We are supposed to be tried by a jury of our peers. While it would be nice to have 12 doctors sitting in the jury box, if that ever happens, it will qualify as a case report. Nonetheless, a cottage industry has emerged to define who the best twelve potential jurors (or however many are required in your state) are. Jury consultants are paid to strategize the best way to stack the deck with favorable jurors- for the plaintiff and the defense.
An article in law.com described one such strategy- asking whether the juror is taking any medication. Like every good ER physician knows, you can recreate a pretty good medical history with little more than knowledge of the pills and capsules the paramedic discovers in the unconscious patient’s pocket or purse.
The presumed rationale for asking the question is that jurors are charged with being attentive and with enough cerebral reserve to deliberate on an important matter. If they are taking medication, a laundry list of side effects might interfere with those important cognitive functions.
Joel Hirschhorn, a Florida criminal attorney noted the question was asked of 20 potential jurors in a pool of a case he was defending. Five confirmed taking medications including Xanax, Prozac, and OxyContin. Hirschhorn confirmed the Xanax and Prozac jurors were copacetic; but he drew the line at OxyContin. That juror was dismissed with thanks and parking money.
Lori Cohen, an Atlanta lawyer, noted the issue of medications must be probed “in a gentle, polite, considerate way, preferably in private … or you risk offending the entire jury.” Cohen also stated that in her experience, up to half of jurors confirmed taking medications.
Amy Singer, a jury consultant with 30 years of experience, distilled the issue in the following way: “I’m concerned if someone is taking antipsychotic medication. If they’re taking high blood pressure, that’s none of my business.”
The Florida bar held a conference, “Juiced Jurors,” focusing on the issue. To drive home the point, a presenting jury consultant, Sun Wolf, distributed magazine ads of a number of pharmaceuticals describing the side effects of these drugs. These drugs included Viagra, Claritin, and Valium. “The side effects can interfere with a jurors’ ability to sit and concentrate during long trials,” SunWolf said. She continued that such information can be used to bounce jurors. It was unclear what type of juror might take Viagra prior to attending trial. One answer might depend upon that juror’s expectations of who he might be sequestered with.
There are serious questions emerging from this strategy – what are the unintended consequences and where is the line drawn. If good jurors have yet another excuse to “be bounced,” a large subset of the intelligent, working population will take advantage. And, if that happens, who will remain behind to deliberate? Next, if the metric being queried is how well a person can concentrate, it might make sense to have jurors take an IQ test. If that happens, maybe a jury of twelve physicians is within reach.