Victims as Fact-Finders

Abstract

This article critiques the common practice of excluding crime victims from serving as jurors in criminal cases. Although systematic data on the voir dire process are hard to come by, both case research and empirical evidence suggest that judges routinely permit questioning of potential jurors regarding their victimization status, and that high percentages of both judges and attorneys consider victimization status a proper basis for exclusion.

The practice of victim-exclusion causes serious harms. Excluding victims undermines the jury’s legitimacy as an institution and sends corrosive social messages regarding the status of victims in our society. Nor are these harms offset by any increase in accuracy we might obtain by avoiding supposedly biased jurors. Rather, victims’ unfortunate experiences can sharpen their ability to delineate true from false accusations. Finally, there is no sound justification for assuming that victims’ degree of empathy for other victims is improper, relative to people who have not been victimized. Instead, victims’ participation should offset the troubling reluctance of people without such experiences to credit victims’ testimony and hold abusers to account.

Keywords: trials, juries, jury selection, voir dire, victims, peremptory strikes, Batson, credibility, legitimacy, stigma, discrimination