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FORUM: Family members in jury pool present reasons for concern

Byron Lichstein

For the second time in the last few years, the Wisconsin Supreme Court is considering what a trial judge should do when he/she has a close family member in the pool of potential jurors.

In State v. Tody in 2005, the Supreme Court held that a trial judge committed reversible error in empanelling his own mother, and this term in State v. Sellhausen the Court is considering whether reversal is necessary when a party’s motion to strike the family member is denied but the party then removes the juror through a peremptory challenge.

Though presumably it is fairly common, especially in smaller counties, for a jury pool to include a judge’s family members, there is surprisingly little appellate caselaw on the topic. Outside Wisconsin, it appears that only two other state appellate courts (in Arkansas and New York) have issued opinions on the subject. Although at first blush a reasonable judge might see no problem with empanelling a family member — after all, both judge and jury are neutral entities, so what could be problematic about a close relationship between neutral entities? — there are in fact several reasons for concern.

The first concern stems from the history of the Constitutional right to trial by jury. The framers were concerned not only with the jury’s neutrality as to the parties in a case, but also with the jury’s independence from the judge. That concern stemmed from the English common law history of judicial tyranny in which judges in the 1600s were essentially puppets of the monarchy who served at the pleasure of the King.

Though juries existed in that system, they were often aggressively influenced and intimidated by the monarchy’s hand-picked judges, even to the point of being punished for disagreeing with the monarchy’s desired result.

Eventually, English statutes and courts provided legal measures to insulate jurors from judicial intimidation and influence. In the famous Bushell’s Case of 1670, jurors were imprisoned for refusing to follow the trial judge’s directions to convict William Penn and William Mead of illegal assembly.

Bushell, one of the jurors, filed a writ of habeas corpus, arguing that his imprisonment was illegal because the jury had a right to reach a verdict contrary to the judge’s directions. The Court of Common Pleas sided with Bushell: the Court held that Bushell could not be punished for defying the trial judge’s orders, because the jury had a right to reach its verdict independent of the judge’s influence.

This common law history shaped the framers’ understanding of the right to trial by jury, and led them to carefully separate the judge and the jury as two wholly independent institutions.

Like the justices in Bushell’s Case, Alexander Hamilton believed that the jury served as “a defense against the oppressions of an hereditary monarch,” and, as such, must remain independent of judges too often subservient to the monarch. Therefore, Hamilton emphasized that providing the right to a jury — separate and independent from the judiciary — created a “double security” against corruption.

The U.S. Supreme Court has recognized this historical understanding of juries in several cases.

Justice Antonin Scalia put the point most concisely in his concurring opinion in Apprendi v. New Jersey: “Judges, it is sometimes necessary to remind ourselves, are part of the State.”

The framers’ concerns about jury independence were not merely theoretical. The Supreme Court has recognized that jurors naturally look to the judge for guidance, and are easily swayed by the judge’s words and actions. The Court has stated that a judge’s “lightest word or intimation is received [by the jury] with deference, and may prove controlling.” Starr v. United States, 153 U.S. 614, 626 (1894).

Courts around the country have recognized that jurors search for the judge’s views, judges communicate their views (often unintentionally), and jurors perceive and follow the judge’s views. It is obvious that the risk of such unintentional influence increases when the judge and the juror are related, because jurors related to the judge will be much more likely to pick up on and understand the judge’s unintentional communication.

Finally, there is a risk of harm to the public perception of courts. Some segments of the population already believe (whether fairly or unfairly) that the court system is rigged and stacked against them.

That impression can only increase when a party critical of the judge can point to the added fact that a family member of the allegedly unfair judge served on the jury.

Wisconsin caselaw in Tody makes clear that certain close family members should be struck automatically from juries. A more difficult question is presented by more distant family members of the judge, or even the judge’s close friends or business associates. Judges confronting these situations will have to balance competing interests, but should do so with an awareness of the problems presented by empanelling jurors with relationships to the judge.

Byron Lichstein is deputy director of UW Law School’s Remington Center, a law-in-action program made up of several clinical projects dedicated to teaching, service and research. He serves as director of the Criminal Appeals Project and supervising attorney for the Wisconsin Innocence Project.

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