Jury Duty & Bilinguals

[LarryAndro]

I was in a jury pool this week, but was struck from jury selection because of extreme bias against straight razor users. (Why else would this have happened?) Something happened during the jury pool examination that has me mystified. Maybe, the lawyer types here can explain it to me.

There were 6 members of the jury pool who spoke both Spanish and English. They were told that there might be some testimony given in Spanish and translated into English. The question addressed to the bilinguals, repeated six times for each juror and several times reiterated by the judge was...

Can you disregard the testimony when given in Spanish, and base your verdict totally on the English translation of the Spanish, even if you believe the translation into English to be incorrect?

They had already been told that the court expected them to disregard the testimony given in Spanish.

I don't get it! It is like saying to an engineer on a lawsuit over materials (iron, plastics) failure to completely disregard his personal knowledge of engineering and totally base his verdict on the expert testimony of engineers. To be more explicit, it seems to me like it is saying the juror should totally ignore his life experience and only consider what he is told by those who testify.

I don't get it! Help!!

 

[stobes21]

I was in a jury pool this week, but was struck from jury selection because of extreme bias against straight razor users. (Why else would this have happened?) Something happened during the jury pool examination that has me mystified. Maybe, the lawyer types here can explain it to me.

There were 6 members of the jury pool who spoke both Spanish and English. They were told that there might be some testimony given in Spanish and translated into English. The question addressed to the bilinguals, repeated six times for each juror and several times reiterated by the judge was...

Can you disregard the testimony when given in Spanish, and base your verdict totally on the English translation of the Spanish, even if you believe the translation into English to be incorrect?

They had already been told that the court expected them to disregard the testimony given in Spanish.

I don't get it! It is like saying to an engineer on a lawsuit over materials (iron, plastics) failure to completely disregard his personal knowledge of engineering and totally base his verdict on the expert testimony of engineers. To be more explicit, it seems to me like it is saying the juror should totally ignore his life experience and only consider what he is told by those who testify.

I don't get it! Help!!

Alright, I'll wade in here. The court wants the jury to consider 1 set of evidence only. That is the evidence that will be preserved via trial transcripts and eventually examined on appeal if it ever goes to appeal. And that is the english translation of any testimony in spanish. The other aspect is that court certified translators are trained, tested, and certified to translate the language. The lawyers have no idea what language background any particular member of the jury has. Perhaps one of the jurors speaks a different dialect, interprets a slang or other non-standard phrase differently than the translator, or something else along those lines. By making sure the jurors all listen to the exact same translation the court is sure that they are all considering the same set of evidence presented in the same way.

 

[stobes21]

...It is like saying to an engineer on a lawsuit over materials (iron, plastics) failure to completely disregard his personal knowledge of engineering and totally base his verdict on the expert testimony of engineers...

And to address this particular point: if I were trying a case over a materials failure I would almost certainly strike any juror who claimed expertise in materials science or engineering. I want the jury to hear my vetted expert give an analysis, not defer to some fellow juror who may or may not have any idea of what he's talking about.

 

[LarryAndro]

And to address this particular point: if I were trying a case over a materials failure I would almost certainly strike any juror who claimed expertise in materials science or engineering. I want the jury to hear my vetted expert give an analysis, not defer to some fellow juror who may or may not have any idea of what he's talking about.

I can give you your points, and I can see that they have merit. And, as an attorney you are expected to strike the engineer. And, want Spanish ignored. If I were on trial, I would want that from you.

But, is it a practical instruction?

Asking you to doff your legal background, do you understand why the whole jury pool was a buzz over the point? Audibly in rebellion.

Possibly, this is one of the maddening situations in life where two competing viewpoints both have merit.

 

[Thebigspendur]

Selecting a jury for trial is an art. An attorney for the defense, if he could would want a Jury made up of the same race and religion and economic class as the defendant and poorly educated people who might be easier to sway in his favor. The prosecution knows this and they want to limit these choices.

I worked in Law Enforcement and there is no way in hell I would ever be selected for any criminal trial and probably not a civil one either.

The last thing an attorney wants is say an engineer on a case involving structural failure where you might know the defense is presenting false evidence to sway the uninitiated.

 

[stobes21]

I can give you your points, and I can see that they have merit. And, as an attorney you are expected to strike the engineer. And, want Spanish ignored. If I were on trial, I would want that from you.

But, is it a practical instruction?

Asking you to doff your legal background, do you understand why the whole jury pool was a buzz over the point? Audibly in rebellion.

Possibly, this is one of the maddening situations in life where two competing viewpoints both have merit.

Is it practical? Probably not. The ideal situation is that a completely unbiased jury comes in and evaluates the evidence as presented and makes a decision based on the evidence and the instructions of the judge. But of course that doesn't happen. Every juror is biased in some way or another and will rely to at least some extent on their own personal experience, prejudices, and beliefs. What the judge and attorneys try to do is minimize the chances of outside factors playing a role in the decision. We all know it isn't ever going to be ideal. So prosecutors/plaintiffs try to swing the inevitable bias their way, the defense tries to swing it their way, and the judge ties to moderate and keep it neutral.

And yeah, I understand why the jury pool would have had a hard time accepting that. I would expect most people who spoke fluent Spanish would only listen to the witness himself/herself rather than the translator. I would guess that many judges wouldn't even try. But you wanted to know why, so I tried to explain it.

 

[LarryAndro]

I have a follow up question for the lawyer and legal types here. My last name is Andreassen, often mispronounced. When it came my turn to field a question by the prosecution attorney, he pronounced my name incorrectly and asked if he said it right. I pronounced the name for him.

Then, he asked me why I was smirking during the last question. That surprised me, as I had no recollection of the previous question due to his comment about smirking. I still don't think I had any type of wise *** look on my face.

On reflection, his comment about my smirking had a significant effect on my answers to his following questions. My mind was thinking about two things at once: the question, and why in the world he would say I was smirking. Consequently, I later realized that my answers were much less guarded (to avoid embarrassment from saying something dumb) than they would have been otherwise.

Possibly, I was smirking. I have almost concluded that it was a purposeful stratagem by the attorney to elicit more open and uncensored comments from me. And, it worked!

So... does this sound like a typical technique by lawyers, or am I giving him more credit than deserved?

 

[stobes21]

...So... does this sound like a typical technique by lawyers, or am I giving him more credit than deserved?

You're probably giving him more credit than he deserves. It's certainly possible that he uses that as a strategy, but unless he used it on most of the other people on the panel then it seems unlikely. He probably saw what he thought was a look and wanted to followup. It is also possible that something else about you concerned him -- your dress, demeanor, interactions with others on the panel, etc. -- and he used that as a means to focus specifically on you.

Jury selection is an art. An attorney skilled in voir dire can ask questions in such a way as to strike for cause almost anyone he believes will be a problem for his case. And the particularly good ones can have the jury practically eating out of his hand by the end of the selection process, giving him a huge advantage before the trial even starts.

 

[LarryAndro]

...He probably saw what he thought was a look and wanted to followup. ...

There were a lot of serious exchanges, but a lot of banter and humor in the exchanges also. My best guess is that my facial expression in connection with something I thought amusing was mistaken for smirking.

...It is also possible that something else about you concerned him -- your dress, demeanor, interactions with others on the panel, etc...

I listened to all of the eventual jurors speak and answer questions. From their answers, I have a reasonable guess as to their education and background and general philosophy toward the legal issues discussed. From the jurors that were eventually selected, my tentative conclusion is that the lawyers didn't want anyone who was educated and thoughtful. Going even further, I don't think either side wanted a jury that would carefully consider the evidence. While I understand, while I would want my lawyers to slant things my way if the tables were reversed, it is sobering and discouraging also.

 

[jpakstis]

Alright, I'll wade in here. The court wants the jury to consider 1 set of evidence only. That is the evidence that will be preserved via trial transcripts and eventually examined on appeal if it ever goes to appeal. And that is the english translation of any testimony in spanish. The other aspect is that court certified translators are trained, tested, and certified to translate the language. The lawyers have no idea what language background any particular member of the jury has. Perhaps one of the jurors speaks a different dialect, interprets a slang or other non-standard phrase differently than the translator, or something else along those lines. By making sure the jurors all listen to the exact same translation the court is sure that they are all considering the same set of evidence presented in the same way.

Being a prosecutor, we are also concerned about preserving the record for any appeal (which, after a conviction, is a near certainty). Trials are recorded and a transcript is created, either electronically, or (where we are in Massachusetts) a court reporter. To have to require each of the bilingual jurors to recount the entire trial's testimony would be an almost impossible task, so the court instead relies on this fiction.

 

[LarryAndro]

...To have to require each of the bilingual jurors to recount the entire trial's testimony would be an almost impossible task, so the court instead relies on this fiction.

I admire your forthrightness in admitting the impracticality and impossibility of a bilingual entirely depending on the English translation. At least that is what I understood by the word "fiction" above.

And, as I said above, I do see the reasons for the request that English be used in reaching a verdict.

 

[jpakstis]

I admire your forthrightness in admitting the impracticality and impossibility of a bilingual entirely depending on the English translation. At least that is what I understood by the word "fiction" above.

And, as I said above, I do see the reasons for the request that English be used in reaching a verdict.

Its similar to a witness making an extraneous statement, being objected to, and the judge giving the instruction that the jury "is to disregard" the statement. Well, the witness made the statement, you can't unring the bell.

I never make that objection because my opinion is that the judge's instruction only serves to emphasize the offending statement.

 

[stobes21]

...I never make that objection because my opinion is that the judge's instruction only serves to emphasize the offending statement.

Ha, as you point out though so much about this is preserving the record for appeal. If I as a defense attorney fail to object then most appellate courts would refuse to hear any appeal based on that extraneous/prejudicial comment. Now, the likelihood of actually taking up the issue on appeal is quite low, but you have to make the objection anyway. Obviously you as a prosecutor are in a different position since you don't get to appeal in that situation regardless.

However, I completely agree that the limiting instruction is pretty much worthless in the real world.

 

[stobes21]

...I listened to all of the eventual jurors speak and answer questions. From their answers, I have a reasonable guess as to their education and background and general philosophy toward the legal issues discussed. From the jurors that were eventually selected, my tentative conclusion is that the lawyers didn't want anyone who was educated and thoughtful. Going even further, I don't think either side wanted a jury that would carefully consider the evidence. While I understand, while I would want my lawyers to slant things my way if the tables were reversed, it is sobering and discouraging also.

Educated and thoughtful people frequently decide they don't want to serve and find one of the many ways to get out of serving. I personally want someone who will carefully consider the evidence, but also someone who will actually follow the judge's instructions. In a criminal case that means someone who will acquit if the state fails to prove even one element of the crime beyond a reasonable doubt, even if the juror believes the defendant is a criminal, a scumbag, or even guilty of the crime he is accused of. It's a fine line in practice.

It is important to note though that the lawyers don't actually "pick" the jury in the way that say, schoolyard kids pick kickball teams. The jury pool comes in and is screened through group by group and 1 by 1 with each lawyer striking jurors either for cause or with a peremptory (discretionary) strike. Jurors who make it through that screening are in. They continue to move through the prospective jurors until the requisite number is met. Sometimes they only have to go through a couple dozen, sometimes it is hundreds. Just depends on the trial. So to a large extent the makeup of the jury will be controlled by the particular group lucky enough to be summoned for that panel and who comes up first.

 

[LarryAndro]

I have expressed uneasy understanding of the "disregard" instructions discussed above. I have expressed similar sentiments regarding the striking of qualified and thoughtful jurors to all appearances. I have not expressed my dismay at the number of potential jurors who did not seem to understand guilty until proven innocent. Several went so far as to say that if someone was on trial, they couldn't have gotten to that point unless they had done something wrong. Being on trial was evidence to them.

Yikes! Heaven help our democracy.

Some people say those things to get off a jury. I would like to think those things were said for effect. Sadly, of all the things that were on the negative side for me, the most discouraging was the number of jurors who didn't seem to understand our judicial system, and the basis of our freedoms. It must be admitted though, that these were a small minority.

 

[Obsessed]

Jury selection is an art. An attorney skilled in voir dire can ask questions in such a way as to strike for cause almost anyone he believes will be a problem for his case. And the particularly good ones can have the jury practically eating out of his hand by the end of the selection process, giving him a huge advantage before the trial even starts.

I assume that's why federal judges often conduct voir dire rather than letting the attorneys do it.