Voir Dire and Epistemic Limitations

Jared Mayer, JHU:

This past Monday, the Supreme Court heard oral arguments in the case of Foster v. Chatman. Timothy Foster was arrested as a suspect in a homicide case. Preceding Foster’s trial, the prosecution proceeded to remove jurors of its choice without further explanation in accordance with its right to strike jurors voir dire. The prosecution struck all of the African American members of the jury. Foster is also African American, and Foster’s counsel claims that the prosecution’s voir dire choices were not coincidental. The issue at hand is whether a prosecutor in Georgia acted constitutionally in striking black jurors from a trial jury.

This is not the first time the Court has visited this issue. In 1986, the Supreme Court, in a case called Batson v. Kentucky, ruled that a Kentucky prosecutor’s voir dire removal of African American jurors for the sake of being black was unconstitutional. And the facts of that case are eerily familiar to those before the Court now. Both cases had juries that were initially composed of both white and black jurors. Both cases featured black defendants. And in both cases, the black jurors were purposely and systematically removed from their respective juries, allegedly because of a sympathy that they were bound to feel for the defendants. More disturbing is the fact, as presented by Foster’s counsel, that the Georgia prosecutor removed the black jurors from the jury solely because they were black. Scrawled next to their names, in fact, was the word, “Black,” condemning them to removal from the jury.

The reasons for the unconstitutionality of this practice are, if not evident enough, elegantly provided in Justice Lewis Powell’s majority opinion decision in Batson. “Selection procedures that purposefully exclude black persons from juries,” Justice Powell said, “undermine public confidence in the fairness of our system of justice.”

True enough. But what Justice Powell did not point out was that any voir dire system would lead to such pernicious results. Justice Thurgood Marshall, who authored a concurrence in Batson, noted that “[Batson] will not end the racial discrimination that [voir dire selection] inject into the jury selection process. That goal can be accomplished only by eliminating [voir dire selection] entirely.” Justice Marshall was right to make this point; he also cited evidence to prove that in the vast majority of instances, voir dire selection was used to exclude black jurors at a far higher rate than white ones. And his solution is certainly levelheaded. If the mechanism consistently produces discriminatory, prejudiced results, perhaps its time to scrap it. But my prognosis, by contrast, is far broader and, to some degree, more bleak.

It is sweeping in that the issue lies in the very criminal justice system we employ. In this scheme, attorneys represent both the prosecution and the defendant and marshal evidence to prove their respective cases before a jury of their peers. The attorneys, while not always talking to the jury, certainly direct all “relevant” information to the jury during all parts of their respective arguments, from opening argument to cross-examination of the witnesses to the closing argument.

And thus the heart of the issue is revealed. All that is required is that the attorneys provide the best argument, not the most truthful one, to sway the jury in one’s favor. Powerful and poignant rhetoric provided by the attorneys also play their part in the creation of this phenomenon. Juries, despite receiving rigorous legal instruction from the judge before and during the trial, are untrained in determining the nuances of evidence. Opposing counsel can damn a completely reliable and truthful witness by bringing attention to an unflattering yet harmless habit, such as nail biting. No wonder attorneys deeply analyze and harp on the composition of the jury. If they can mold the jury such that it will be more sympathetic to its case, it will do so by any means necessary, even employing the most blatantly racist tactics – including marking unwanted jurors as “Black.”

Noticeably absent from the courtroom debate is the judge. And in this respect, the judge serves in a capacity most similar to that of a referee. She provides authority to the forum and ensures that all courtroom rules and procedures are duly observed. But, like all other referees, the judge does not involve herself in the inquiry; that would be in some sense having the referee play for both teams. The judge is required to sit quietly on the bench, waiting patiently for the attorneys to argue extensively until the jury comes to a verdict. Attorneys, then, are not responsive to any body, group, or figure that, in fact, tracks the truth. It is most ironic, then, that out of all the trial participants in the room, the one that is most qualified to ask truth-tracking questions – the ones that will determine the veracity of a witness, or a claim, or a piece of evidence, or whatever else – is rendered silent by law.

Is the conclusion that we ought to repeal our jury trial system for a bench trial system? That is not my point. Bench trial will not necessarily solve these issues, and no doubt many can argue in favor of the virtues of the jury trial and the flaws of the bench trial. And it may well be, to play my own devil’s advocate, that any given judge can be just as capricious as any jury member. What is more, this unusual judge alone will issue the verdict in the case without discussing it with her similarly invested peers, unlike the jury members. The debate over the costs and benefits of both models can be endless.

This is where the bleakness comes in. We are stuck between two unsavory positions. The first requires us to defer the task of determining the truth to a group who will not be able to ask the epistemic, truth-tracking questions we seek. The second provides us with a risk in numbers; one person, herself not analytically infallible, alone decides a defendant’s fate. Even a judicial tribunal provides us with minimal protection in numbers; now only three judges need to be wrong to convict an innocent defendant. We are then left with a starkly damning, brute fact: we can never be certain that we have convicted the right person. Any kind of certainty we have can be undone with the emergence of new evidence, as was sadly done many times before. We have failed, we are failing, and we will fail. Such are the limits of our human capacity to know. Perhaps if we come to fully embrace this epistemic sobriety, we will be able to forge a more truthful – and just – future.

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