49 Pages Posted: 18 Jun 2008 Last revised: 1 Apr 2009
Date Written: 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.
Keywords: courts, juries, criminal procedure
Suggested Citation: 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