Last week I made my best video of 2024, which is great because it takes the pressure off for the next 11 and a half months. In that video, I mentioned at the end a little bit about our legal system and how it appears to discriminate against critical thinkers, quoting a professor of criminal justice named Jim Fisher:
“In the 1930’s, August Vollmer, John Wigmore, and others worked hard to get the expert into court. Seventy years later, judges should be throwing half of them out. In the (field) of scientific document examination, the graphologists are no longer at the gate, they’re in the courthouse. In America, everyone has a right to express their opinion, but not in court. If everyone is an expert, no one is.
Albert S. Osborn said it first, judges have to find a way to identify the phonies. But because these charlatans have become such clever impersonators, it’s not easy. They have created bogus diplomas, phony journals, fraudulent professional organizations and counterfeit resumes. They’re dug in, and it’s going to take extreme measures to blast them out. If judges don’t take responsibility for this task, little will change. Jurors are no longer capable of spotting the frauds. In fact, one way to avoid jury duty is to exhibit a rational mind and knowledge of science.”
I followed that up to say that that jibes with my recent experience being excused from a jury.
In the comments, a LOT of you were curious to know more about this: my experience in particular, and also the data on this as a potential systemic issue in our criminal justice system.
I actually sat down to record a telling of my own experience that day for my alt channel, but as I started it occurred to me that I was no longer quite sure that that IS what happened to me, nor was I sure that this is as common a problem as Fisher mentioned. After all, if lawyers actively avoid putting critical thinkers on juries, wouldn’t that result in an unfair system by definition? And while I DO think our justice system IS incredibly flawed in many ways, I’m NOT confident that juries are necessarily one of the worst problems.
So instead of an off-the-cuff video on the alt channel, I decided to do some research, challenge my own views, and share what I found with you here on main. But since I’m on the topic, if you do want to see more casual day to day videos and of course more videos of my dog Indy, you might wanna head over to Rebecca Versus and subscribe.
I’ve LONG heard grumblings from scientists, critical thinkers, and people who are really attached to their score on IQ tests, that they never get on juries because they’re too smart. Obviously, when I put it that way, you already know that I initially viewed these claims with, well, skepticism. It honestly came across as humble bragging: “I’m FAR too clever to be fooled by the rhetorical tricks of the average lawyer, so the second they even see me with my giant head full of brains, they send me straight home.” Sure, honey, sure.
Back then I was fairly nomadic so I had never made it far into jury selection. About eight years ago, I settled down here in the Bay Area, and since then I’ve had several more experiences with jury duty that started changing my mind. So let’s start with my anecdotal experience: first of all it was NOT, as I said in that last video, “recent.” In researching this video I went back through my journals and social media to figure out when my last jury duty call was and it was actually July to August 2022. More than a year ago. I seriously thought it was in 2023. Time? What is it? Is it real? Putting a pin in that for a future video.
So back in 2022 I received a notice that I was officially on the hook for Jury Duty. The way it worked was that the night before I was supposed to report, I could go online and see if they needed me. A few times in the past I’ve gotten off the hook at that point, because they call more people than they need and often they let whole groups go before they even need to turn up.
In this case I did have to report, so I went to the courthouse and sat in a room with dozens and dozens of other people, watched a little video about how important juries are, and then filled out a multi page questionnaire. I’ve done this a few times now and every time the questionnaire has been ridiculously stupid. Like, it’s a lot of standard information that makes sense, like “do you know anyone from this list of important people involved in this case,” “what’s your job,” “what’s your education level,” stuff like that. But then there are gems, like my favorite question this round, which asked “Have you, your immediate family or close friends ever had a good or bad interaction with a police officer? Please describe each encounter.” Like, what? Yes! I live in the United States! Literally everyone I know has had an experience with a police officer. Most of them “bad.” How much time do you have?
Anyway, after handing in the questionnaire I went home, and had to come back the next day for what’s known as “voir dire.” Twelve jurors were called randomly to sit in a jury box while the other few dozen of us sat in the courtroom seats. The judge kicked things off by going through everyone who had submitted a request to be excused from jury duty for a number of reasons. This was a fascinating mix of people with genuine excuses, like someone who would lose too much income, someone who’s the sole caretaker of a baby or an elderly parent, someone whose English wasn’t up to snuff, things like that.
And then there were the people who just desperately did NOT want to be there, like a guy who argued that he was WAY too racist against white people to be impartial. I’m serious, that’s what he said. And the judge spent, I shit you not, a good 15 minutes arguing with him. Like, “Sure, we all hate white people a little bit at least, but surely you can put that aside for this case?” “No your honor, absolutely not, white people have set up this entire system to oppress my people,” which, hey, fair enough. I was more annoyed with the judge for wasting everyone’s time going back and forth with this guy but I guess the point was to let everyone else know that if you want to get out of jury duty you’re going to have to work for it.
The judge also went through and called out anyone who hadn’t answered questions on the initial survey, or who had written something unclear. For instance, one question asked whether we were prepared to convict regardless of sentencing, and I had honestly written “no.” The judge asked me to elaborate and I said that I would never vote to convict someone if the sentence was death. He said “well this isn’t a death penalty case,” which I knew because California has a moratorium on the death penalty but I’m honest to a fault. So the judge determined I could stay. He also asked me to expand upon my job, because that was confusing, so I explained that I make videos on YouTube based on science and critical thinking.
The attorneys also got to ask us some questions, I think to still root out anyone who could be dismissed “with cause.” For instance, the defense counsel asked if we all agreed that a person was innocent until proven guilty. A few people said “no” and were genuinely shocked to learn that this is a foundational tenet of our justice system. One woman insisted for at least 10 minutes that anyone who is on trial must be guilty of SOMETHING because why else would they be there?
The prosecutor asked us all if we would agree to vote “guilty” even if we didn’t feel that the law in question was fair or legitimate. This time EVERYONE nodded their heads yes. Except for me. This time it was my turn to be shocked, first to realize I was the only one saying no and second that I had gotten this answer “wrong,” according to the prosecutor. He singled me out and patiently explained that it’s the jury’s job only to find the facts and determine whether or not a person is guilty or not guilty of a certain crime, not to determine whether or not the “crime” should be a “crime.” Then he asked me again: would I convict someone of a crime I didn’t believe was a crime? They handed me a microphone and I said, “No. I may be wrong, please correct me if so, but it’s my understanding that it is my right as a member of a jury to return whatever vote I feel is fair, regardless of what the evidence shows. For instance, if I lived in a state where abortion was illegal and I was on a jury for a case against a doctor who had definitely performed one, I personally would be morally obliged to vote not guilty and I believe that would be my right.”
I think that’s pretty much word for word, which I only remember because I was frantically trying to avoid saying the phrase “jury nullification,” the term that defines what I described: in the United States, juries have the right to vote not guilty even if they think guilt has been proven, because they feel the law is unfair or being unfairly applied in that case. I am not a lawyer but I do think I understand this concept correctly, and I think all jurors should know they have this right, but I’ve also heard that you can get in trouble for saying the words “jury nullification” in a courtroom or educating your fellow jurors about it. It seems super dystopian, but I’ve heard of judges finding people in contempt of court for doing things like that. So I was really walking on eggshells.
My problem was that this prosecutor, much like the judge with the anti white guy, would not give up. He asked me the question again but with slightly different vocab, and we stared at each other. I desperately did not want to be held in contempt of court, so I again spoke VERY carefully. I said something along the lines of, “I’ve described what I believe is my right and I gave you what I think is a clear example of why it would be important to me, but you’re the expert here. If I’m wrong and that is NOT my right I would of course change my mind but you haven’t told me I’m wrong, you just asked the same question again.”
At that point he looked really annoyed with me, and everyone was silent and it was awkward, so I added, “I understand this is a murder case and I don’t have any moral objection to a law against murder, sooooooo” and I guess that was good enough and he ended the questioning there. In retrospect, I think he was asking because the accused murderers (there were two) were planning a “self-defense” argument.
All that took a whole day, and so we had to come back the next day for the attorneys’ chance to dismiss jurors without cause. Basically, people are randomly called from the jury pool to be in the spotlight, and both the defense and the prosecution has the chance to question them and then decide if they’d like to dismiss them, which they can do for any reason besides some protected classes like their race. But it’s strategic, see, because they only get a certain number of dismissals.
So over the course of a few hours, we sat there while people were called upon to explain their viewpoints. It was usually things like “You wrote in your questionnaire that you gave money to the police union last year. Would that bias you in favor of the police?” And then they’d say “no,” and so the prosecutor would say “we have no objections to this juror” and then the defense would move to excuse them anyway.
Every time the rare juror made it through this questioning, they took a seat on the final jury, and all the people who were hoping to avoid jury duty relaxed a little bit more.
There were maybe three or four jurors chosen by the time they called my name. I was sitting in the back of the courtroom with a book on my lap and by the time I gathered my things and stood up, the prosecutor announced that they would like to excuse me and thanks for my time. It was the first time all day that had happened, when they didn’t even wait for me to get to the front of the courtroom and say hello and answer a question or two. I probably looked like a deer in the headlights. The other potential jurors chuckled. I left.
So yeah part of me does walk away from that interaction thinking that I was excused for being too informed AND too honest. Jury nullification is an important concept for Americans to understand, because it does give the average person the power to disrupt unjust laws. Yes, YOU can let that abortion doctor in Texas go free. YOU can free the guy who murdered the priest who molested him 20 years ago. YOU can help the kid caught with a bag of cannabis avoid the school to prison pipeline.
There are prison abolitionists and other activists who support jury nullification in all cases simply because the justice system is so screwed up and biased, and they suggest people hide their views and their knowledge specifically to get on juries and nullify them. I am not one of those people. While I know the game is rigged, that our police are corrupt, that our district attorneys are flawed, and that our prisons generally fail to rehabilitate the people we put in them and in fact often release those people in a worse situation than when they went in, I still think there are times when a grievous crime has been committed, the correct person has been arrested, and that person deserves to be held accountable in some way.
But from a prosecutor’s standpoint, why bother with a woman who is overall statistically less likely to vote to convict, when there are a few dozen people left who nodded their heads like sheep when he asked them a leading question implying the answer was yes?
So yeah, I’m not surprised he sent me home, and I do think it was maybe due to my open embrace of knowledge and critical thinking, which go hand in hand with my progressive ideology, which is also something a prosecutor doesn’t necessarily want on a jury.
All that said, my experience is just one data point, and it’s heavily biased. I’m not inside that prosecutor’s head. And even if I was dismissed for that reason, it doesn’t mean that’s happening every day in every courtroom across the country. So I decided to check the literature.
I have to say that it was extremely hard to find studies on potential discrimination against, um, rational people in jury selection, for two reasons. The first reason is because most research on jury discrimination involves race and gender, because that is absolutely 100% without a doubt a real problem with our justice system, in the past and even today. Historically, men have rigged the system to prioritize white men: slaves were property and could not serve on juries, freed black men were banned from juries in most states, and even after the Civil Rights Act was passed in 1875 juries still magically came out looking extremely white and male. Back then, serving on a jury was considered as important a right as voting: a constitutionally protected way for the average person to actively influence their society, so obviously marginalized people were prevented from participating at all costs.
Law after law after Supreme Court opinion would attempt to change this, but of course the system would just adjust subtly to allow discrimination to continue because it was thought that women in general and Black people in general would be less likely to convict someone of a crime. Just last year, researchers created an algorithm to examine 26,000 questions lawyers and judges posed to jurors in 17 capital murder cases in South Carolina, finding stark differences in the questions that prosecutors posed to White men and those posed to women and Black people. As a press release for the study described:
“The analysis showed significant differences in the length, complexity and sentiment of the questions prosecutors asked of Black potential jurors compared to white ones, indicating they were likely attempting to shape their responses. The questions asked by judges and the defense showed no such racial differences.
The study also found evidence that prosecutors had attempted to disqualify Black individuals by using their views on the death penalty. Prosecutors asked Black potential jurors – especially those who were ultimately excused from serving – more explicit and graphic questions about execution methods compared to white potential jurors.
In six of the 17 cases analyzed in the study, a judge had later ruled that the prosecutor illegally removed potential jurors on the basis of race. By looking at the combined NLP analyses for each case, the researchers could successfully distinguish between cases that violated Batson vs. Kentucky, and ones that hadn’t.”
As always, links are in the transcript on my Patreon, linked below in the doobly do, if you’d like to learn more.
But once I got past the hundreds of studies documenting discrimination based on race and sex, I was still at a loss for how to even define “critical thinking.” In the end, I was forced to go with a slightly problematic stand-in: education. Obviously there are grade school dropouts with sharper critical thinking skills than Harvard post-grads, but research does suggest that students’ critical thinking skills improve throughout college and also it’s fair to assume that lawyers (particularly prosecutors) might associate education with rational thinking AND that they might be equally discriminatory to both education and demonstrated critical thinking skills.
With that in mind, there was a study published in 2006 that sought to finally put to the test the “conventional wisdom” that said that juries end up composed of mostly people of lesser intelligence. The researchers examined trials in the state of Connecticut and looked at the education of jurors and potential jurors, finding that there was no evidence that more educated people were being excused at a higher rate. In fact, they found that overall, juries in Connecticut tended to be more educated than the average citizen.
In 2017, another group of researchers combed through about 1300 survey respondents in Texas to note differences between people who had and who had not served on a jury. They found that “those who believe in the importance of speaking English, are less compassionate, support Biblical literalism, and express more concern about the community effects of wrongdoing are more likely to have been former jurors than to not have served. Death penalty support is also modestly predictive of jury membership. Non-jurors rate their neighborhoods as cleaner than do former jurors. Results point to composition effects in the summonsing process and to the possibility that some types of people exempt themselves from this civic obligation.”
So in Texas, at least, it seems that being a progressive critical thinker makes you less likely to serve on a jury, but of course that doesn’t tell us whether prosecutors are weeding these people out or if those people are just more successful at getting out of jury duty (considering it’s a thing that most people seem to want to avoid).
The research on this topic is, overall, pretty rare and hardly comprehensive or conclusive. But after reading through all this, I was starting to feel that any “discrimination” against educated or rational people in jury selection just isn’t a big deal if it’s a real thing at all. My experience could probably be better explained by my gender, or my suspected ideology, than my knowledge or critical thinking. Right?
After the studies, I started reading opinion pieces by legal experts, like this 2010 post from Alison K. Bennett, M.S., titled “Do We Need Einsteins in the Jury Box? The Role and Impact of Juror IQ.” I found this while searching for problematic stand-ins for “critical thinking,” and BOY is it problematic!
Bennett points out that “low IQ” jurors DO likely benefit prosecutors because they’re more likely to just believe whatever the authority figure tells them, and they’re also more swayed by arguments from emotion, like fear and anger.
She then presents a really interesting case study. In 2001, the Holy Land Foundation (HLF) was the largest Muslim charity in the United States, raising money and sending it to Palestine for “widows, orphans, the homeless, and ‘families of martyrs,’” as well as aiding deported Hamas activists in 1992, before Hamas was considered a terrorist organization. But after 9/11, the US decided that HLF was itself a terrorist organization and seized all its assets and shut it down.
In 2007, HLF and five of its members went on trial for “197 counts of supporting terrorism, money laundering, conspiracy, and tax fraud,” and that jury acquitted one member but was unable to decide about the others, resulting in a mistrial. One juror reported that “The whole case was based on assumptions that were based on suspicions. If they had been a Christian or Jewish group, I don’t think [prosecutors] would have brought charges against them.”
The judge threw out the one acquittal and all five were tried again the following year. This time, all five were convicted on all counts.
Bennet says that she observed these trials and noticed that in the second trial, “In the first trial, a number of hardship releases were granted to lesser educated jurors who had fewer resources to sustain them over the projected length of the trial. This left a panel of more highly educated jurors available for jury selection. However, in the second trial, there were virtually no releases for hardship, despite several jurors’ pleas that jury service for the lengthy trial would force them into bankruptcy. This left the panel with a much higher number of less-educated (and anxiety-ridden) jurors than were available for jury selection in the first trial.
“Additionally, the prosecution team, under significant pressure to succeed at the retrial, brought in a trial consultant and changed their jury selection strategy to target the better educated, more articulate and arguably more intelligent jurors for release.”
So, when I first read this I thought, “How does she know all this?” And then I scrolled back up to her bio and saw that she, herself, was a “trial consultant” who worked for a company that observed trials and advised clients on strategy related to things like jury selection. Much like the unnamed consultant in her story did. The one who taught the prosecutors how to kick smarter people off the jury so that they were left with poor scared stupid racists so the Muslims could be convicted.
Bennett goes on to describe ways lawyers can tell who has a low IQ in their jury pool, like including questions about education on that initial questionnaire and including open-ended questions that require critical thinking. Also, check to see if the juror brought any reading material, that’s a good one.
Oh and also “personal hygiene, or lack thereof, could be an indicator of low IQ or mental health. On a light note, mouth-breathing is usually a dead give-away for low IQ, absent physical illness.”
I found all this so completely bonkers that I looked for other articles Bennett had written, and it didn’t disappoint because she also offered this helpful advice for lawyers on how to work with Millennial jurors because “You can’t bump every 25-year-old off the jury.” But you know you want to!
“To build rapport and credibility with Millennials during a trial, you need to understand them. Their world has always included AIDS, a unified Germany, answering machines and remote controls.”
Hope that helps. Just picturing the prosecutor really targeting those Millennial jurors during opening statements: “I still remember when my mom left me a message on my answering machine to tell me that my uncle has AIDS. The shock I felt is not dissimilar from the shock felt by Officer Truman when he found that bag of cocaine in the suspect’s glove box.”
Anyway, while the (small amount) of research out there suggests that discriminating against educated or rational people is not a systemic problem, here is at least one example of a legal consultant who was actively encouraging her clients to do exactly that, and claiming that it works.
Having hit that unsatisfying end, I finally decided to do one last desperate thing: I asked a lawyer I trust for his own perspective. Ken White, aka “Popehat,” is NOT my lawyer but I do value his commentary online and he has helped me find legal aid in the past. I asked him if he thought there was systemic anti-intellectual discrimination in jury selection, and/or he has seen this used as a strategy. His response was pretty direct:
“Yes, attorneys absolutely seek out to keep, or reject, critical thinkers, depending on the type of case. I don’t think it’s “systemic,” in that the system doesn’t enforce or demand it like racism. It’s more strategic by lawyers, some more than others, relevant to some types of cases more than others.
“You’d want a scientist or critical thinker if you were the defense and wanted skepticism about claims, for instance. You WOULDN’T want them if you wanted emotion.”
There you have it: it’s not just in our imagination. There needs to be more a LOT more research to figure out exactly how widespread this is, and if it’s a problem that needs addressing considering that it would mean prosecutors are exploiting juror ignorance to win criminal convictions. While reading up on all of this I learned that the Founding Fathers intended jury duty to be an active role of thought and investigation, but over the years the laws and customs have been massaged to turn jurors into passive blank slates who can’t even have basic knowledge about a case before it begins, as opposed to the original intent of barring those who have familial or financial ties to the outcome. It’s all given me a lot to think about, including how exactly I will handle my next juror questionnaire. I’ll never lie about my education, values, or understanding of concepts like jury nullification, but maybe there’s an ethical way to ensure a prosecutor can’t unduly remove my right to serve on a jury. Like, by being less of a loudmouth know-it-all. Adding that one to my New Year’s resolutions. We’ll see if it takes.