Criminal Background Checks Of Jurors
posted by Dan Filler
Perhaps it’s necessary, but the decision of Illinois federal court officials to conduct criminal background checks on prospective jurors in selected cases strikes me as troubling. I imagine that both prosecutors and – where feasible – defense lawyers sometimes run criminal record checks on jurors. But once the court system adopts this as a normal part of jury selection – and people learn about it – i worry that it will begin to corrode the jury process. If coming to court means that these records will be dredged up, it seems possible that many ex-offenders (be they drunk drivers or drug dealers) will just stay home. It saves potential embarrassment. And it avoids a pointless trip: these individuals might assume they won’t be selected.
Once a court goes down this path, what is the logical end? There are many factors that may play into an individual’s biases – marital status, bankruptcy history, job expeience, political affiliation, and the like. Just as some jurors will lie about their criminal record, others may choose to lie about these sensitive matters. Should courts engage in the broader background checks that are now available, simply to give interested lawyers additional data about their venire? In a sense, it would put urban lawyers on the same footing as their rural counterparts. Any good small-town lawyer will know, or will bring along someone likely to know, the backgrounds of many potential jurors. But urbanites value privacy, and any policy that tends to undermine that – from criminal background checks, to checks of voting records, to a quick search on ChoicePoint – has the potential to scare off jurors.
I worry about the race effects of this policy. We know that African-Americans are disproportionately represented among those convicted of crimes in America. Relatedly, they are also disproportionately represented among criminal defendants. The decision to engage in widespread criminal background checks on members of the a jury venire may have a disparate impact on African-American jurors. Worse, it could further undermine the actual – and perceived – fairness of the justice system itself.
December 12, 2006 at 12:06 am
Posted in: Criminal Law
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Responses (5)
Maryland Conservatarian - December 12, 2006 at 2:10 pm
perhaps our experiences are a little different but here in Baltimore, people don’t ignore jury summons because they think they WON’T get picked – I belive you get the word out that prior convictions could keep you off a jury and people will be bringing their rap sheets to jury duty just to make sure the court has the whole record; people will be asking if speeding tickets count and jaywalking on the way to court for as long as it takes to get caught.
left unsaid is where you would draw the line. what questions should be permitted and what shouldn’t. As a Crim Defense lawyer, I probably wouldn’t object to somebody just because they have a record but I certainly understand the reluctance of the state…and further the general populace if convicted persons are passing judgment on others.
LM - December 12, 2006 at 4:30 pm
This is a purely rhetorical question, but I have to wonder: What do we consider to be an “impartial jury”?
Additionally, I find it disconcerting that America now has about 13 million ex-felons. If every state were to adopt Illinois’ policy, then 7% of the adult population would be ineligible to serve on a jury.
This policy appears to be just one more addition to a profusion of roadblocks that ex-offenders face in attempting to re-enter society (in the sense that the privilege — if we can call it that — of serving on a jury is deprived of ex-offenders, thereby creating an “us versus them” dichotomy).
Ex-offenders have served their time, so why do we continue to punish, even after they are released from prison?
Andrew - December 12, 2006 at 6:20 pm
I don’t know that this would provide that much more of a disincentive for ex-cons to show up for jury service. First, I wonder how widely known it is that these checks are not already performed, or that one’s criminal history is not generally known within a courthouse, that there isn’t some giant database connecting all your information already.
Second, isn’t one’s criminal history a routine question in voir dire? It would seem to me, as someone who has never served on a jury, but who has read a fair number of judicial opinions involving voir dire, that you have better-than-even chances of that coming up at some point anyway. What difference, then, would a background check make, except for those who might lie about their criminal past?
Sorry - December 12, 2006 at 10:44 pm
The idea is to discourage all but rich people – those who have nothing to lose – from serving.
Just like extremely low salaries for many public service jobs make it impossible for anybody but the well to do to consider taking them. They don’t pay enough to live on.
There are subtle trends like this all through society, and they are disturbing.
LM - December 13, 2006 at 7:21 am
“The idea is to discourage all but rich people – those who have nothing to lose – from serving.”
I’m not so sure about that. If I make $100 per hour as an attorney, but am only compensated $20/hour as a juror (more or less, depending on where you live), I have every (economic) incentive NOT to serve on a jury.
I think the rationale behind the policy is that persons with a criminal record might lie about their background during voir dire. The background check serves to ensure that attorneys know whether the juror was honest about his record. Honesty, after all, is a virtue, and I think we’d all prefer to have honest jurors deciding our fate, rather than dishonest ones. (Whether that actually happens is up for debate.)
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