Juror Questionnaires,
AD/HD, and the
Right to Privacy
by Robert M. Tudisco, Esq.
ou are an adult with AD/HD. One day you open your mailbox to find the
dreaded jury duty notice. It is inconvenient; you are having difficulty managing all of
your projects at work as it is, but now you are legally compelled to miss work and report
for jury service. As a good citizen, you report to the courthouse and are ultimately sent
to a courtroom as a potential juror. When you get there, you are given a questionnaire
to fill out that asks for personal information about your health and mental health, including medications you take to manage your symptoms. It hardly seems right. Do you have to answer these questions
about your medical information? What about your right to privacy? What should you do?
Jury selection questionnaires
Of the fundamental principles of our judicial system,
none is more important than the right of the accused
to be judged by a jury of his or her peers. This principle is so important to our legal system that jury
service is compulsory. In practice, however, the
definition of peer is a more complicated issue.
Robert M. Tudisco, Esq., is a practicing attorney
and adult diagnosed with AD/HD. A former member
of CHADD’s board of directors, Tudisco serves on the
editorial advisory board of Attention magazine and
CHADD’s public policy committee. He welcomes
questions and comments on his website,
ADDcopingskills.com.
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As a result of the increased volume in both the civil and
criminal systems, courts have sought ways to streamline the
jury selection process. Many courts have moved toward limiting attorneys’ direct access to jurors in favor of questionnaires
to expedite decisionmaking. Jury consultants and attorneys
have begun crafting questionnaires that provide the most
possible information yet can be reviewed quickly. Attorneys
can then spend their allotted time for direct questions to focus attention in specific areas to help them make informed
choices about jurors for their respective clients.
Excluding potential jurors
Based upon information from
questionnaires and/or direct
questioning, litigants are permitted to exclude potential
jurors in two ways. The most
common reason to challenge a potential juror is
for cause. What this means is that based on the
information obtained about a juror, it is clear
that the person is biased toward one side or
the other and therefore cannot be impartial
in a particular case. Challenges for cause, if
established, are unlimited.
The other type of challenge is the
peremptory challenge, in which a litigant may exclude a juror without giving a reason. The number of peremptory challenges is limited by state or federal law. These challenges are much more
csreed, tony baggett / istock
Now turn the scenario around a bit. You are not a prospective juror, but a litigant. All you want is to have your day
in court. You want a fair and impartial jury to decide your
case. But there is one problem—your actions, which gave rise
to the litigation or prosecution, were symptomatic of your
AD/HD and other co-occurring conditions. How do you
know whether potential jurors will understand your situation or even know
what AD/HD is? Will they be tainted by
the same stigmas about AD/HD that
you have faced all your life? How do
you ensure that you (through your
legal team) select a jury of your peers and
receive a fair trial as promised in the Constitution?
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Jurors’ rights vs. litigants’ rights
In trying to obtain as much information about prospective jurors as possible, a recent trend
in questionnaires has been to ask jurors to provide information about disabilities, both physical and mental, along with
medications they are taking. This represents a direct conflict
with a potential juror’s right to privacy about disabilities and
medications. Exercising the right to privacy in these instances
may potentially reveal personal information and ultimately
disqualify the person from serving.
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Attention
While not many people would be terribly upset at the prospect of not having
to participate, jury duty is still compulsory. Additionally, for the system to work,
it is important for juries to represent a
fair cross-section of the community. The
problem is that there appears to be a bias in
practice between individuals taking medication for physical health conditions versus
those taking medication for mental health
disorders, such as AD/HD and other cooccurring conditions. On its face, this represents a direct form of discrimination.
On the one hand, the court and litigants
may argue that there are practical reasons
why such information is relevant. In the
case of AD/HD, for example, a juror’s ability to focus and attend to crucial and complicated information is
important to the fair outcome of a trial. Furthermore, impulsivity in
decisionmaking may pose a distinct disadvantage to either party.
When faced with a potential conflict between the rights of
jurors and the rights of litigants, the court will almost always
find in favor of the litigants. This is especially true in a criminal
situation, where the constitutional rights of the accused are given
foremost consideration.
junial / istock
subjective (for example, the attorney feels
that the juror might not identify with the
client or particular position in the case).
Traditionally, peremptory challenges do
not require a reason; however, that is not
a hard and fast rule. In Batson v. Kentucky
and following cases, the U.S. Supreme
Court ruled that peremptory challenges
may not be used to exclude jurors based
upon race, religion, or other “protected”
reasons. Based upon this ruling, an attorney may be called upon to provide the reason for a peremptory challenge to ensure
that protected reasons are not the cause.
While a juror does have a right to privacy, another question
arises: How does this affect the rights of the accused to have a
fair trial and to be judged by a jury of his or her peers? In the
case of a criminal defendant who struggles with challenges from
AD/HD or other related conditions, he or she does have an interest
in finding jurors who may identify with the struggles of coping
with the disorder and potentially be sympathetic to how the defendant reacts to his or her environment.
The juror’s exclusion on this basis does potentially violate a defendant’s right to seek a jury of peers from a fair
cross-section of the community. What makes matters worse
is that a defendant in this situation may be left with potential jurors who are not educated or impartial about
AD/HD and mental health disorders but instead are tainted by traditional stereotypes about individuals with disabilities. This draws
a fine line between individuals who wish to exercise their right to
privacy and the desire to provide a balanced, unbiased, and educated view of individuals with disabilities such as AD/HD.
What you can do
If you are scheduled to appear for jury duty, and during the
process questions arise that involve a disability, illness, or medication, there are things you can do to protect your privacy
while still actively participating in the jury process. Instead of
refusing to answer questions, ask to discuss the information
privately with the judge and attorneys. If you believe you can be
a fair and impartial juror for that particular case, tell the judge
and offer whatever information you feel comfortable disclosing. Regardless of the outcome, if you believe the questions are
phrased in an inappropriate manner, you should discuss that
with the court and make suggestions for wording that would
make you less uncomfortable. This will help future potential
jurors deal with this issue.
If you are a litigant or an attorney, especially in a criminal case,
you should get it on the record right from the start if you believe
that your or your client’s right to a fair trial by a jury of peers is
being violated. It may be the basis for an appeal. When questioning potential jurors about mental health issues and/or medication,
be tactful and respectful. Stress that this is not being done to pry,
but to protect and preserve your client’s constitutional rights and
make sure he or she gets a fair trial. Make sure that the information
you are seeking is relevant to those concerns and to other matters
that may arise in the case.
The issues presented here are complex and not easily resolved. Many remain untested by the legal system; however, it is
important to raise these questions with a view toward resolving
them or being prepared if conflict arises. My experience has always been that the best way to advocate for a particular position
is to anticipate and understand the opposing view. Understanding all sides of an issue can often lead to resolution. ●
April 2009
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