Terra Extraneus

The number of incarcerated persons in 2006 was 2,245,189 according to a department of the DOJ, found here. At the end of 2005, there were 4,900,000 persons on parole or probation. Of the offenders on probation, half were felons. 94% of parolees had been sentenced to more than a year in prison.

Anyway you look at it, that is at least 3 or 4 out of every 100 persons, 3% to 4%, is a felon in the United States.

Who cares? Trial lawyers had better.

What prevents felons from registering as voters? What prevents felons from being selected for jury duty?

The answer to both questions is: almost nothing.

Federal statutes preclude persons charged (not convicted) or convicted of a crime punishable by more than a year in prison from serving on a jury in a federal court house. But, the law requires the local federal district court to implement the statute. Most local federal district courts in the United States rely upon jury questionnaires to weed out felons. The assumption is that felons will not return the questionnaire and not show up, or will truthfully disclose their status. The assumption is that voter registration systems will, relying on the same approach, weed out felons. Both assumptions are going to be tested as the number of felons in our society escalates at rate of several percentage points per year. This is especially problematic in federal court trials on the civil side wherein voir dire is the exclusive province of the federal judge.

The voir dire problem, too, will aggravate the problem because even more prospective jurors than ever before will have friends or family that have been caught in the judicial machinery. There is no longer a complete consensus in society that predominately governs how people will react to felons.

State and federal court clerks are going to have to be given computer access to the criminal record databases used by law enforcement to track arrests, convictions, paroles and probation. State and federal court clerks are going to have to screen prospective veniremen.

Arbitration forums are going to have to implement criminal record disclosure into their systems, too. While arbitration forums may not have access to criminal record databases in every instance, they will in some instances. For example, nearly all adult criminal convictions are accessible on line to the public in Oklahoma. In some states like Texas, there is much less access publicly available. While it may not be illegal for an arbitrator to be charged with or convicted of a crime involving more than a year of imprisonment, it probably should be. Indeed, some courts would likely impose that standard on arbitrators simply because it is already imposed on federal jurors.

Until better screening tools are available, trial lawyers, when they have sufficient resources, are going to have to screen jurors and arbitrators as best they can. In many cases, however, for the time being, it simply will not be possible.

Some wags will argue that it is not a problem until it happens. Too late, it has happened, and will happen with increasingly regulatory. Mistrial is a pretty expensive remedy.