The Stealth Juror
A stealth juror is a prospective juror who attempts to make it onto a jury in hopes of attaining a pre-determined outcome in the deliberation. More often than not this juror will say very little during voir dire to try and fly under the radar, or if they do speak, will tailor responses to convey they could be an entirely fair and impartial juror. There are some misconceptions about what it means to be a stealth juror. Occasionally someone wants to be on the jury because they feel it is their civic duty and/or they have the time and ability to serve or have nothing better to do. I see a lot of this when retirees make up much of the jury pool. This juror does not have an agenda or any type of ax to grind but just wants to be part of the process. Maybe they served before and enjoyed it or perhaps they have never served and are merely curious. This type of juror isn’t interested in sending a message with a verdict or making any kind of statement.
While many try and get excused for financial hardship, a non-refundable trip, upcoming surgery, or a strong bias in one direction or another, someone wanting to be on the jury typically talks about how they would be happy to serve, have no problems with serving, and do not have any experiences or biases that would prevent them from being entirely fair. Sounds good right? This juror tells the court and all parties involved pretty much everything they want to hear. This potential juror makes lawyers and judges uneasy given the purported interest to serve. In many cases all parties agree to let someone like this go, while other jurors who do not want to be on the jury are oftentimes empaneled. Since it can be hard to know exactly what motivates someone to want to be on a jury it isn’t worth the risk of seating a juror who really wants on.
Some potential jurors have a selfish motive for serving on a jury and believe that after being on a jury they will cash in by writing a book, giving interviews, or some other form of “tell all.” This type of juror shows up mostly during high profile cases where after a verdict is rendered there is likely significant attention to the verdict and a bright spotlight on the jury members. Several stealth jurors were allegedly untruthful in the murder trial of Scott Peterson. Remember he was convicted of first-degree murder of his pregnant wife Laci Peterson and sentenced to death by lethal injection (his case is currently on appeal). Three jurors allegedly lied to get on the jury and his attorneys argued they were publicity hungry and had aspirations of working their jury service into a book. Some jurors who have served in prominent cases have gone on to write books which their first amendment rights enable them to do. An interesting study and perhaps a topic for a future blog would be whether the type of juror who wants to “cash in” feels that in a criminal case a conviction or an acquittal would lead to a greater financial benefit following the trial.
The most worrisome juror is the “stealth” juror in the true sense of the word – they are motivated by a hidden agenda and try to get picked (or really try not to get bumped) in order to influence the outcome. Jurors who lie during voir dire can be charged with contempt of court or obstruction of justice. But sometimes a juror doesn’t have to flat out lie to get on a jury. If the lawyers and Judge do not ask the right questions that get at the specific bias at play, a stealth juror can make it on the jury without lying under oath.
As an aside, similar to what we saw in the Vanderbilt football rape case, prospective jurors sometimes try to be as honest and diligent as possible but social media searches or thorough background checks reveal additional information not provided during voir dire. In the Vanderbilt case, two ex-football players were convicted of multiple counts of aggravated rape and sexual battery after a jury took just 2 hours to reach a verdict. After the verdict it was revealed that the jury foreman was once a victim of statutory rape, and this was not known to the parties at the time of jury selection. When the foreperson was 16 he had a consensual relationship with a 23 year old man. After this juror’s parents found out about it the man was charged with statutory rape. Prosecutors in this case insist the juror’s history did not ultimately affect the jury’s decision to convict. However, one report suggests this juror gave different answers during jury selection than he did at the mistrial hearing. The Judge said these inconsistent statements show this juror did not meet the standard required to be a fair and impartial juror.
Back to the stealth juror who harbors strong views, has an agenda and wants to make it on a jury to be able to influence the outcome. Who is this type of juror? It can involve any issue. Perhaps someone will tell the court in a capital murder case with the death penalty they could render a death sentence as part of the death-qualifying process but in reality are adamantly opposed to the death penalty and want to get on the jury to spare a life. Some jurors want to stick it to a corporation and will mask anti-company bias in order to serve in hopes of rendering a large damage amount. Same for cases when high-profile executives are accused of wrongdoing. The best way to identify this person is to look for any inconsistencies in their statements to the court or responses to questioning that seem almost too honest and compliant. In the age of social media red flags occur when an online persona doesn’t match what one sees with their own two eyes in court. Ask yourself whether a prospective juror’s “silence” seems incongruous with their demeanor, posture and overall non-verbal messaging.
Lawyers will second-guess the process to try and get a new trial if they are not satisfied with the result. After Martha Stewart was convicted of insider trading, a juror who gave several media interviews after the conviction was accused by Stewart’s lawyers of misconduct by lying to get on the jury. His statements to the media after the verdict proclaiming Stewart’s conviction as a “victory for the little guy who loses money in the markets because of these types of transactions” were used by the lawyers for the defendants to argue that the verdict was tainted by this juror’s alleged agenda to convict. Overall, there is significant gray area involved as prospective jurors are motivated by many different emotional, cognitive and experiential biases which they are often not even aware of. Can you think of a trial where you would like to be on the jury in order to help it arrive at a desired outcome?