Anne Reed at Deliberations posts about the very timely and significant issue of how the economy could impact the willingness of jurors to serve.  As the economy tanked, jurors thoughts were a little more focused on how service affected their own lives.

The selection practice in question wasn’t designed to exclude black jurors.  It was designed to help people.   When prospective jurors in Kent County Circuit Court said that they had transportation problems, child care concerns, or the inability to take time away from work, they usually got to go home, no questions asked.  If jurors gave awards to the nicest court, Kent County Circuit Court would get one. 

While it was awfully thoughtful of the court to take into consideration the troubling consequences of serving on a jury, it left a jury that was, well, somewhat bland in diversity.  No ill-intent involved.  Just the opposite in fact, but the result was the same.  Those who bear the most severe consequences of economic downturn have other things to do that are more important than making sure you get the jury you want.

But things have gotten worse since the jury selection in Smith v. Berguis, and it likely well past the point where child care concerns predominate.  People are scared to death of what will happen to them and their families, and they struggle to make sense of the mass confusion in Washington, Wall Street and the thousand pundit voices that tell a completely difference story every 30 seconds.

And so, in times of turmoil, we return to the work of Abraham Maslow, the Hierarchy of Needs.  When people are deeply concerned that they will be unable to put food on their table, heat their homes, keep their homes, drive to work (if they have a job), obtain medical treatment for their children, guess what they aren’t worried about: Justice.  You.  Your client.

Let’s put this another way, if people aren’t concerned about sexual intimacy, the third level of the hierarchy, your problems don’t even begin to enter the picture. 

Justice falls within the top category of Maslow’s hierarchy, self-actualization.  It is a higher order concern, the sort of thing one feels strongly about once one has the rest of the pyramid under control. 

While particular individuals, those whose basic needs are threatened by the outcome of the criminal justice system, will focus on what they perceive to be issues of justice, the rest of the world is busily trying to survive, and deeply concerned that they won’t.  They are worried about themselves first, and who wouldn’t be?

If there is any possible way to avoid going to a trial now, do it.  Aside from some particularly quirky moments in history that had significant impacts on jurors (like the OJ Simpson murder acquittal, for example), I can’t think of a worse time to ask a jury to elevate the concern of justice, fairness, due process, above their personal concerns.

Justice just doesn’t matter at the moment. Don’t expect your jury to think otherwise.  They have their own problems.

Update:  Bennett thinks that a better idea is to use this concept to fashion one’s argument to meet the juror’s needs, regardless of what level they may be:

When the government asks for “justice” it’s usually talking about safety. When a defense lawyer asks for “justice” she might be asking for fairness or due process or freedom — all of which are at first glance higher-order goals.

But when we talk about fairness and due process we can talk about security of morality (it would do violence to jurors’ sense of right and wrong to treat this man unfairly), and when we talk about freedom we can talk about security of everything else (because if you let the government take away this person’s freedom, your own freedom, and therefore the security of your family, property, employment, health, and resources is at risk).

I think he’s made a valient argument.  But I wouldn’t hang somebody else’s life on it.  While I agree with Mark that mistrust of government is part of the package of concern, I would not make the leap that mistrust of government means that jurors will feel more sympatico with the defendant. 

While we always try to appeal to the sensibilities of the jurors, that doesn’t mean that their primary concern isn’t getting out of that jury room and back to work.