The Jury On Trial


Although we cannot measure how the print and the Narrative affected future jurors, we do know that at least two twentieth-century academic historians uncritically accepted this type of special-interest pleading. Oliver M. Dickerson took a similar radical propaganda effort as documentary evidence of bad behavior by Tories and soldiers, and Edward Channing relied on the Pelham-Revere print as proof that during the massacre someone had fired from a window in the Boston Custom Hose, this although the customs employees indicted for that offense had been acquitted by a jury that returned a verdict without leaving the box, and notwithstanding the chief prosecution witness’s prompt conviction for perjury. If the propaganda could influence experts like Dickerson and Channing, writing with the advantage of hindsight, it is hard to believe that what people in Suffolk County were reading, seeing, and hearing did not shape the popular view of the soldiers’ culpability and in some instances affect the future jury’s impartiality.

Of course, despite pious protestations to the contrary, modern lawyers and their clients (including, in a criminal case, the government) do not want impartial jurors; they want jurors who will return a favorable verdict. Yet as anyone who spends working days around a courthouse knows, knowledge before the trial of the purported facts and even admitted prejudice do not necessarily equate with unfairness or a decisional bias. This was even true in 1770: After all, the massacre trial juries all brought in correct verdicts. It is true today, as an experience of my own sharply demonstrates.

The defendant had been charged with unarmed robbery. Because he was African-American and the complainant white, Massachusetts law required individual questioning of every prospective juror specifically to explore the possibility of racial bias. Accordingly I asked each one, “Would the defendant’s being of a different race from the complaining witness in any way affect your decision?”

One woman replied: “I’m a middle-aged white woman, with a background that includes [and she mentioned where and how she was brought up]. If you are asking whether I have any bias against blacks, I have to say yes. But if the question is whether my bias would prevent me from deciding this case entirely on the evidence, the answer is no.” Both sides immediately declared complete satisfaction, and the juror took her place in the box. (The outcome, however, had nothing to do with the jury selection: In midtrial the defendant pleaded guilty.)

Unlike many states, Massachusetts does not ordinarily permit jury voir dire, the process of allowing counsel to question potential jurors, ostensibly to ferret out prejudice, but in reality to get a head start on the process of persuasion. The secondary object is to identify jurors the lawyer does not wish seated and then to bring each one to make a self-disqualifying admission. If this technique fails, the attorney can use a peremptory challenge, which requires no stated reason or justification, but of which each side has only a limited number.

It used to be that lawyers sizing up a jury panel relied on experience, intuition, and common sense. Over the last twenty years, however, science, or rather quasi-science, has taken a seat at the counsel table, with psychologists and pollsters supplying precise data that purport to assure a sympathetic jury for whichever side retained the experts—a development dissected and skewered in recent studies by Jeffrey Abramson and Stephen J. Adler.

With some justification, lawyers and judges like to believe that legal procedure has evolved and improved so much that trials are no longer like games. We ought nonetheless to admit that the execrated “sporting theory of justice” has merely given way to a different form of extrajudicial competition, a contest to produce the jury group most likely to bring in the right verdict. Sometimes, in a criminal case, which requires a unanimous verdict, the defendant aims for a jury that will deadlock, supposing that his defense will be sharper the second time around and the prosecutor duller, even hoping that after the first failure the government will quit or trusting, like Mr. Micawber, that by the second trial something (or someone) will turn up or, better, vanish.

Jury-picking has been a contest to gain an early advantage at least since the Boston Massacre trial.

This jury-picking tournament has gone on for centuries, even in Massachusetts. When John Adams was defending Captain Preston in the Boston Massacre case, he took special pains during jury selection to bring favorably inclined veniremen into the box. In this endeavor Adams received advice from a Tory merchant named Gilbert Deblois, a friend of Preston. So canny were Deblois’s suggestions that five of the twelve jurors, including Deblois himself, ended up on the panel, having been drafted as “talesmen,” or available bystanders, when challenges used up the original venire panel.