Robbins comments that
Prosecutors sometimes use what are known as “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists to defense counsel? These questions have largely gone unnoticed by legal analysts.
This Article addresses the prosecutor’s duty to disclose bad-juror lists. It reviews the federal Freedom of Information Act, a variety of state open-records acts and their exemptions, the work-product doctrine, the fundamental-fairness doctrine, and the discriminatory use of peremptory challenges (particularly in death-penalty cases). The Article concludes by advancing recommendations for overcoming disclosure exemptions and preserving the integrity of jury selection in the face of the continued use of bad-juror lists.
The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers — the rights of potential jurors, the rights of the defendant, the reliability of the outcome of the proceedings, and the appearance of justice.Robbins concludes -
Prosecutors sometimes use “bad juror” lists to exclude particular citizens from jury service. Not only does this practice interfere with an open and fair jury-selection process, thus implicating a defendant’s right to be tried by a jury of his or her peers, but it also violates potential jurors’ rights to serve in this important capacity. But who is on these lists? And is a prosecutor required to disclose the lists themselves?
The ambiguity of states’ open-records laws, coupled with the judicial discretion regarding the level of injustice a defendant must establish to overcome the work-product doctrine, has led to inconsistency in the disclosure of prosecutors’ bad-juror lists. Although the legislative intent behind most state open-records acts follows that of the federal Freedom of Information Act in promoting government transparency, the discretion used by some states to enact numerous exemptions to disclosure and interpret those exemptions broadly contravenes this purpose and thus dilutes public access to information. Texas’s deviation from the narrow construction that other states — such as Georgia, Alabama, and Colorado — have given to exemptions clearly disfavors disclosure of information in prosecutorial matters and conflicts with this purpose of public openness. While this disparity can partially be explained by the selective interpretation of available precedent in Texas, the statute’s ambiguity lends itself to this manipulation. A better approach is for states to model their open-records acts on FOIA to maintain consistency and to preserve the public interest in the freedom of information.
Moreover, states are often too strict in their adherence to the workproduct doctrine to shield bad-juror lists from defense counsel. Courts have held that prosecutors’ jury dossiers should be disclosed to defense counsel when the defendant has made a sufficient showing of necessity or injustice. The magnitude of discretion invested with the trial judge, however, makes it difficult to find reversible error solely on the basis of the judge’s failure to accept a defendant’s fundamental-fairness argument to disclose the bad-juror list. In addition, courts have typically mandated disclosure of these records only when the police department compiled the records or when the prosecutor used the records to refresh his or her memory in relation to a Batson v. Kentucky hearing. Defendants deserve the same treatment when the prosecution compiles its own badjuror list and subsequently uses the list during the voir dire process. Further, courts should rule that there is a presumption in favor of public disclosure of prosecutors’ bad-juror lists when the prosecutor uses these lists to aid in exercising peremptory challenges during the voir dire process. It is fundamentally unfair for defense counsel to be denied access to this information where the defendant lacks the resources to obtain the same information. To disclose these lists to defense counsel would allow the defendant the same opportunity as the prosecutor to exercise peremptory challenges intelligently. Requiring disclosure of these lists to the defense would also enable the defendant to more appropriately assert Batson challenges when it appears that the prosecutor is striking jurors for unconstitutional reasons.
The judicial system in the United States is adversarial. Particularly in criminal cases, when prosecutors, who already hold enormous power, are permitted to put their thumbs on the scale of justice during jury selection, the entire system suffers - the rights of potential jurors, the rights of the defendant, the integrity of the outcome of the proceedings, and the appearance of justice.
