Persuasion Matters

All I needed to know I learned in kindergarten...words with an apple

I Have Something You Don’t Have (and the judge says it’s okay)

At the risk of aging myself, do you remember the poem published in 1989 called, “All I Really Need to Know I Learned in Kindergarten?”  The first rule was “Share Everything.”  The second rule was “Play Fair.”  Judge John Cleland, who is presiding over Jerry Sandusky’s criminal trial, recently examined both of these life rules in the context of jury selection and conducting Internet research on prospective jurors.

A few days ago, the defense attorney representing Sandusky– Joe Amendola– filed a motion with the court requesting that prosecutors be ordered to turn over any information it had discovered during its online research of prospective jurors.  He made no effort of his own to conduct research of the jury panel, but wanted copies of what the prosecution had done.  According to Mr. Amendola, it was “fundamentally unfair and a violation of his due process and equal protection rights” if the government used its “unlimited investigative, financial, and government resources” to gather additional background on jurors and failed to share that information with the defense.

The prosecution responded by stating that any research it conducted was protected by the attorney work product privilege, and therefore was not discoverable.

The court responded with a Memorandum and Order filed June 4, 2012 and carefully evaluated (a) whether the prosecution should have to share its work, and (b) if being in possession of more information on the jury than that of the defense was fundamentally fair.

Share Everything?  

The Court essentially agreed with the prosecution: the research was protected under the work product privilege.

Jury background information, at least to the extent the defense asserts it has been collected by the Commonwealth in this case, is subject to the work product privilege.  . . .  An attorney’s collection of jury background material clearly falls within the category of “work product” under Pennsylvania law.

Play Fair?  

The Court also examined the fundamental issue of fairness.

One must ask, therefore, whether it transcends due process to permit the prosecutor to develop juror information that a defendant cannot afford to produce on his own?

Its conclusion?  It was fair.

Each side in a trial rightfully attempts to select jurors it thinks will bring some unique perception, experience, or understanding to that side’s theory of the case, and hoping the juror will be helpful to it in some way.  Predicting, however, how any one person will vote in the jury room is far from an exact science, and, therefore, refusing to order the Commonwealth to share such information cannot be said to be fundamentally unfair.


As a jury consultant, I wholeheartedly agree with the Judge’s rulings.  However…

As much as I support the Court’s views regarding jury dynamics and power of the collective whole, I disagree with the Court’s implication that no information discovered by the prosecution could put the defense at an unfair disadvantage.  It’s fair and proper for one or both sides to conduct research on the jury panel, but the learned data can play an important role in a party’s challenges for cause or use of peremptory strikes.

In conducting the research, the prosecution has in many ways, assumed a great responsibility.  Should any information be discovered about a particular juror that– if known to all parties and the Court– would likely result in the juror being excused for cause, one could argue that the prosecution has an ethical duty to disclose that information… even if that means losing an ideal juror.  We can only trust all of the parties to play fair if a critical nugget needs to be shared in order to ensure that a proper panel is seated.

The prosecution certainly has more information on which to base its decisions, but at the end of the day I have to embrace the Court’s faith in the jury system.

Our system of justice depends on a jury composed of citizens who take an oath to “well and truly” try the matter before them.  As a society, we rely on our fellow citizens to reach a verdict based on the evidence presented in the courtroom.  While it may be theoretically helpful to have background information that might be used to predict how a particular juror might view the issues in a particular case, and then apply that knowledge to select jurors perceived to be favorable to one side or the other, the practical fact is that jurors are not automatons.

We should not lose sight of the fact that the social dynamic of the jury tends to subsume individual opinions into the collective analysis of the whole, thereby lessening the impact of any one juror and decreasing the importance of knowing with precision their individual backgrounds.  Indeed our faith in the jury system is predicated on that premise. . . .

…ultimately our society’s faith in the jury system rests on the sure confidence that the jury’s collective judgment is shaped by the deliberative process of sifting and sorting evidence that has been presented in a courtroom according to the longstanding law of evidence, and guided by the judge’s instructions about the application of the law.


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