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.