David E. Rovella December 12, 2000, Tuesday American Lawyer Media
(NEW YORK) -- Mindful of recent cases of police brutality and corruption, potential jurors have become more distrustful of police testimony, according to a recent poll by The National Law Journal and DecisionQuest, a national jury consulting firm.
More than a third of those polled as part of the 2000 Juror Outlook Survey said that police scandals in Los Angeles, New York and New Jersey have negatively colored their perspective on police officers, continuing a trend of the past few years.
Feelings of distrust were even greater among minorities, with a full half of all blacks polled saying that police officers are not credible witnesses.
"For a long time, the white community was fully willing to believe that police would not engage in that kind of misconduct," says George Kendall, a staff attorney at the NAACP Legal Defense and Education Fund (LDF). But a flood of media reports, including a post-survey Nov. 27 report showing that eight of every 10 automobiles stopped and searched on New Jersey highways since 1990 were driven by minorities, have disabused many of that perception, says Kendall.
"Any poll of minority residents in New Jersey five or 10 years ago would have shown doubts, but what this polling is showing is an increase in whites saying, 'Yeah, you're right,' " he says.
A growing doubt over the efficacy of capital punishment also has resonated with jurors, the poll showed. Almost one-fifth of potential jurors who said that they support the death penalty in some circumstances conceded that new doubts have increased their opposition to capital punishment. Meanwhile, 41 percent of all respondents said they don't believe current procedures for reviewing death sentences are adequate.
The survey, performed Sept. 22-24, involved 1,000 adults older than 18-the potential juror pool-more than 54 percent of whom had been called for jury duty and 40 percent of whom had actually served.
Of those polled, those between 18 and 24 said they were much less trusting of the criminal justice system than their elders.
While 45 percent of those polled said they would disregard a judge's instructions if they thought justice would be best served, 69 percent of young adults said they would engage in such jury nullification.
While 64 percent of all respondents said they think police officers usually tell the truth on the witness stand, up from 61 percent in 1998, only 51 percent of young jurors agreed with that sentiment. Only 40 percent of black respondents and 38 percent of Hispanics said they would believe police testimony.
Youth distrust of the system also flows toward defendants. Some 47 percent of young adults said a defendant's decision not to testify on his own behalf indicates that the defendant has something to hide. Only 36 percent of all respondents agreed with that sentiment, down from 50 percent last year, a fact that one lawyer says is a rare, positive byproduct of numerous law-oriented television programs.
"Some of these real-life and semi-real-life productions on television show that the layperson who is not trained to be a witness can be made to seem untruthful by a lawyer," says Edward A. Mallett, a partner at Houston's Mandell & Wright and president of the National Association of Criminal Defense Lawyers. In addition to poll questions about the general credibility of police officers, jurors were specifically asked to react to:
The Rampart scandal in Los Angeles, where police officers have been accused of planting evidence and assaulting unarmed suspects.
Charges of racial profiling by the New Jersey State Police.
A series of shooting deaths of unarmed men at the hands of the New York City Police Department.
In later questioning, some 24 percent of all respondents said they could not be impartial if they were impaneled in a case in which a police officer was the defendant and the charges involved police brutality or misconduct.
This bias against the police was higher among minorities and youth, with some 32 percent of Hispanics, 38 percent of blacks and 41 percent of 18- to 24-year-olds saying they could not be impartial in such a case.
If an officer has a record of misconduct, the percentage of anti-police sentiment rose to 36 percent of respondents who said they could not be impartial. Women and young adults were even more distrustful, with 44 percent of each group saying they could not be impartial in such a case.
Some defense attorneys say that any strategic benefit defense lawyers may derive from these numbers will be incremental.
"I can acknowledge to the jury that police officers do not come from any better a place than another witness, but when it gets to an individual case, it may be very hard to persuade jurors that a police officer is lying," says the NACDL's Mallett. "The only implication is that prosecutors will be especially careful to deny jury service to those who acknowledge their bias."
Robert M.A. Johnson, county attorney for Anoka County, Minn., and president of the National District Attorneys Association, agreed.
"It would play into the questions that you would ask people during jury selection ," says Johnson of how prosecutors would change their voir dire tactics. "You would try to develop attention to credibility as to whether people had some issues with regard to police ."
Doubts About Death
The spate of recent exonerations of death row inmates, both by DNA and outside investigations by anti-death-penalty groups, has had a marked effect on the way potential jurors view the use of capital punishment, the poll showed.
Some 31 percent of all respondents said that such recent events have made them more inclined to vote for life imprisonment instead of the death penalty if the option is available in a murder case. But only 28 percent said they would oppose capital punishment in all circumstances if the possibility existed that just one innocent person could be executed.
"The excuse that wrongful convictions have been episodic has been shaken," says the LDF's Kendall. "It's not just about the death penalty-people are having increasing doubts about the death penalty from other ways. If the cops can lie about racial profiling in New Jersey for 10 years, what's to keep them from lying about this?"
Overall, 22 percent of potential jurors said they are against the death penalty in all circumstances. The poor were more likely to oppose capital punishment than the wealthy; some 27 percent of those earning less than $20,000 absolutely oppose the death penalty, while only 16 percent of those who were making more than $75,000 oppose it.
Lower-income jurors tended to have less doubt about the adequacy of the appeals process than did wealthier jurors. The survey also revealed that female jurors were more skeptical about the application of the death penalty than men. But Johnson says he believes that wrongful convictions are not the biggest reason for juror cynicism.
"I don't believe that the death penalty debate is as damaging to the perception of fairness and justice as what I believe to be aberrant behavior on behalf of some individuals," he says, pointing to the Rampart scandal.
Kendall says that police and prosecutors could reclaim their credibility by placing less emphasis on being adversarial.
"If I were a DA somewhere, I would want to have an entirely open file system-not just with my DAs, but with the police-to make sure the defense has access," he says. "It's imperative on courts and prosecutors to admit that we've got a problem. Let's open the process up-because you can't reclaim your credibility by keeping the doors shut."
Although he would not go as far as Kendall, Johnson did concede that the poll numbers point up a serious deficiency in the criminal justice system. "If there's a perception that the criminal justice system is not effective, you have a number of unfortunate consequences for society," he says. "People won't bring legitimate criminal acts to the system because they don't believe it would deal with them effectively, or they may decide to act outside the system."
Additional results from the Juror Outlook Survey show that:
Jurors have taken a hard line on computer crime, with 77 percent of those polled saying that hackers who access other people's networks or computers should be prosecuted.
More than 82 percent of potential jurors polled say that they believe DNA evidence is more reliable than fingerprints.
Some 33 percent of those polled say the fact that a prosecutor has charged a defendant with a crime means that defendant is probably guilty.
David E. Rovella writes for The National Law Journal, a sister publication of the Daily Report.