A very interesting, and very troubling, question comes out of this thoughtful post about jury duty for people with autism. When Anne Reed of Deliberations fame twitted the link, it struck me as curiosity. After reading the post, however, it scared me by driving home a point aimed at the very heart of having a jury decide the fate of a defendant.
The post describes the process of jury selection, and emphasizes the reasons why serving on a jury presents particular issues for people with an autism spectrum disorder. The author describes herself as “high-functioning autistic.” For anyone who doesn’t appreciate the significance of the description, it means that she’s a person of normal to high intelligence, fully capable of functioning in the world without overtly displaying autistic symptoms. Yet, still autistic, even if you can’t see it at first blush, or without a keen eye for the particular manifestations she displays.
In a more holistic sense, this is a person who can, and should, be entitled to enjoy a full and wonderful life like anyone, with certain small concessions needed to accommodate her autism. But is jury duty a part of that life?
The post describes the process of jury selection, and emphasizes the reasons why serving on a jury presents particular issues for people with an autism spectrum disorder. The author describes herself as “high-functioning autistic.” For anyone who doesn’t appreciate the significance of the description, it means that she’s a person of normal to high intelligence, fully capable of functioning in the world without overtly displaying autistic symptoms. Yet, still autistic, even if you can’t see it at first blush, or without a keen eye for the particular manifestations she displays.
In a more holistic sense, this is a person who can, and should, be entitled to enjoy a full and wonderful life like anyone, with certain small concessions needed to accommodate her autism. But is jury duty a part of that life?
So, being a high-functioning autistic, I was worried that I would not be let off, since I fit a lot of the criteria that judges might tend to like in a jury (at least, in my state). For starters, I work a state job, so I wouldn’t need to per diem pay that others would need since I would get full pay anyhow. I’m over 18, I have sufficient English comprehension, I’m a citizen, I’ve never been convicted of a felony, etc. So, I was worried the response from the judge would be “autism, what is this madness? GET BACK IN THE PEWS! You’re here, aren’t you? You have a pulse, don’t you?! YOU ARE TOTALLY FIT FOR THIS!!”
Would being a juror be something interesting? Sure, I personally think it would have been cool to serve on a jury. But not at the cost of misconstruing the wrong verdict. I, along with, I’m certsin, other people on the spectrum, have a myriad of problems, and in a trial setting it can become glaringly obvious. My own main issues include a difficulty in comparing nuances and social cues, as well as paying attention without my mind wandering off to other completely unrelated subjects (such as anime…), both of which impede on the function of a juror, which is to be an unbiased decider of the verdict. Or, me just wanting to not be sitting in the courtroom for whatever reason might compel me to leave (yes, I still have problems sitting still and will still rock in my chair, albeit rarely). I’d very likely have trouble discerning truth from fiction and would be a not-so-great or even disruptive juror.
I admire her frank recognition of her strengths and weaknesses. The problem, as noted, is that the weaknesses, the difficulty with non-verbal communication, difficulty processing figurative speech, distractability, are beneath the surface. She knows this about herself, but there’s a very good chance that it would never be notable during voir dire.
To her credit, she emphasizes throughout her discussion the need to tell the court and attorneys of her condition, although her purpose in doing so is less to inform them of a gap in her qualifications to sit than to be a self-advocate for her needs and accommodations. Self-advocacy is an important aspect of dealing with autism; Unfortunately, it’s as much to serve her needs as fairness to the defendant.
Secondarily, while the author appears to have a firm understanding of her own issues and deficits, it’s similarly problematic that many high-functioning autistics will view themselves as more capable than they truly are. Self-assessment is not merely unreliable, but to a person who has spent a great deal of their effort in overcoming challenges, the belief in their ability to do whatever they want to do is a strong incentive to deny their limitations. It may be critical to success in some ways, but it may well cloud their self-image of their capacity to serve as a juror.
To her credit, she emphasizes throughout her discussion the need to tell the court and attorneys of her condition, although her purpose in doing so is less to inform them of a gap in her qualifications to sit than to be a self-advocate for her needs and accommodations. Self-advocacy is an important aspect of dealing with autism; Unfortunately, it’s as much to serve her needs as fairness to the defendant.
Secondarily, while the author appears to have a firm understanding of her own issues and deficits, it’s similarly problematic that many high-functioning autistics will view themselves as more capable than they truly are. Self-assessment is not merely unreliable, but to a person who has spent a great deal of their effort in overcoming challenges, the belief in their ability to do whatever they want to do is a strong incentive to deny their limitations. It may be critical to success in some ways, but it may well cloud their self-image of their capacity to serve as a juror.
This isn’t to say someone who really, really wants to be on a jury regardless of their disability can’t or won’t be (though, again, it is best if you tell the judge so that they and counsel at least know about your condition). Chances are, you may or may not be picked, since in many states the counsel for either the defendant or plaintiff can ask for a juror to be dismissed without having to give a reason. And since most trials only need 12 jurors not everyone is going to be selected. But, if you ultimately are on a jury…
Therein lies the problem. While avoiding jury duty is nearly a national pastime, some people want to serve, seeing it as a fascinating opportunity to participate in an important civic experience. It’s wonderful that they feel this way, but it similarly lends a reason to minimize the problems they might face in fulfilling their obligation.
The typical question asked, even if a potential juror was to approach to tell the court and lawyers that they are a high-functioning autistic, is whether that will impair their ability to serve. If the person wants to be a juror, the answer will likely be “no, it won’t.” Holding a person’s life in your hands isn’t a game, a fun way to spend a few days for those who want to play. We don’t try cases so that jurors can enjoy the experience.
As a long-time supporter (well before it became fashionable) of people with an autism spectrum disorder and cognitive challenges, and one who has spent an enormous amount of time and energy trying to get others to recognize that these are human beings, entitled to enjoy and participate in everything life has to offer, it’s difficult to find myself on this conceptual ledge, a place where I’m forced to conclude that autistics shouldn’t go. But their right to a wonderful life must give way to a defendant’s right to be judged by a jury without any impediment to fair and sound verdict.
Granted, there are any number of other impediments that stand in the way of non-autistics serving on a jury, and I don’t mean to suggest that autistics alone should be precluded from jury duty. Rather, anyone who, for whatever reason, is unable to sit as a juror, with the ability to understand and process the proceedings, sit for whatever length of time is required without distraction, whether because the kids are coming home from school and there’s no one to let them in or because they lack the ability focus for prolonged periods, shouldn’t be jurors. People who take medication that makes them drowsy, impairs their cognitive ability, or alters their perceptions, shouldn’t be jurors. And, given the nature of autistic spectrum disorder, people who are autistic shouldn’t be jurors.
While people with autism should be able to do almost anything that anyone else can do, consistent with their functional abilities, serving as a juror just isn’t one of them. In the balance of rights, the defendant’s must prevail.
Update: I anticipated, when I published this post, that it would be controversial, and bring people out of the woodwork who had strong feelings on the subject. One, an anonymous commenter below who calls himself keith, wants to fight all day until he wins the battle. His point was made, and it’s not a point that is worthy of that much space or effort. It’s rather simplistic and replete with false assumptions.
But another comment, made on twitter by Jason Wilson, is more problematic:
The typical question asked, even if a potential juror was to approach to tell the court and lawyers that they are a high-functioning autistic, is whether that will impair their ability to serve. If the person wants to be a juror, the answer will likely be “no, it won’t.” Holding a person’s life in your hands isn’t a game, a fun way to spend a few days for those who want to play. We don’t try cases so that jurors can enjoy the experience.
As a long-time supporter (well before it became fashionable) of people with an autism spectrum disorder and cognitive challenges, and one who has spent an enormous amount of time and energy trying to get others to recognize that these are human beings, entitled to enjoy and participate in everything life has to offer, it’s difficult to find myself on this conceptual ledge, a place where I’m forced to conclude that autistics shouldn’t go. But their right to a wonderful life must give way to a defendant’s right to be judged by a jury without any impediment to fair and sound verdict.
Granted, there are any number of other impediments that stand in the way of non-autistics serving on a jury, and I don’t mean to suggest that autistics alone should be precluded from jury duty. Rather, anyone who, for whatever reason, is unable to sit as a juror, with the ability to understand and process the proceedings, sit for whatever length of time is required without distraction, whether because the kids are coming home from school and there’s no one to let them in or because they lack the ability focus for prolonged periods, shouldn’t be jurors. People who take medication that makes them drowsy, impairs their cognitive ability, or alters their perceptions, shouldn’t be jurors. And, given the nature of autistic spectrum disorder, people who are autistic shouldn’t be jurors.
While people with autism should be able to do almost anything that anyone else can do, consistent with their functional abilities, serving as a juror just isn’t one of them. In the balance of rights, the defendant’s must prevail.
Update: I anticipated, when I published this post, that it would be controversial, and bring people out of the woodwork who had strong feelings on the subject. One, an anonymous commenter below who calls himself keith, wants to fight all day until he wins the battle. His point was made, and it’s not a point that is worthy of that much space or effort. It’s rather simplistic and replete with false assumptions.
But another comment, made on twitter by Jason Wilson, is more problematic:
Thx to @ScottGreenfield for reminding us that Autistics & retards should not serve on a jury. Super.
Aside from his attributing to me the use of the word “retards”, which reduces Wilson to an irresponsible liar, this is the sort of reaction that makes it impossible to discuss controversial subjects. He’s about it, where it becomes clearer that his comprehension is clouded by the fact that he’s the father of an autistic child. This is precisely why it’s important to discuss controversial subjects like this. Much like the crime victim’s view of prosecution is clouded by their personal rage, Wilson’s understanding of the law is clouded by his self-interest in his child.
As a father of an autistic child, I understand intimately the difficulties they face day in and day out. It’s a struggle, and they become very aware of their differences. Painfully aware. Which is why I applaud this post. If you’re AS, it’s these kinds of instructions that help you better cope with the world around you. Anyone who has a child on the spectrum or works with them understands this and understands that it works.
In the end, you should ask yourself whether you want someone who constantly assesses themselves in relation to the world around them, tries to do his or her best, and would like to serve on a jury, or someone who possesses strong “functional abilities” but doesn’t give a shit. Mr. Greenfield seems to prefer the latter.
Actually Jason, most realize that they aren’t mutually exclusive.
Regardless of how sensitive this might be to Jason Wilson, however, his attribution of retard demonstrates both a monumental flaw in his understanding, and a wholesale loss of crediblity. I’m sorry that this has touched a nerve with Jason Wilson, but that doesn’t give him leave to false attribute words to me. And it doesn’t mean that no one should be allowed to discuss his sacred cow.
Update 2: Jason Wilson has since apologized for the “implied attribution,” which I appreciate.
Regardless of how sensitive this might be to Jason Wilson, however, his attribution of retard demonstrates both a monumental flaw in his understanding, and a wholesale loss of crediblity. I’m sorry that this has touched a nerve with Jason Wilson, but that doesn’t give him leave to false attribute words to me. And it doesn’t mean that no one should be allowed to discuss his sacred cow.
Update 2: Jason Wilson has since apologized for the “implied attribution,” which I appreciate.
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I disagree. For autistics read anyone because everyone is autistic to a degree. Also if you want people capable of weighing up evidence without getting emotionally involved, autistics may be your best bet. I’ve known maybe three people who seemed fully sane, two turned out to be sociopaths. Every jury member is an animal with delusions, don’t kid yourself otherwise. I haven’t sat on a jury but I can tell you what happens: they determine who is the dominant member and his version becomes the verdict, then they each rationalise it.
This woman doubted herself – high functioning autistics are more reflective, they naturally will express more self-doubt. If it comes down to it I want them not just on the jury but also on the bench.
It’s fair to say that everybody is cognitively different, but to say that we’re all autistic to a degree is to trivialize the very real problems that someone with an autistic spectrum disorder lives with every day. I’m sure that’s not what you intended, but it’s something to be cautious about. We’re not all Einsteins, but we are not all autistic either. Autism is quite real, and we should respect those who live with it for the challenges they endure.
It doesn’t trivialise to recognise their rights and to notice that while they think differently so do the borderline woman, the bipolar guy, the alcoholic and the others without labels. High functioning autistics are capable of serving on juries because they are no less competent than anyone. What makes them unusual is their inability/unwillingness to hide their incompetence, not the incompetence itself. Key distinction.
Thank you for a very thought provoking post. From a pragmatic point of view I have to agree with you but as diagnostic methods for autism are continuing to improve the subject will have to be revisited.
You’ve made a mistaken assumption. While this post focuses on autistics, that doesn’t mean that “the borderline woman, the bipolar guy, the alcoholic and the others without labels” are fine. They just aren’t the subject of this post.
The borderline woman, the bipolar guy, the alcoholic and the others without labels are everyone. That’s my point. You now have no jury. Nor can you distinguish between the perceptual ability of high functioning autistics and whoever else you want. Unless you want to discuss particular features of the condition? As far as I can see, autistics’ lack of empathy makes them fairer jurors, not worse ones. Do they have other relevant issues?
I can see from the defendant’s point of view, you want them to believe they had a fair trial and autistics stick out.
Aside from your assumptions, (…are everyone), they’re not everyone. You’ve attributed lack of empathy to autistics. Says who? This isn’t part of the syndrome. Everyone isn’t bipolar, drunk or autistic. Every autistic isn’t unempathetic. Your welcome to form whatever assumptions you like, but they’re crude and baseless. In any event, you’ve had your say and made your opinion clear. I think you’re wrong, and have been wrong at every turn. That’s the end of it.
[Ed. Note: Keith, an anonymous commenter, has continued to argue his point in
asubsequent comments, which I’ve removed..]Trial judges and lawyers need this blog post.
“Case-specific juror competency” is one of the most neglected issues by trial attorneys. We tend to focus, instead, on disqualifications that go to bias (implied or explicit).
I’ve written extensively, recently, about how to think about the differences between Competency and Accommodation, as applied to potential trial jurors, and what the law regarding competency is. Depending upon the length of trial, complexity of issues, role of nonverbal communication, visual exhibits, and demands of any trial, some jurors will not be competent to do the job, due to a variety of medical, physical, emotional, or life conditions (chronic, permanent, or episodic).
Jurors must be able to listen to all of the trial, retain the information, understand the evidence, comply with the judge’s instructions, and successfully interact in deliberations with other jurors. That’s the job they are up for during jury selection. Their ability to do that job affects the rights and life of someone else.
Pertaining to an autistic juror (and I adopt in full Scott’s premise that none of us are not the best judge of the limitations our medical/physical conditions), if an autistic juror wants to serve, they need to think through the Juror’s Trial Task, the specific demands of that trial, and then specifically indicate what accommodations they would need to do that task. The lawyers then decide whether or not to challenge the juror, the judge rules on challenges for cause, and the lawyers still have peremptories available.
However, the value of this blog post, though limited to the Autistic Juror, is that it’s a reminder that the trial attorney has a client that needs our compassionate attention to the limits of each and every citizen who may serve as a juror. Zealous advocacy. Competency of counsel.
Thanks. As difficult as it may be to suggest that every person won’t make an appropriate juror, it has to be said.
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This post was mentioned on Twitter by montserratlj: I would think perfect juror. The Autistic Juror (Update)(@ScottGreenfield): http://bit.ly/2eGT3m
Accepting your premise for a moment, there are a large number of autistic adults in the population who are un-diagnosed. This is a function of incomplete comprehension of the disorder from when they were children; today, many of them would be properly diagnosed.
Given the large number undiagnosed individuals, is it appropriate to consider autism in as a potentially excluding factor? The end result is exclude people of a) given age classes (where diagnosis is more probable) and b) given socioeconomic backgrounds, where they can acquire the diagnosis. Is this an appropriate trade-off?
Your questions demonstrate a fundamental lack of understanding of voir dire. The point is to identify and remove all unqualified people from the panel. That some are more difficult to ascertain doesn’t mean that we leave others on, just to be nice about it.
I’ll admit to that statement quite readily. I’ve never quite been able to wrap my head around the whole process. Thanks for the reply.
Having had the opportunity to sit on a number of juries, both civil and criminal, I can say that as soon as you go to deliberate the main ability required is communication. A group of people is bringing different facts, opinions, and experiences to the information that’s been provided – to make a decision about someone’s future (or in a civil cases between 2 people).
That requires the ability to communicate. A mute wouldn’t qualify, nor someone deaf who spoke only sign language. Similarly someone who isn’t sufficiently functional in the language of the trial (English) wouldn’t qualify.
Since an autistic can’t communicate with others in direct verbal communication – or is significantly impaired, they also shouldn’t qualify.
I would think this would become readily apparent during jury selection. The opposing attorneys do engage every juror in some level of back and forth conversation.
The jury selection process varies wildly from place to place, court to court, and not every potential jurors is fully engaged. Indeed, in federal court, where the questioning is done by the judge, some jurors never have to say more than yes or no, and perhaps describe their occupation. Under these circumstances, it’s quite possible that someone who isn’t capable of full communication might slip through.
But it bears noting that, while the ability to communicate is crucial, it’s not the only skill required to serve as a juror. It very much involves the ability to think that forms the communication, to process information, non-verbal cues, etc. I hesitate whenever someone tries to oversimplify the responsibility of sitting in judgment of another human being. It is not an easy task.
I have Asperger’s and I got to say this is generalizing. Why not suggest handling it based on individual circumstances, instead of automatically excluding people on the autistic spectrum? The ability to communicate is not a black-and-white yes-or-no kind of thing. There are aspects to “communication”, whether a person can handle X or Y aspect of communication. Especially towards the milder end of the spectrum you often get people with isolated aspects of communication that may even be better than normal. Maybe some might make up for any deficits. Personally, I look at information especially pertaining to issues of politics, law, etc. in the media with strong skepticism where others would uncritically accept it.
The individual’s “special interest” would be important. Law, politics, jury trials-Then the autism might be a strength. Being the ultimate political junkie I can say with confidence the entire court case could easily hold my attention.
One good strength of mine would be that I know lawyers often put out purely emotional appeals and get away with it. My objective and logical way of thinking would be impervious to that sort of persuasion. I would be scanning the evidence ONLY for things that would logically be pertinent to whether the person being tried committed the crime at all, recognizing “how terrible” it is is irrelevant and that the question being considered is “did the person commit it?”
Often evidence is admitted that demonstrates “how terrible” the crime was, evidence that is irrelevant to whether the person being tried is in fact the person who did it, and this has a psychological effect of getting jurors to say “guilty” just because seeing that evidence makes them feel like they need someone to blame.
I also strictly adhere to the “beyond reasonable doubt rule”, and would very carefully analyze any evidence and if I found “reasonable doubt” I would insist on “not guilty” regardless of any peer pressure from the rest of the jury. I’ve read of court cases before where someone gets convicted in spite of there being “reasonable doubt” left.
Many jurors often overlook things, just don’t care, or let their emotions decide the verdict. I would approach any jury trial as a perfectionist, cataloguing the entire trial in my head and carefully examining for any trace of reasonable doubt. How does that make me disqualified?
You’ve missed the point, which in a way, is the point. In selecting a jury, we don’t get to know you deeply, up close and personal. It’s cursory and guesswork. You might make a wonderful juror. You might not. We wouldn’t have the slightest clue which it was until later, if at all. It’s chance we can’t take with another person’s life. It’s not about you, but about the guy on trial.