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Bound and Gagged: The Peculiar Predicament of Professional Jurors

Michael B. Mushlin

Pace University - School of Law


Yale Law & Policy Review, Vol. 25, 2007

Professionals are entering jury service as never before, thanks to a jury reform movement that swept the country in the 1990s and ended occupational exemptions for professionals. This beneficial development poses a new problem for courts: how to deal with an influx of professional jurors, whose own expertise will sometimes overlap with critical issues at trial. The current legal response to the entry of professional jurors is twofold: first, courts do not allow professionals to be challenged for cause based on their expertise alone, even if that expertise overlaps with issues in the case; and second, some courts--New York's being the most prominent--instruct professional jurors not to share their knowledge with fellow jurors. This article analyzes the law regarding professional jurors, presents the results of a survey of jury consultants, and recommends the law be changed so that challenges for cause based on expertise alone would be granted, and instructions that attempt to gag professional jurors would be eliminated. These changes would ensure that professional jurors are no longer "bound and gagged": bound to serve on juries in cases that implicate their areas of expertise, but prevented from serving fully and openly when they do take their seats as jurors.

Number of Pages in PDF File: 49

Keywords: courts, juries, criminal procedure

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Date posted: June 18, 2008 ; Last revised: April 1, 2009

Suggested Citation

Mushlin, Michael B., Bound and Gagged: The Peculiar Predicament of Professional Jurors (2007). Yale Law & Policy Review, Vol. 25, 2007. Available at SSRN: https://ssrn.com/abstract=1147084

Contact Information

Michael B. Mushlin (Contact Author)
Pace University - School of Law ( email )
78 North Broadway
White Plains, NY 10603
United States
914 422-4258 (Phone)
914 422-4168 (Fax)
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