Sex and the Jury

May 06, 1994|By ZICK RUBIN

BOSTON — At long last, trial began in the lawsuit brought by Joan Lee, a tiny Asian-American woman, against Lee Jones, a towering white man. The lawyers were about to pick the jury.

Joan leaned over to her lawyer and whispered, ''Let's get rid of those three guys in the back row. I don't think men can really

identify with what happened to me.''

The lawyer shook his head and whispered back. ''Can't do that. The Supreme Court just decided that archaic gender stereotypes offend our system of justice.''

''Well, then,'' Joan said, ''use one of our challenges on the blonde woman in the front row. I'd rather have more minorities on the jury.''

''I can't do that either,'' the lawyer responded. ''The Supreme Court also said that racial prejudice has no place in jury selection.''

''I thought we had the right to challenge three of the jurors for any reason at all,'' Joan protested.

''That was the old rule,'' the lawyer explained. ''the new rule seems to be that we can challenge three of the jurors for any reason at all, as long as it doesn't have anything to do with their race, sex, national origin, religion, age or astrological sign.''

The rules of jury selection have been dramatically changed by a series of well-meaning Supreme Court decisions that have been among the most psychologically obtuse in recent memory.

Until now, in a tradition that goes back hundreds of years, the plaintiff and defendant in a lawsuit each had the right to excuse from the jury a specified number of people whom he or she felt uneasy about. The idea behind such peremptory challenges -- for which no reason needs to be given -- was that no litigant should have to be judged by a jury of ''peers'' who he suspects will not judge him fairly.

Three years ago, the court decided that peremptory challenges based on race were unconstitutional in civil cases. Last month, in a case called J.E.B. v. T.B., the court took the same view of challenges based on sex. Sex-based challenges, Justice Harry A. Blackmun wrote, perpetuate ''invidious, archaic and overbroad stereotypes'' about men and women.

The rationale of the court's decision -- that sex-based challenges discriminate against members of the excluded sex -- ensures that attempts will be made to extend the holding to challenges based on other social categories. After all, it will be argued, if blacks and whites have a constitutional right not to be excluded pTC from juries on the basis of their race, and men and women have a constitutional right not to be excluded on the basis of their sex, it follows that Mexicans and Poles have the same right not to be excluded on the basis of their national origin and Baptists and Presbyterians have a constitutional right not to be excluded on the basis of their religion. And will the Equal Protection Clause be any less offended if a person is tossed off a jury simply because he is poor or disabled or a senior citizen?

In their noble resolve to stamp out discrimination, the justices lost sight of a fundamental principle of social perception. People's initial assessments of others whom they know little about are always based on stereotypes. Only by sorting people into categories can we begin to apply our past experience to our present decisions about people.

Of course, the stereotypes may be wrong. But they are better than nothing and, what may be just as important, these peremptory challenges allow the litigants to feel that they have at least some say about who their judges will be. To promote confidence in the jury system, plaintiffs and defendants must be able to play their hunches and even their prejudices, to bump off the types of people who they fear will not give them a fair shake.

What's more, although it is hard to predict individual jurors' reactions to the facts of a case, gender does matter. One's sex inevitably determines aspects of one's experience, and thus affects one's views of the world. Consider, for example, the gender gap in Americans' attitudes toward Lorena Bobbit: 57 percent of the women but only 31 percent of the men in a nationwideGallup poll agreed with the jury's not-guilty verdict. As Justice Sandra Day O'Connor observed, in a concurring opinion that advocated limiting the scope of the court's latest decision, ''Individuals are not expected to ignore as jurors what they know as men and women.''

Justice O'Connor went on to consider the implications of J.E.B. v. T.B., which was a paternity and child-support case, for a battered wife on trial for wounding her abusive husband. ''Will we, in the name of fighting gender discrimination,'' she asked, ''preclude her from using her peremptory challenges to ensure that the jury of her peers contains as many women members as possible? I assume we will, but I hope we will not.''

Back in the courtroom, Joan Lee made one last try. ''Can't you at least get rid of the huge fellow with the beard?'' she pleaded. ''He's the same suit size as Lee Jones.''

''Oh, come on, Joan,'' the lawyer said, with just the hint of a sneer. ''I'm an officer of the court. That's nothing but blatant heightism.''

''So whom CAN I challenge?'' Joan demanded, her whisper turning into a shout that could be heard across the courtroom.

''That's easy,'' her lawyer replied. ''You can't challenge the people you have a reason for challenging, since those reasons are all based on invidious stereotypes. But aren't there a few people sitting in the jury box whom you dislike for absolutely no reason at all? Those are the people we should be getting out of there. And as long as the challenge has no basis whatsoever, the Supreme Court can't stop us.''

Zick Rubin, teaches psychology at Brandeis University and practices law.

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