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Justice for Jurors Too

Job seekers might be amazed at the questions judges ask about a juror's private life

''Are you divorced?" "Do you have children?" "Do you have a religious or political affiliation?" "Do you belong to any clubs or civic organizations?"

Ask any of these questions in a job interview, and you have very likely just broken federal, state, and/or local law.

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Yet every day, throughout the nation, attorneys ask these and hundreds of even more personal questions of ordinary citizens called for jury duty. The law offers no protection to jurors - unlike job applicants - from prying inquiries. On the contrary, in most cases judges require that potential jurors provide the information demanded.

In the murder trial of O.J. Simpson, California Superior Court Judge Lance Ito asked potential jurors 302 written questions.

"Have you ever dated a person of a different race? If yes, how did you feel about it?"

"Have you ever felt sufficiently frustrated within a domestic relationship that you considered violence?"

"If divorced, did you initiate the divorce?"

"Do you have a religious affiliation or preference? If yes, please describe. How important would you say religion is in your life?"

The prosecutors and defense attorneys in the case believed that these questions would help them select an impartial jury. Judge Ito required citizens under consideration for the Simpson jury to answer the 75-page questionnaire and then face weeks of additional questions about their lifestyles and tastes.

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In this respect, the Simpson trial was typical of a trend in US courts. Would-be jurors in the rape trial of Mike Tyson had to answer 78 written questions about whether they ever belonged to the National Organization of Women, played competitive sports, or attended religious services. In the case of two men accused of beating truck driver Reginald Denny, prospective jurors confronted 45 pages containing 116 questions.

Yet any one of those questions would likely violate federal and, in most cases, state or local law if asked of a job applicant - even if the inquiry related to his or her ability to perform the job.

According to the Equal Employment Opportunity Commission, a prospective employer may not ask a job applicant if alcohol or drug use or a medical condition "interfere[s] with your ability to work." Don't even think of asking if an applicant has ever been arrested. In 1981 the EEOC notified employers that the "mere request for such information" is "illegal."

Something is wrong when the law prohibits an employer from asking whether a prospective employee can do the job and yet requires a citizen called for jury duty to disclose the most private details of his or her daily life. It is not enough protection for would-be employers. And far too little for potential jurors.

Just ask Dianna Brandborg. On Feb. 7, 1994, in Denton County, Texas, State District Court Judge Sam Houston sentenced prospective juror Brandborg to three days in jail and a $200 fine for refusing to answer 14 questions about her income, religious beliefs, political activities, club memberships, and television viewing habits. The questions were part of a 100-question, 13-page questionnaire that had already mired jury selection in the murder case for five weeks. Judge Houston reportedly uses the questionnaire regularly in his courtroom.

Ms. Brandborg appealed her sentence, arguing that jurors deserve at least as much protection for their privacy as do the defendant and the witnesses. A Texas court of appeals disagreed. Finally, Brandborg turned to the federal courts for relief. Fifteen months after Judge Houston sent her to jail, a federal magistrate overturned the judge's order, finding that the questions were never shown to be relevant to Brandborg's qualifications for jury service.

"What happened to me was an outrage," Brandborg said. "I went there that day to fulfill an obligation for jury service. And it was like I was put on trial. Maybe I am an idealist, but I think the Constitution is clear. I think my rights as a citizen weigh equally with the rights of a defendant."

Or at least with the rights of a job applicant, whom the law protects from facing the types of questions Judge Houston routinely compels potential jurors to answer.

Employment and antidiscrimination laws serve valuable and important purposes, but they go too far if an airline may not directly ask a potential pilot, or a hospital inquire of a potential doctor, about alcohol or drug use that could impair his or her ability to perform the job and put the public at risk. We must leave some room for common sense.

The Sixth Amendment guarantees a defendant's right to trial by impartial jury, not impartial jurors. A verdict is not merely the sum of 12 independent votes. Impartiality depends on deliberation, on interaction between 12 sets of experience and knowledge.

If questions are relevant - either to selecting an impartial jury or to choosing the best employee - then the law should not interfere with their being asked in courtrooms or job interviews. If they are not relevant - and personal questions rarely are - then neither judges nor employers have any business asking them.

*Newton N. Minow, a former Federal Communications Commission chairman, is counsel to Sidley & Austin. Fred H. Cate is a professor of law at the Indiana University School of Law, Bloomington.

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