Kobe: In search of the American jury
By Burton S. Katz/Retired L.A. Superior Court Judge
The jury is us. It comprises all the good and the bad. It contains our biases, hate, small-mindedness, distrust, disgust and envy as well as our empathy, quest for truth and a sense of justice and morality. Each of us has a set of prejudices that we have acquired over a lifetime. Some are innocent such as preferring chocolate to vanilla ice cream. Others are malignant such as hating a person because of her color. Still others preferring Windows-based PCs over OS-based Macs are acceptable so long as a juror is not being asked to decide which system is better.
The lawyers in the Kobe Bryant trial have a very difficult task at hand. They must cull out those jurors who hold prejudices that would prevent them from fairly deciding the case on its merits-easier said than done. The process of voir dire (to speak the truth) is designed to expose biases that will affect a juror’s impartiality. To this end, a long jury questionnaire is submitted to each juror wherein they are asked to answer questions about their beliefs.
For example, jurors will be asked whether they have read or heard anything about the case; what they think about the charges or the issues discussed in the media. Do they think that Kobe was set up? Do they think that Kobe is more likely than not to have imposed his will on the alleged victim? Are they fans of Kobe’s? Do they hold any prejudice against NBA athletes? Do they have any prejudices against black athletes? Do they feel that black athletes are too violent or aggressive? Have they read that in the media? Do they think athletes are overpaid and spoiled? Have they had any bad experiences with blacks? Do they count among their friends African Americans?
On the prosecution side, the district attorney must be certain that jurors hold no bias against the alleged rape victim because of any negative things they may have read, heard or seen. The prosecution will ask if they have read or heard what the defense has been saying about the charges. Do they have a feeling one way or another about the case as a result? Are they willing to listen to the testimony of the alleged victim? Would they be inclined to acquit Kobe simply because he said he didn’t do anything? Do they believe that a woman has a right to say no to a man’s sexual advances at any time? Do they think that a woman who voluntary visits a man in his hotel room has lost her right to say no to unwanted sexual advances? Do they think a woman has a right to change her mind? If not, why not?
There are, of course, many more questions that will be asked, more refined and nuanced, tailored to the answers of the jurors. The problem is that if a juror really wants to get on the jury, they will be less than forthcoming. Unless the judge gives the lawyers a chance to ask jurors individual follow-up questions that might develop bias or lack of candor, the lawyers will be stuck with the often self-serving answers of the juror-applicants. If that happens, latent bias will drive the course of the trial. The courts, especially the federal courts, seriously limit any individual questioning by counsel in the name of efficiency. Well, efficiency, while admirable, is not the goal-justice is. And that means the attorneys must be able to question the jurors themselves, not the judges who most times conduct very perfunctory and inadequate voir dire.
Whether the jury ultimately selected will be able to give both sides a fair trial remains to be seen. Mark Twain said about jury trials: “The humorist who invented trial by jury played a colossal, practical joke upon the world, but since we have the system we ought to try to respect it. A thing … not easy to do, when we reflect … a criminal juror must be an intellectual vacuum, attached to a melting heart and perfectly macaronian bowels of compassion.”