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A jury in Suffolk Superior Court in Massachusetts in 2009.

Too ‘Woke’ for the Jury Box?

How movement moments complicate jury selection.

Constitutional law requires that jurors be impartial. They must fairly evaluate evidence and wait until the end of the trial to decide on a defendant's guilt in a criminal case. That’s easier said than done, especially of late.

I’ve chosen well over 100 juries in my career as an attorney in the Public Defender’s Office in Baltimore. Over the last several years, starting with the Black Lives Matter movement, finding impartial jurors has felt increasingly difficult.

Potential jurors seem to believe that their positions on, say, police misconduct make them ineligible to participate. These individuals frequently give answers during jury selection that disqualify them from participating.

The average American might know that attorneys on a case select the 12 “good and true” citizens plus alternates to sit on a criminal jury. Most probably aren’t familiar, however, with the preliminary process in court called “voir dire,” which translates roughly to “to say what is true.”

At the beginning of voir dire, in Maryland (and many other states,) the judge asks a series of questions to determine the impartiality of potential jurors. The judge poses the questions and anyone who responds by standing silently is called to the bench with the prosecution and defense to explain his or her answer.

Non-bias related issues like scheduling conflicts don't require too much inquiry. The judge either accepts the excuse or not. Potential prejudices covering a range of issues, however, take time to sort through.

In pretty much every criminal voir dire, a judge will ask potential jurors, "Would you give more or less weight to the testimony of a police officer versus that of another witness?" In recent years, I’ve witnessed a growing number of jurors stand in response to the question.

When asked by the judge to explain at the bench, many reply, "I can never believe a cop" or "I don’t trust the police" or "Too many cops lie.” Many judges consider those responses fatal to one's impartiality and immediately strike the juror without further inquiry.

The judge may follow up with some variation of, "But can you evaluate all of the evidence and still make a fair and impartial decision?” Time after time, I’ve seen potential jurors stand confounded before finally admitting that they’re not sure. As a result, they’re dismissed too.

While potential jurors take an oath to answer questions honestly during voir dire, and there are undoubtedly some with hard biases, I suspect many socially conscious citizens overstate their positions.

Those individuals should think carefully about whether their closely-held beliefs actually result in bias before answering questions. They should take that question more seriously because judges will almost always err on the side of caution and eliminate those on the fence—or simply posturing—from jury pools, even if they might make for good jurors. Defendants lose out as a result.

Is your position really going to cause you to ignore evidence? Do you disbelieve every single cop, or do you have to hear from them first to decide? What if you were the victim? These are kind of questions potential jurors should ask themselves to better determine whether they actually have a bias or just a point of view.

It’s my experience that people generally concede that they need to hear the actual evidence before coming to a conclusion when pushed by a judge, but judges don’t always push. And attorneys can interject at the bench, but only so much. So, in lieu of a system that can decipher between immutable bias and perspective, it’s up to potential jurors to do some soul-searching and with their duty to serve in mind.

We’ll likely never achieve meaningful justice reform without more socially conscious individuals opting in, and our system would only benefit from having them participate as jurors.

Todd Oppenheim is a veteran attorney in the felony trial division of the Baltimore City Public Defender's Office.