processing the selection of an all-male jury

December 9, 2023 12:41 AM

I was summoned for jury duty for a criminal trial in California. (The charges are disturbing/potentially triggering but will be referenced inside.) I was in the third pool (ultimately dismissed without being interviewed), so five people from my group were selected to fill out the jury of 12 plus three alternates. Those 15 were sworn in and the rest of us were dismissed. All 15 people selected were men. Why?

The charges being brought against the accused were several counts of CSA against multiple victims. The accused was a man, his attorney was a man. Both prosecutors were women. The questions asked by counsel implied that the defendant would not testify, that there would be no physical evidence presented, and that witnesses/victims might be hostile/non-compliant.

During my time observing, both the prosecution and defense dismissed women from the jury pool. I think I saw one or two men dismissed and 5 or 6 women. But again, of the 10 confirmed jurors, all were men.

I understand there’s a lot of strategy that goes into jury selection, and the attorneys know a lot more about the information that’s going to unfold during the trial, but it felt very weird to have the jury so obviously skewed.

A quick search brings up articles about racial diversity in juries, and this was also a case of a predominantly white jury and a POC defendant (in an area with medium-low diversity but stacked with white retirees), but I’m much more alarmed by the lack of gender diversity.

Open to essays/articles/videos/anecdotes that will help me process and understand how this is a step toward justice.

posted by anonymous to Law & Government (13 answers total)

I sat on a jury for a domestic abuse case with similar facts (hostile witnesses, etc.).

We ended up with a hung jury. Despite clear facts, two women on the jury said they would not vote to convict because “if [the abused woman] did not want to protect herself, then they were not going to do it for her.”

I do not feel like we, as a jury, were able to provide justice that day.
posted by bruinfan at 2:08 AM on December 9, 2023 [4 favorites]

A very very long time ago I too sat on a domestic violence case jury and actually sat through the whole trial. Our final jury instructions came down to a very nuanced differences among threat, assault, and battery... Was the assault "intended" to hit, or just being scary? If it wasn't intended to hit, was it still assault? We ended up with NG verdict.

My personal guess with your case is going to sound very "stereotypical", as in "men are more logical, vs women are more emotional", and it's harder to predict an emotional response, whereas you can more reliably predict what men's going to do, while defense would have less chance to object about women not being the suspect's "peers".
posted by kschang at 2:57 AM on December 9, 2023

I cannot speak to the specifics of that case or how jury selection is conducted in California, but typically there are three reasons potential jurors are dismissed.

The court may dismiss potential jurors for hardship (how often this happens and when in the process it happens varies from court to court) - this can disproportionately remove women as they tend to be more likely to have caretaking obligations that conflict with jury service. The court, on its own or at the request of a party, also dismisses potential jurors when the court determines a potential juror is unable (or unlikely) to follow the court’s instructions and be fair and impartial.

Additionally, the parties typically each get what are called peremptory challenges that they can use without having to give a reason. The number varies somewhat between jurisdictions; a quick, unvetted Google tells me that California gives both sides ten peremptory challenges in criminal cases. Peremptory challenges give parties significant power to shape the final jury. Historically, there was no legal avenue to challenge how a party used their peremptory challenges.

In 1986 the Supreme Court decided Batson v. Kentucky and recognized that discriminatory use of peremptory challenges by prosecutors violated a defendant’s right to a fair trial. Batson involved racial bias, but now also applies to gender-based bias. Since then, there has been a procedure for challenging bias-motivated exercise of peremptories, but it is pretty rare to see a Batson challenge; the standard of proof is high, making it hard to prove that bias, rather than a permitted criteria, was the reason for the challenge.
posted by ElizaMain at 3:50 AM on December 9, 2023 [3 favorites]

I was just on a jury with a black defendant and there was only one black juror. When we had 13 jurors selected there was a young black potential juror who I thought would be put on jury, but told the judge the criminal justice system isn’t fair and he can’t trust anything. He was dismissed. A lot of other jurors were dismissed for work reason or because they had to take care of someone. This resulted in an almost all white jury with upper middle class professional jobs. Half of us lived in a two mile radius.

How did age factor into this? It could be older women: bad for prosecution. Younger women: bad for defense. Then the other side just strikes who they think will be bad for them, leaving them with just men. Were the women dismissed by one side or both?

Also don’t forget about incompetence. The prosecution had no qualms about me, a clearly liberal who worked in liberal politics being on a jury where the defendant was a nonviolent young black male being charged with a weak case.
posted by MisantropicPainforest at 4:28 AM on December 9, 2023

I was in a pool for an aggravated sexual assault trial in Austin a few years ago. The judge dismissed anyone with a history of sexual assault (themself or an immediate family member) and also anyone who couldn't vote to acquit on if it came down to the word of the accused vs the word of the victim. In a pool of 85, to get to 12 + 1 alternate, they got to pool member 82.

I think the two grounds mentioned, if disclosed, will disqualify a lot of women. (I was disqualified on the second one.)
posted by gentlyepigrams at 8:17 AM on December 9, 2023 [11 favorites]

I have read a lot of research on jury selection for a previous job, and for prosecutors the received wisdom on sexual assault trials was that women were more subject to the just-world theory (per bruinfan above), and would side against the victim. Whereas men on average were more likely to vote to convict, and men with daughters even more so.
posted by Hypatia at 8:26 AM on December 9, 2023 [2 favorites]

I was a bailiff in Arizona many years ago, and sat through a lot of jury selections. A couple of thoughts, with the caveat that this is very location-specific:

1) Aside from very high-profile case, where a written questionnaire was circulated, the number of questions you could ask jurors was pretty limited, so figuring out whether someone is prejudiced in a way that is detrimental to your case can be a matter of reading vibes and, well, stereotyping based on previous experience. One CSA prosecutor felt that older women tended towards victim-blaming and the average age of a juror in our county at the time was 65 years old. Some of the cases that she prosecuted had women jurors, but they were relatively younger--in their 40s or 50s.

2. I don't know how the process in your jurisdiction went, but in mine, the jurors were given numbers (generated randomly) and the process was to start with juror #1, see if there either side wants to strike. If nobody does, juror #1 is on the jury. Then see if anyone wants to strike juror #2, and so forth, until we had the 12 jurors plus a couple of alternates that we needed for the case. There was no sort of process of "let's pick the most diverse combination of jurors out of the pool," it was simply going down the list, and the vagaries of the list might mean that you'd end up with an all-male jury, even if neither side was intentionally trying for an all-male jury.

3. Potential jurors would not be in the courtroom when Batson challenges were made, so if the prosecutors had good reasons to strike some of the women in a jury pool, the potential jurors would not hear about it.
posted by creepygirl at 10:33 AM on December 9, 2023 [4 favorites]

This is a good article on selecting a jury for a sexual assault case. It does not directly answer the question of male vs. female but it explains the thinking that goes into the selection process.
posted by Tell Me No Lies at 2:13 PM on December 9, 2023

Prosecutor here. I doubt anyone was trying to form an all-male jury. Both the prosecution and the defense were presented with an ordered number of potential jurors, and they struck off the ones who had reason to be dismissed from the case or those that each party believed may have been harmful to their case. It just so happened that due to the ordered list of potential jurors and those that were struck, that an all-male jury was formed.
posted by TheLinenLenin at 4:35 PM on December 9, 2023 [4 favorites]

The defendant's right is to a jury of his peers. There is no defined victim's right to a sex-diverse jury for the trial of her alleged attacker.
posted by fingersandtoes at 5:26 PM on December 9, 2023

I'll also note that there is a huge difference between domestic violence/partner sexual assault partners and child sexual assault, the latter of which is what OP is asking about. There is folk wisdom the prosecution not wanting women (and women who saw domestic violence in the household) as jurors... but the logic behind that folk wisdom DOES NOT apply to child sexual assault cases.
posted by TheLinenLenin at 6:00 PM on December 9, 2023 [2 favorites]

The defendant's right is to a jury of his peers. There is no defined victim's right to a sex-diverse jury for the trial of her alleged attacker.

In the US this means impartial jurors taken from a cross-section of one's community. It does not mean that the jury should match one's gender.

It is interesting that you assumed the victims were all women, even though that wasn't mentioned.
posted by oneirodynia at 4:23 PM on December 10, 2023

It could have been a combination of the answers the women jurors gave to in-court questions that eliminated them (experience with sexual assault that made them feel they could not be fair or inability to apply the law as instructed for any reason) or answers to those questions or to the questionnaire that made them unappealing (but not struck for cause) as jurors that had the unintended effect of eliminating all the women. Sometimes the order of the jurors is random in a way that has fewer women to start with from the front end where jurors are most likely to be selected.

Having selected juries a few times, I can say that some choices have unintended consequences. I was inclined to knock out a particular religion because I thought it would be pro-government and had I done that, I would have eliminated most of the black jurors.

There is always incompetence as a potential explanation.
posted by *s at 11:58 AM on December 11, 2023