Melanie Wilson, law professor and KU School of Law’s associate dean for academic affairs

A Kansas University law professor says personal questions asked in the jury selection process have led potential jurors to lie or withhold important information, undercutting an attempt to give the accused a fair trial.

“To date, the history tends to be it’s an unfortunate fact of life that we have to expose these people,” said Melanie Wilson, who is a former federal prosecutor in Georgia. “That’s just part of your civic duty. The focus tends to be that we need to do more to protect jurors, but we really can’t because the defendant’s rights are paramount.”

Wilson, who is also the KU School of Law’s associate dean for academic affairs, argues for changes to the jury selection process in an article that will appear in the Utah Law Review later this year. Less protection of jurors’ privacy does affect the rights of the accused as well, she said. For example, if potential jurors for a rape trial — out of embarrassment for mentioning it during questioning in front of a roomful of people — withhold information that a family member was a victim of a sexual assault, the case could become a mistrial or be overturned on appeal, creating the need for a new trial if the information is discovered or disclosed later. It can defeat the purpose of attorneys asking probing questions if jurors don’t tell the whole truth, she said.

Wilson said scholars are seeing juror dishonesty occurring in a growing number of cases, but she believes it’s mostly due to the fact most people are unaware of the consequences because they are not familiar with that part of the system. “The traditional thought has been maybe jurors have rights,” she said. “But we’re unclear where their rights start and end.”

Wilson suggests a main remedy could be a system where a prospective juror could essentially recuse himself or herself from jury selection in certain cases if they have a legitimate reason. That way the juror wouldn’t have to divulge potential personal information in front of the rest of the potential jurors or the judge, attorneys, defendant and court reporter. The jurors would then remain in the overall jury pool, so they could be called for a different case.

Wilson admits there would need to be a way for judges to be able to determine what is a legitimate excuse. “Judges are good at determining who is trying to avoid jury duty. I’m not sure it would be different,” she said. “What it would do is shift at least some right to the juror right now. They really don’t have any right to opt out. This way there would be some leeway.”

Douglas County District Attorney Charles Branson said that jurors can get grilled on some occasions during jury selection but that judges are often quick to intervene if they believe an attorney is going too far. “In most cases where we have to ask those very personal questions, we offer to the jurors that if they have something that they think is important they can always ask to meet privately with the judge and attorneys out of the presence of other jurors,” he said.

Wilson said because the Supreme Court has ruled the voir dire, or juror selection, process is part of the trial, a transcript of those questions would still be part of the court record and is available to the public and media.

Douglas County District Chief Judge Robert Fairchild said that is correct, although rare. “I have never known of an instance in which the answers of a juror excused for such a reason have been published outside of the appellate courts, but it could happen,” he said. Fairchild said Douglas County judges try to make sure jurors are treated with respect by everyone and they don’t allow an attorney to conduct questioning “in an offensive or abusive manner.”

He also said he has never had a sense that jurors lie about prior experiences out of concern for having to relate an embarrassing experience. “I think our judges tend to be pretty liberal in excusing jurors who have suffered traumatic experiences that are related to the subject matter of the trial without requiring detailed information about the incident,” he said.

Fairchild and Branson said a system that allows jurors to excuse themselves does bring up other issues. “In order to pass constitutional scrutiny the process cannot systematically exclude any portion of the population and potentially prejudice a defendant,” Fairchild said. “(Wilson) is correct that judges have a great deal of discretion in setting the manner in which voir dire is conducted. However, we are limited by the constraint that the Constitution requires that the selection process must result in a jury that is a cross-section of the community. We cannot intentionally exclude a specific group of individuals.”

But Wilson said under her proposal a judge is not excluding jurors, just overseeing the juror’s own strike. She argues that system would result in more qualified juries because it would give attorneys more of an opportunity to ask probing questions.”If jurors are lying to protect their privacy, then the balance is shifted,” Wilson said. “Then we’re not protecting Sixth Amendment rights. It is a constitutional flaw, if you will.”