APRIL09 TUDISCO Juror Questionnaires

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Now turn the scenario around a bit. You are not a pro-

spective juror, but a litigant. All you want is to have your day

in court. You want a air and impartial jury to decide yourcase. But there is one problem—your actions, which gave rise

to the litigation or prosecution, were symptomatic o your

AD/HD and other co-occurring conditions. How do you

know whether potential jurors will un-

derstand your situation or even knowwhat AD/HD is? Will they be tainted by

the same stigmas about AD/HD that

you have aced all your lie? How do you ensure that you (through your

legal team) select a jury o your peers and

receive a air trial as promised in the Constitution?

Juy slcion qusionnis

O the undamental principles o our judicial system,

none is more important than the right o the accused

to be judged by a jury o his or her peers. This prin-

ciple is so important to our legal system that jury service is compulsory. In practice, however, the

denition o peer is a more complicated issue.

As a result o 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 limit-ing attorneys’ direct access to jurors in avor o questionnaires

to expedite decisionmaking. Jury consultants and attorneys

have begun crating questionnaires that provide the most

possible inormation yet can be reviewed quickly. Attorneys

can then spend their allotted time or direct questions to o-cus attention in specic areas to help them make inormed

choices about jurors or their respective clients.

excluding ponil juos

Based upon inormation rom

questionnaires and/or direct

questioning, litigants are per-mitted to exclude potential

jurors in two ways. The most

common reason to challenge a potential juror is

or cause. What this means is that based on the

inormation obtained about a juror, it is clearthat the person is biased toward one side or

the other and thereore cannot be impartial

in a particular case. Challenges or cause, i established, are unlimited.

The other type o challenge is the

peremptory challenge, in which a liti-

gant may exclude a juror without giv-ing a reason. The number o peremp-

tory challenges is limited by state or ed-

eral law. These challenges are much more

Juror Questionnaires, AD/HD, and theRight to Privacy

by Robert M. Tudisco, Esq.

ou are an adult with ad/hd. One day you open your mailbox to nd thedreaded jury duty notice. It is inconvenient; you are having diculty managing all o

your projects at work as it is, but now you are legally compelled to miss work and reportor 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 questionnaireto ll out that asks or personal inormation about your health and mental health, including medica-tions you take to manage your symptoms. It hardly seems right. Do you have to answer these questionsabout your medical inormation? What about your right to privacy? What should you do?

16

c s r e e

d , T o N Y

B A g g e T T / i s T o c k

rob 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.



17April 2009



18 anion

subjective (or example, the attorney eels

that the juror might not identiy with the

client or particular position in the case).

Traditionally, peremptory challenges donot require a reason; however, that is not

a hard and ast rule. In Batson v. Kentucky

and ollowing cases, the U.S. Supreme

Court ruled that peremptory challengesmay not be used to exclude jurors based

upon race, religion, or other “protected”

reasons. Based upon this ruling, an attor-

ney may be called upon to provide the rea-son or a peremptory challenge to ensure

that protected reasons are not the cause.

Juos’ ighs vs. liigns’ ighs

In trying to obtain as much inor-

mation about prospective jurors as possible, a recent trend

in questionnaires has been to ask jurors to provide inorma-

tion about disabilities, both physical and mental, along withmedications they are taking. This represents a direct confict

with a potential juror’s right to privacy about disabilities and

medications. Exercising the right to privacy in these instances

may potentially reveal personal inormation and ultimately disqualiy the person rom serving.

While not many people would be ter-

ribly upset at the prospect o not having

to participate, jury duty is still compul-

sory. Additionally, or the system to work,it is important or juries to represent a

air cross-section o the community. The

problem is that there appears to be a bias in

practice between individuals taking medi-cation or physical health conditions versus

those taking medication or mental health

disorders, such as AD/HD and other co-

occurring conditions. On its ace, this rep-resents a direct orm o discrimination.

On the one hand, the court and litigants

may argue that there are practical reasons

why such inormation is relevant. In thecase o AD/HD, or example, a juror’s abil-

ity to ocus and attend to crucial and complicated inormation is

important to the air outcome o a trial. Furthermore, impulsivity in

decisionmaking may pose a distinct disadvantage to either party.When aced with a potential confict between the rights o

jurors and the rights o litigants, the court will almost always

nd in avor o the litigants. This is especially true in a criminal

situation, where the constitutional rights o the accused are givenoremost consideration.



19April 2009

While a juror does have a right to privacy, another question

arises: How does this aect the rights o the accused to have a

air trial and to be judged by a jury o his or her peers? In the

case o a criminal deendant who struggles with challenges romAD/HD or other related conditions, he or she does have an interest

in nding jurors who may identiy with the struggles o coping

with the disorder and potentially be sympathetic to how the de-

endant reacts to his or her environment.The juror’s exclusion on this basis does potentially vio-

late a deendant’s right to seek a jury o peers rom a air

cross-section o the community. What makes matters worse

is that a deendant in this situation may be let with po-tential jurors who are not educated or impartial about

AD/HD and mental health disorders but instead are tainted by tra-

ditional stereotypes about individuals with disabilities. This draws

a ne line between individuals who wish to exercise their right toprivacy and the desire to provide a balanced, unbiased, and edu-

cated view o individuals with disabilities such as AD/HD.

wh you cn do I you are scheduled to appear or jury duty, and during the

process questions arise that involve a disability, illness, or medi-

cation, there are things you can do to protect your privacy

while still actively participating in the jury process. Instead o reusing to answer questions, ask to discuss the inormation

privately with the judge and attorneys. I you believe you can be

a air and impartial juror or that particular case, tell the judge

and oer whatever inormation you eel comortable disclos-

ing. Regardless o the outcome, i you believe the questions arephrased in an inappropriate manner, you should discuss that

with the court and make suggestions or wording that would

make you less uncomortable. This will help uture potential

jurors deal with this issue.I you are a litigant or an attorney, especially in a criminal case,

you should get it on the record right rom the start i you believe

that your or your client’s right to a air trial by a jury o peers is

being violated. It may be the basis or an appeal. When question-ing potential jurors about mental health issues and/or medication,

be tactul and respectul. 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 air trial. Make sure that the inormation 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 re-

solved. Many remain untested by the legal system; however, it isimportant to raise these questions with a view toward resolving

them or being prepared i confict arises. My experience has al-

ways been that the best way to advocate or a particular position

is to anticipate and understand the opposing view. Understand-ing all sides o an issue can oten lead to resolution.●

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APRIL09 TUDISCO Juror Questionnaires