The Blindfold for Lady Justice Does Not Go on Until After Jury Selection
| Publication year | 2011 |
| Pages | 0206 |
The courtroom is the chamber where our society determines the truth in disputes among our citizens. Truth is not "discovered" in a metaphysical or absolute sense, but the chamber is designed to be used by humans to expose errors or abuses of power that masquerade as truth in the particular dispute at issue. The relative and opposing positions of the particular truths being pursued are framed by the pleadings of the actual parties to the dispute. Pictures and stories are placed in those frames with the desire that the most reasonably satisfying depictions will be accepted as the closest resemblance of the truth. Jurors are selected or seated by the actual parties using their divergent and opposing determinations that these 12 are the most likely candidates for the mythological jurors who will apply the rules of law to make an important decision on a matter that does not concern them directly, but will have a societal impact that is not confined to this chamber and this dispute. These jurors are not like art critics or consumers who view the opposing frames and their pictures/stories with a detached objectivity to award a prize to the winner. They are not simply dispassionate judges of the presentation. Instead, they are inserted into the frames, pictures and stories, and become a part of its dynamic life. They are not sterilized (like surgeons) before entering the frames. Indeed, the law expects them to bring in their own views, experiences and values-components of what is termed "common sense." This injection causes the prepared and strategically designed frames, pictures/stories of the actual parties to move beyond three-dimensional media, videogames or simple audience participation. Twelve strangers have been placed inside the story and it will morph according to their expansions, exaggerations or filtering of the prepared strategic components. Unfortunately, we are not able to watch this morphing as it is occurring. Even though the jury is inside the frames in a dynamic way, they are physically separated in the chamber while sitting in a box and appearing to passively observe the story being acted out by the parties. No applause signals their acceptance of significant points or messages. No "boos" attend their response to perceived falsehoods or foul play.
The truth doesn't always walk in-sometimes it has to be dragged in
The truth does not always voluntarily walk in through the doors of the courtroom. Sometimes, it has to be dragged in, kicking and screaming. Documents and people have to be subpoenaed to appear. Once inside the chamber, they are tested by fierce advocates for opposing positions under the rules of evidence and the law. The frames and pictures/stories previewed in opening statement by the parties are subjected to evaluations of the legal burden of proof and the practical burden of persuasion. Did the story live up to its preview in a technical manner "as the record?" Was the performance convincing in its character? Did the theme resonate with the jury and find acceptance in their individual and collective beliefs, values and life experiences? In the end, after the jury deliberates in secret and delivers its verdict, the truth is revealed and walks out of the courtroom doors and into public society. One side's version of the truth has lost. One has prevailed. The system has worked by providing an orderly resolution that has been declared the most reasonably satisfying and factual truth in this dispute.
The courtroom reveals the best and worst of us
The courtroom has been my workplace for over 30 years. I have found it both inspiring and depressing. It is a chamber that provides a view of the best and the worst in all of us. The human tension between the powerful and the weak, the fair and the biased and the honest and the dishonest is always in attendance. This tension will always be with us in a system of justice that is administered by a democratic society that relies upon its diverse members to fairly and impartially resolve disputes under the facts and the law. Neither the facts nor the law have life until it is breathed into them by the jury. They are not self-sustaining or even real until they acquire the breath and voice of the jury. This tension is what makes the system work if it is attended by advocates who strive to expose the tension and offer a resolution that fits within the law and "feels right." This tension system works if the jurors selected by the parties are the most likely candidates to openly face the facts and make difficult but necessary decisions that preserve the spirit and intent of the law.
Our system of justice is the only real insurance we have in our individual and collective lives, safety and well-being. Obedience and respect for the rules of law (and its orderly process) are the premiums we pay for this insurance. If that premium is not paid by everyone (parties, counsel, the court and the jury), the insurance disappears and there is no protection. The necessary tension of the adversary system is snapped so that brute strength, power, prejudice and political agendas infect the process. Our laws become nothing more than literature that can be re-written as "faction" (a combination of fact and fiction) on the whim of the jury that chooses not to pay the insurance premium of obedience and respect for the law.
Obedience and respect are the insurance premiums
There is reason and hope for our continued dedication to this system. As advocates for our client's cases, we have an obligation to pay our premiums as well. Part of that premium is the opportunity to have a voice in the selection process of potential jurors. We are expected (if not required) to examine potential jurors on the practical respect for the tension of the opposing positions that make up this dispute. If both sides do their work, the jury that is seated will be composed of people who will respect that tension and approach it with an open mind while giving us some insight into their individual/collective backgrounds that likely play a role in their tour of duty. If properly and completely undertaken, this opportunity enables the trial attorneys to assure a jury box that is as balanced and uncommitted to a pre-determined outcome as is reasonably possible in our democratic society, a jury that is not expected to deliver a verdict that is "faction" or simply a statement of sympathy or bias that is not based upon a fair and impartial finding of the facts presented while guided by obedience and respect for the law. How do we find such jurors who will stand on the watch tower of this specific case and perform these lofty duties? Where do we go...
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