reported in the banner headlines of search engines or the crawl under the televised football game or the teaser after a popular show. Jurors have to work hard to disentangle themselves the media onslaught to focus on the trial.

How to question jurors could not be more important. Social scientists spend hours honing their questioning techniques — don’t frame the question in a way to forecast the answer if you want an honest response; questions should be “open ended.” Judges, in contrast, ask questions like: “Surely you can you set aside whatever you have read or heard about this case and be an impartial juror as the Constitution requires?” The acceptable answer could not be more clear, and it may not be the most honest one.

Who the questioner is matters — a lawyer, on the juror’s level, or a robed judge, on an elevated platform. As a lawyer, I tried a case with substantial press coverage in the Globe on the eve of the trial. Questioned by the judge, a juror admitted she had read the article, but insisted she could be fair. I begged to be allowed to follow up. I asked: “When you read the paper on Sunday, did you get any impression about the defendant?” “I just know what she had done,” the woman replied. When I asked, “what do you mean,” she repeated, “Well, we all know what she has done.” A few questions — open-ended, asked by a mere lawyer — was all it took to discover she was biased.

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When a juror insists that he has that compartmentalized brain — prejudicial facts in one part walled off from the rest — should the judge accept it? As Justice Sandra Day O’Connor observed, a “juror may have an interest in concealing his own bias . . . [or] may be unaware of it.”

How can we be sure of a fair trial? Is it the enough that the court can find 12 jurors who insist on their impartiality, or that they manage to come to a verdict? Jurors may well be wrong about their biases; verdicts, as we have come to realize, may be in error. We have to assure fairness, not only in way the trials are conducted but also in that tedious but critical process of jury selection.

Related:

Editorial: Tsarnaev trial must be scrupulous, even if that means moving it

Joan Vennochi: Tsarnaev jury’s built-in bias

Joan Vennochi: Can Aaron Hernandez beat the rap?

Nancy Gertner is a retired federal judge and a professor at Harvard Law School.
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