Peer Review: Navigating Uncertainty in the United States Jury System
6 UC Irvine Law Review 169 (2016)
40 Pages Posted: 30 Jul 2018 Last revised: 14 Oct 2020
Date Written: 2016
This Article examines American prosecutors’ approaches to uncertainty during voir dire. At different points during trial preparation— and during jury selection itself—lawyers draw on multiple interpretive systems to make sense of ordinary citizens. Taking Assistant United States Attorneys in a federal jurisdiction in the Northeast United States as a case study, and drawing on ethnographic research, I focus on three systems prosecutors alternately (and sometimes simultaneously) use to evaluate jurors: (1) probabilistic and evaluative analogies, (2) juror-types generated from the details of criminal cases, and (3) local knowledge stemming from prosecutors’ relationships and experiences outside of the courtroom. I show how each interpretive approach renders an inherently unpredictable process (voir dire) and unknown people (prospective jurors) intelligible. I conclude by underscoring the value of ethnographic research to studies of prosecutorial strategy and the legal profession.
Keywords: juries, trial strategy, legal profession, prosecutorial ethics, lay participation, jury trial, criminal justice, criminal law
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