Stuff You Should Know - How Juries Work

Episode Date: May 18, 2023

It’s totally bonkers that in the US and other countries, the job of determining the guilt or innocence of an accused criminal – whose life may be at stake – is left not to experts in law but to a group of random citizens. Even crazier, it generally works!See omnystudio.com/listener for privacy information.

Hi, I'm David Eagleman. I have a new podcast called Inner Cosmos on iHeart. I'm going to explore the relationship between our brains and our experiences by tackling unusual questions like, can we create new senses for humans? So join me weekly to uncover how your brain steers your behavior, your perception, and your reality. Listen to Inner Cosmos with David Eagleman on the iHeart Radio app, Apple Podcasts, or wherever you get your podcasts. On Queen Charlotte, the official podcast, we're stepping behind the scenes and the drawing boards of this team to experience the life breathed into the Bridgerton prequel. Listen to the Leap's executive producer and series director, Tom Verica, took to capture the feeling that puts

that lump in your throat. And you've got to catch creator Shonda Rhimes. She's dropping gems, diamonds, and mics. You can listen to Queen Charlotte, the official podcast every Thursday on the iHeart Radio app, Apple Podcasts, or anywhere you listen to your favorite shows. Welcome to Stuff You Should Know, a production of iHeart Radio. Hey and welcome to the podcast. I'm Josh and there's Chuck and Jerry's hanging out too if she exists and this is Stuff You Should Know. That's right. And as you briefly saw, I'm in my new studio finally. Episode number one after all these years, a fresh start. That's very nice. So let's mark this occasion. Jerry's is the first episode in your new studio. That's right. And it's funny, my chair, I ordered a special little chair for my new studio

that matched the rest of it. Then it's red velvet like the rest of your studio? It's close. And it arrived 15 minutes ago. Oh yeah? Like is it all in one piece? Are you sitting in it? Yeah, it was all in one piece, thankfully. And the guy dropped it on the porch and I was like, you're just in time. And he went, for what? I was like, never mind. And I took it downstairs and like, I haven't even farted in it yet. Oh boy, well make sure you do during this first episode. It's fresh as a daisy. Let everybody know when you do too, okay? I will. All right, Chuck, have you ever been on a jury? No, I think we've talked about this at some point, but I was called once only, believe it or not, at my advanced age. And that was only a couple

of years ago. And that thing where, you know, you can call in and they can say, don't come. I called in and they said, you got to come. So I got to that next step where I go down there and in person. And then I actually got brought into a courtroom. And it was the last second like, we settled, you can go home. Oh really? I was really close. I was like, all right, this is finally going to happen. So is that something you want to do? And let me ask you this, would your answer now be different than it was before you researched this? Maybe, because I used to definitely not want to. And now I totally would want to, as long as it didn't screw up our work and our recording stuff, because that would really be

awful. Yeah, we could make it work though. I mean, I don't know, if you get on one of those, where you're like sequestered for a month. I know, we'll have to bring in Ben Bolin, I guess, as the temporary sit-in. No! I've been called once and I had just moved to a different county and called and told them that and they were like, go to hell. Really? And I took that to mean I shouldn't come in. Oh, I thought you meant go to hell, like nice try buddy, get in here anyway. No, it meant the opposite of that. And I was surprised that a government official, even at county level, would say something like that. I know, right. But that's what happened. This is a banger of an article by Libya though. Yes. It's about juries, everything you ever

want to know about juries. And there's actually a lot to know about juries. It's not just like the process of juries, it's actually kind of pretty light as far as like understanding goes, but there's a lot about juries culturally. And if you step back and really think about what juries do, our entire legal system or the basis of our legal system is largely predicated on 12 random people who have no expertise typically in law or law enforcement or anything like that are asked to sit down and hear the facts of a case that can be highly technical sometimes and then decide a person's guilt or innocence. Sometimes to the degree that they will spend the rest of their life in jail or be put to death with again, zero training, zero experience.

And on the one hand, it seems like total madness that we would do this. But if you really look at the reasoning behind it, it's saying like, this is so important, we wouldn't entrust it to a bureaucracy. We have to entrust it to your peers, to other people who could be in the same exact position that you, the defendant are in someday. And we just need them to take things a little more seriously than usual and render a verdict. Yeah. I mean, it is, it is a little scary when you think about it, but it also as Olivia points out kind of right away, it's really heartening that on the whole, like most people want to do a good job and then they go in there and try to do a good job. I mean, you hear random news stories occasionally about

these people that get on there that do something really stupid, either in the press or just period. And those are fewer and further between. I think when most people get on there, they're like, all right, this is like kind of a solemn duty almost that my country, my country, my country entrusted me. And I should try and do a good job as a citizen. Most people behave that way. Yeah. And I get the impression that people don't go into it necessarily thinking like that. But once you're in there and it's real and you're sitting in a courtroom, like I can't be the screw up. Right. Exactly. Exactly. You want to just kind of blend in and to blend in, you have to act real legal, legal. I would have a hard time just with, you know, I was a real class clown and

and you've seen me and like when we used to have the big, you know, round table meetings, I just have a really hard time not cracking jokes. Right. So that would, the whole thing would be tough for me. Yeah, I could see a witness kind of like half tripping on the way to the witness box and you'd be like, boy, oh, you're yawing. And then it's just dead silence in the courtroom after that. Yeah, that's me. So to kind of go back to the beginning, juries are actually fairly old and they find their roots as at least as far as the United States legal system back in England, because the United States was birthed through the birth canal of the Atlantic Ocean out of the womb of England. That's right. And in 1215, the old Magna Carta said that, you know what,

a free man, of course, those were the words they used back then, but a free person could not be imprisoned except by a judgment of his peers. And as far as modern sort of trials by jury that we could think of today, that basically started around the 15th century with the common law system. And before that, it was just a bit of a hodgepodge. Yeah, so that's where 12 people who are called to hear the facts of the case, like we think of juries today, like you said. But there were something similar for the few hundred years before that. I think in our judicial decisions episode, we talked about King Henry II, who basically came into power. It's like, okay, this is kind of crazy. We're going to come up with one legal system for

the whole country. Something that came out of that was the process of finding people who maybe like knew about a crime, who were witnesses to it. And it usually assembled up to about 12 honest people giving their kind of deposition and or rendering a judgment on it. That's all they could find, maybe. I guess so. Out of like all those people, there were only 12 honest ones. Well, they didn't say sober, they just said honest. Yeah. So, and from the very outset in the United States, even prior to it being the United States, been in the colonies, we did another episode on America's first murderer. That's right. Back in the day, we actually meant United States first murderer. It was John Billington, right?

Yeah. And this was, you know, the pilgrims at Plymouth basically said right away that we're going to do this new jury thing. And it didn't take long, 1630, the first do that we know of at least killed somebody and was tried by jury for willful murder, it's hard to say. Yeah, it is. By plain and notorious evidence. And then there's a few amendments in the Constitution that grant trial by jury as a right. One is the six for criminal cases, the seventh for most civil cases, federal civil cases, that is. And even then it's not, you know, we'll get into all this, it gets a little different with civil cases. And then the old grand jury, which we're also

going to talk about is for capital crimes, or maybe an infamous crime, and that is covered by the fifth. Right. So you typically are considered to have a right to a jury, but not in every single case. Like if it's not a particularly, I guess, egregious case or a case where you could be convicted of anything less than six months, you don't misdemeanor. Yeah, great way to put it. But not all misdemeanors even. No, no, because you can get more than six months for some misdemeanors. Trust me. But they typically don't give you necessarily a jury for that. Also, if there's certain courts like drug courts, mental health courts, they're not meant to be adversarial. They're meant to be like, let's come together and figure out the best way to support

this person to get them back on the straight and narrow, or to help them with their mental health, which apparently is not being addressed because they landed in this court. Those don't necessarily have juries. They almost never do. And the same with juvenile courts, because they're not really supposed to be adversarial either. Unless a child has really screwed up and they're being tried as an adult, then they do have a right to a jury probably every single time. Because if you're a juvenile being tried as an adult, it's probably a pretty big offense that you're being tried for. Yeah. Is that even considered juvenile court? Like, is it in that building? No. I know. It's just like a kid is now in the adult system.

That's right. You can also say, you know what? I waive my right to a jury trial. Don't want one. I want to go with the bench trial, which means you want your judge to basically kind of handle the whole thing, like whether or not you're guilty or innocent. And we'll get into the ends and out to that a little bit later. But the judge also is going to handle the sentencing in the case of almost everything. Right. It's, you know, the jury, they're going to say like, you know, what should this person serve? Because the jury probably be like, I don't know. You tell me. Except for, and this is a really thorny kind of place here, capital punishment cases. The jury decides whether or not to impose the death sentence, which is, I mean, I knew that,

but it's to read it and to sort of really let that sink in is a lot. Yeah, for sure. Like you said, we'll talk a little more about why you would want a bench trial. But under normal circumstances, in a criminal case, there's two kinds of juries, right? They're called the petty jury, P-E-T-I-T, like pedophores. And then there's the grand jury. And it doesn't mean one's more important than the other. It's literally a reference to the number of jurors involved. So that wouldn't be petite? I've heard a legal person say petty, a couple of legal people say petty. Don't you say petty for? Yeah, but you also say petite for small is in not grand. Yes, but there's usually an E on the end. There's no E on the end of this one.

You know what I'm saying? Sure. So with a petty jury, you usually have 12, 6 for a civil case. A grand jury can have up to like in the 20s of people. That's a lot, yeah. Yeah, for sure. It's a lot of people you have to go through and ask what their opinion is, you know? Yeah. And pretend you care. And then, you know, it kind of varies between, you know, you have to have at least 6 for the federal civil juries, but that number can go up. And then the grand jury, which is a different kind of jury, and maybe we should just do one grand juries by itself at some point. So I think it's pretty fascinating. Okay. But a grand jury isn't saying you're guilty or you're innocent of a crime. A grand jury says,

hey, prosecutor, we think there's probable cause here. There's enough here. Somebody can, you should go indict this person. And it's still not illegal. It's just like a recommendation for indictment, right? Yeah. And they may also say, hey, this is not, this is a pretty weak case. You should not indict this person. Or they might actually, the prosecutor might not be able to indict the person. I'm not 100% sure if the grand jury says no. But their role is, and that's also a really ancient institution, the grand jury. Yeah. But their role is to basically cover people who may not have been even convicted of a crime. But the crime is serious enough that if they were publicly matched as a possible suspect, their life could be ruined, their reputation could be ruined.

It affords that level of protection. It's also, I guess we didn't say grand jury proceedings are totally secret. There's a prosecutor, the grand jurors, and a court reporter who's sworn to secrecy. And everything that goes on in there, everybody who comes in or goes out, it's all very secret. And so one of the ways that a grand jury is often used is to protect timid witnesses who might otherwise not give testimony. If you have undercover cops who have to give testimony, that's a really great place for them to do that. And then also, again, to just basically hear whether the prosecutor has a good enough case to indict the person or not. And then, like you said, it may go on to an actual jury trial. And the jury trial is different in that those people are there

to hear the facts of the case that is being tried against this person. They've been indicted. They're now being tried for this offense. And then the judge in that case, in a jury trial, they're just the legal referee. They're just pointing out like, okay, you're allowed to do this. You're not allowed to do that. They don't have anything to do with the facts of the case. They're just the ref. The jury is the one hearing the facts of the case and rendering a verdict based on that. Right. So, oh man, that was good. You need to breathe. If you have been accused of a federal felony, because you remember there's state courts, there's federal courts, and the rules are different for both, although, you know,

a lot of times they're also the same. But if you were accused of a federal felony, then you definitely have the right to the grand jury, but you can waive that. And then state courts also have their state grand juries, except for Connecticut and Pennsylvania or the two states that don't use grand juries for criminal indictments in their state. And then if you're on a jury, they used to call it the foreman. Of course, they're getting with the times and now they call it a foreperson. It's basically kind of like the referee or manager of the jurors. And they're the ones in the room that voted on usually by the jury members. Sometimes they're chosen by the judge, but more often than not, seeing jury members voting very early on in the proceedings after

everyone learns the various personalities. And this is the person that they're kind of running the room when everyone's sitting around and talking. If people are getting out of line, they're like, hey, we need to calm down. They clap loudly. Yeah, we need to figure this thing out. If they, you represent the voice of the jury, so you're the one that's going to stand up and say guilty or not guilty. You're going to be dealing with the judge, although you can request to individually see the judge. Any member of the jury can do that. Right. Like the procedures, you just go, pssst. Yeah. Pssst. Judge. Judge. Hey. Pssst. You holding? You holding. There's another big difference with a grand jury and a petty jury. And that is that a regular jury, I'm going to stop

calling petty jury, but a jury. They sit through one trial, and it can be anywhere from a day to a few days to months, very rarely. I think I saw most trials last less than a week. A grand jury, you are seated for sometimes up to months. Yeah. And you meet on a weekly basis to hear the different prosecutors' cases. So you're hearing multiple cases throughout a meeting, and then you're meeting multiple times over the course of months. So it's a really different animal, for sure. Are you sequestered for that? No, you're not. You're sworn to secrecy, but you're not. As far as I know, you're not sequestered. But because it's so involved and you're so, it goes on for so long, it's typically made up of people who have a lot of free time,

like retired people frequently make up large proportions of grand juries and things like that. Yeah, no shade or anything like that. I'm just saying, it's not necessarily a perfect representation of the community like a jury's supposed to be. But then again, I don't think any jury really is. Right, because these are people that quote have time on their hands, end quote. It's fine. Are we gonna order dinner? All right. Let's take a break, eh? Yes. Yes. And we'll talk about, to me, my most shocking stat in this episode. Hi, I'm David Eagleman. I have a new podcast called Inner Cosmos on iHeart. I'm a neuroscientist and an author at Stanford University. And I've spent my career exploring the three pound universe

in our heads. On my new podcast, I'm going to explore the relationship between our brains and our experiences by tackling unusual questions so we can better understand our lives and our realities. Like, does time really run in slow motion when you're in a car accident? Or, can we create new senses for humans? Or, what does dreaming have to do with the rotation of the planet? So join me weekly to uncover how your brain steers your behavior, your perception, and your reality. Listen to Inner Cosmos with David Eagleman on the iHeart radio app, Apple Podcasts, or wherever you get your podcasts. Last season, millions tuned into the Betrayal podcast to hear a shocking story of deception.

I'm Andrea Gunning, and now we're sharing an all new story of Betrayal. Ashley Lytton was helping her husband set up a business Venmo account when she discovered a terrible secret. I scrolled down and that's when I saw a hidden folder and I opened it. What the hell did I just see? I was scared that he was coming home. What Ashley discovered that day was a secret so dark she feared for her life. She was like, oh my god, I got to get out of the house. He's going to find out that I've seen this. He's going to come kill me. Listen to season two of Betrayal on the iHeart radio app, Apple Podcasts, or wherever you

get your podcasts. If you're looking for someone to help you unpack Queen Charlotte abridged in story, you're in the right place. It's me, Gabby Collins. Come with me because on Queen Charlotte, the official podcast, we're stepping behind the scenes and the drawing boards of this team to experience the life breathed into the Bridgeton prequel. Listen to the leaps executive producer and series director Tom Verica took to capture the feeling that's put that lump in your throat. And you've got to catch creator Shonda Rhimes. She's dropping gems, diamonds, and mics. On this podcast, we're going beyond the basic line of questioning and getting to the heart of the show, all while appreciating the contributions of the show's creative teams and

remarkable cast. Go inside each episode of Queen Charlotte abridged in story with the creatives, the cast, and creator Shonda Rhimes leading the way. Listen to Queen Charlotte, the official podcast Thursdays on the I Heart Radio app, Apple podcasts or anywhere you get your podcasts. All right, we're back. And this shocked me. I knew that trials happened less frequently than I probably thought. But I figured it was like, I don't know, half and half, maybe 40% of the time you go to trial, 60%, you cop a plea. I was nowhere close. And we'll go by a couple of years here. Civil trials in 1962, in federal court, where 12% went to jury trial. Today, federal civil dispositions are 1%. And then criminal, you think, well, criminals got to be a lot

more than that. In the early 80s, criminal court was about 20%. And now 2% of criminal cases go before a jury. And we're going to talk about all the reasons why. But the biggest reason is 90% of the time they take that plea deal. 80% of the time the case is dismissed. And so you're down to 2%. Yeah, state courts is very similar, although it varies from state to state, especially when it comes to civil lawsuits. But with civil trials in particular, probably the biggest reason why it's gone so far downhill as far as the number of cases that make it to trial is because there's the procedural rules of discovery have been established where you have to basically, each side shows their hand. Discovery is so extensive and so sweeping that before you ever

get to trial, you know exactly how weak or how strong your opponent's case is. So they don't actually even bother to go to trial. Once discovery is over and you see who's got the better case, then you move on to a settlement phase, typically. If the settlement doesn't come to fruition, which it almost always does, they come to a negotiation and an agreement and that person pays that person. Again, this is a civil case. If they can't come to an agreement, then it goes to trial. But they almost always come to an agreement because one side is clearly almost always better off than the other side as far as legal standing goes. Yeah, I mean, it's funny. I never thought about it until you said they have all their cards out.

It'd be like a game of poker played face up. You get dealt and they're like, why bother even playing this hand? We know what you have, but I imagine sometimes even there are, like you have poker players, there would be prosecutors or defendants that say, I'm really good at bluffing. I'd kind of like to go through with this and see how I do. Yeah, I'm sure all the Morgan and Morgan people love to bluff. But it's kind of like if you're going to use a poker analogy, it's almost like you would fax the other poker player that you just pull the jack of clubs, essentially, just little by little. Yeah, lawyers love to fax. They love to bluff, they love to fax, and they love to drink until they get

ruinously drunk every day. Yeah, in charge by the hour. The Supreme Court has encouraged summary judgments. So that's also kind of sped things along. And then contracts, there's a lot of civil cases that are based around disputes, like contract disputes. And a lot of contracts these days, contracts these days, why does it sound so wrong? It's so right, though. It is, though. They have like direct language in there that says, hey, if, and especially when you're dealing with big corporations, they're very fond of saying like, hey, if anything ever happens between us, you're signing something here that says that we don't have to go to jury trial, because, and we'll talk more about corporations, but historically, people aren't shy about sticking

into a corporation. Right. Yeah, corporations do not like to go in front of juries, but that contract thing, it's like you very frequently agree to go to arbitration or mediation, right? So that's the civil side, right, Chuck? Yeah. Okay, so when it comes to the criminal side, it actually gets a lot darker, because the reason why so many people cop a plea, 90%, you said cop a plea, is twofold. One is they issued sentencing guidelines in the 80s that really, like you can really go to jail for a really long time for a variety of crimes, but they included a little plum in there that said if you quote, accept responsibility for your crime and plead guilty, you're going to get a much lower sentence or lesser sentence, and here's what it

is. So there's like a menu that prosecutors, if you ever watched Law and Order, they always do this, like every episode, they'll tell you like what you can get if you go to trial, and then they'll tell you what they'll give you if you cop a plea. There's actually like guidelines that say that. It's not necessarily like the prosecutor of the DA who's saying like, I don't know, let's say a month or something like that. There's guidelines for that. And so most people are like, I'm not going to roll the dice here, because there is a study, Chuck, that found that convictions after being tried, if you go to trial and you're convicted, you typically get five times greater the sentence than you do if you cop a plea deal. And believe me, the prosecutors are telling people

that every single time. I have never seen Law and Order. What? I bet you anything, this is how they say it. If you plead, you'll get a three to five maximum. But if you don't, and they always say this, you're staring at eight to 10. They always say you're staring at. They don't actually on Law and Order, but I could see where you were staring at. I thought you always stared at a big sentence. What else are you going to do? They say you're looking down the barrel at. That's what Law and Order is known for. Wait a minute, wait a minute. We can't go any further. I'm sorry. You've never seen an episode of Law and Order. Not one. This show that's been around for literally 30 years. It doesn't matter. It's been around. But it's so good, Chuck. I've never seen

Judge Judy. All right. No, I mean, just because it's not really good analogy. Just because it's been around doesn't mean I've seen it. No, that's true. If you add the fact that it's been around 30 years to the fact that it's been good for the majority of those 30 years, then it's strange. I'm not saying like you're ridiculous for not having seen it. I'm just surprised. That's all. Sure. Well, the very least hasn't been on like when I'm at somewhere for Christmas vacation or something with a family member. Yeah, there is a stretch where I don't even know if A&E's still around, but there is a stretch where A&E showed basically nothing but Law and Order all day, every day. Yeah. They would just play it like they started the first one and just play them

sequentially and then start over when they got to the most recent one. Those are called the years that Chuck didn't watch A&E. Gotcha. The other thing that can cut down on criminal cases, sorry, going to trial, is that there's more pretrial detention these days. So somebody sitting around in jail waiting for a trial is much likelier to say, you know, I'd rather just go home and cop the plea. That's where it gets really dark, because pretrial detention is meant to protect the community from people who might otherwise commit another crime while they're on pretrial release or if they're a flight risk and they may not show up at trial. That's it. But it seems to be used as a tool with prosecutors to lean on

people to take a plea by saying, you could be in here for months, for years, before your trial comes up. And they'll be like, well, I don't want to sit around that long. Let's just take the plea. That's pretty bad that they do that. And actually, they found that if you are given pretrial detention, you're three times likelier to take a plea than somebody who is not detained pretrial. Right. But are the, I mean, that part makes sense. But are those people, do they not qualify as one of the two reasons? I mean, like not dangerous. Clearly, somebody's convinced the judge that, but that doesn't necessarily mean that they are in every case. No, I don't, I don't think that if you really sat down and looked case by case,

that anywhere near 100% of them are a flight risk or a risk to the community necessarily. But that risk to the community in particular, that is so sweeping in scope that, yeah, you can basically, you could anybody who's who's convicted or not convicted, but charged with a crime enough that they can keep you in jail until your trial, you can make a case as a threat to the community. Right. I got you. If you are chosen for a jury, it's probably because you were either on a voter roll, you have paid taxes, or you drive a car and you have a driver's license. There's the old wives tale that if you don't register to vote, you're never going to get called for jury service. And that's not true. You got to be 18. You got to live. You know, you got out because you didn't

live in that county. You got, you have to live in that judicial district for at least a year. And then as far as whether or not you need to be able to speak English, you have to be able to speak English enough to fill out your juror qualification forms. I would guess without help. I didn't say that. Surely. That would be my guess. Yeah, because they're not going to let your your 12 year old daughter, American born daughter come to trial with you, you know. Although they do make accommodations for people with with certain disabilities. Yeah. Yeah. If you're blind, if you are hard of hearing, they will provide a oral interpreter or a sign language interpreter for you. I read one lawyer talked about a case where

juror had back problems. So they let her lay down for the entire trial. If you want to be on a jury, they will go to pretty great links to accommodate you to make sure you can. The thing is, most people don't want to be on a jury. So there's all sorts of creative ways to get out of it. Would it be funny if the judge was like, four person, will you read the verdict? And you just hear a voice. This is like, all right, I'm getting up. And you see somebody with bed head rise from behind the jury box. You, what are some other reasons? Oh, here we go. If you have been convicted of a felony and you haven't had your rights restored yet, if you're currently charged with a felony,

I think active military usually don't. If you're a cop or if you're a government official, maybe some other public employees might be exempt. If you're, if you're over 70, a lot of times you can get out of it. If you've been on a jury in the past two years, you can probably get out of it. If you have a hardship, like, you know, if you go in there and you're like, Hey, listen, I can't miss work because I'm a single parent and I work by the hour and I literally wouldn't be able to put food on the table for my family. They consider stuff like that. Even though you do get paid, it's just almost always, it's just not very much. It's like 30 to 50 to 60 bucks a day. No, and some employers will pay you for the time you're away.

They should. They should. And I was trying to find which ones do. The only one I could find that stated it does is Amazon. But get this, they, they doc you the pay that the government paid you. So like, if you got paid $50 a day, you get your regular pay minus $50. How much does it cost you even pay that much attention? You know, it's a little crazy, but they're the only ones who definitely say yes, you don't lose any time and you don't lose any money. So hats off to them for that, at least. But I thought that that was a little penny pinching, if you ask me. It was. And you know, I get cases where it's like a small business of where it would create a legitimate hardship to pay someone for not being there. So I'm not just saying

across the board, but if you're a big company, then you should not say, sorry, go serve your civil duty and good luck paying your bills this month. Yeah. And then you end up in court for stealing bread because you had to be on a jury and your job wouldn't pay you while you were on, said jury. Stealing bread. Turn into Jean Valjean. I get that rough. Good. Also, federal employees are guaranteed to be paid for their service on a jury, their regular pay, I should say, from their job. Right. But the thing is, is actually not likely, necessarily statistically speaking, that you're going to ever serve on a jury. I think a 2012 survey found that 27% of all

U.S. adults said they'd served on a jury at some point in time in their life. So it's not like a given that you're going to serve on a jury. And actually, I think about 32 million people are called for jury duty in the United States every year. That's federal and state courts. Eight million of them report. Right. So that means, what, 24, 26 million? No, 24 million. I got it, finally. Actually, even show up, just don't show up, I should say. That scares me. I would be so afraid to just not show. Yeah, for sure. I'm too much of a rule follower to just roll the dice like that. Exactly. But of those, eight million that do show up, only 22% of them are selected as rural jurors. Rural jurors. Oh, man. I was watching those episodes. Rural jurors. None of them knew

how to spread it was even what she was saying, right? They had to find the box. Right. So, yeah, I think I saw on 538, you have like a 0.09% chance of ever being selected for jury duty, or sorry, in a given year. By the way, that was a 30 rock reference that people are frustrated. Yeah, right now. Go check it out. Now, we should talk about a very interesting part of the jury process, which is called jury selection. Or if you're old school, or French, you might call it voir dire. And I watched a lot of attorney videos about voir dire. And again, this is the process by which attorneys can go in, ask questions of a potential jury pool, to whittle it down to the 12 plus a few alternates. And I was naive enough to think up until today, that all they were trying

to do in voir dire was to just get impartial people in there that wouldn't have a real slant in the case. And what I learned from watching every attorney video that I saw was they are, every single one of them are looking to get jurors on their jury who will be sympathetic to their case. Yeah, they're trying to to slant the case. They're trying to slant the jury box as much as possible in their favor. Yeah, so the voir dire process is actually pretty controversial. But they can ask you all sorts of questions. I've read that there's questionnaires that they give out now that are asking increasingly like bizarre questions like what's the last three books you read? I saw a question that one prosecutor very frequently uses is, who do you respect that

somebody we all know more than anybody else? And she said that most people say their grandmother and she just dismisses them immediately because they clearly can't follow directions because it said who we all know, right? Oh, right. True question. Right. They'll also scrape your social media. They'll do whatever research they can on you to see how you're going to vote or to try to just kind of suss out based on who you are, how you present yourself, whether you're going to be rational. And if you are going to be rational, which direction you would likely to go? Yeah, Olivia found a guy, an attorney who basically sort of gives advice to other attorneys on what to do. And he's like, here, you know, most people don't won't come right out and say they have bias.

So just get them in a conversation, get them chit chatty, get them talking, and they'll probably reveal something they don't want you to know or pay attention to their their body language. Look at their personality. Like if they're really super opinionated, then you might, they might be more likely to hang a jury or if they're really withdrawn and awkward around people, they might be more likely to hang a jury. And again, he was the one that said get on Facebook or Twitter, whatever, and dig up their past. Right, exactly. And so you also want to kind of lead them in ways that they are not expecting to reveal their biases. Because like you said, they're not going to just be like, I actually have a problem with poor people. They would say, so instead of

asking them, like, do you have a problem seeing poor people as you're equal? You would say like, I think we can all agree that we have trouble seeing poor people as our equals, right? And then just see who nods emphatically. We're all guilty of this, right? Right, exactly. That's kind of what they would do. And then interesting, you know, or everybody raise your hand, that kind of thing. So they're really trying to massage out of you who you really are in ways that you might not even realize you you really are until they get to the people that are they think are least likely to vote against their client. And I saw it described as not selecting a jury, you actually deselect potential jurors until you end up with 12 people left plus the alternates. Yeah, that's a good way

to look at it. There's something else called peremptory challenge that and here's it's legally speaking, you can't eliminate someone on the basis of race or sex. And a peremptory challenge is when you say, listen, I just want to throw this person out. And I don't want to give a reason why we each get a certain number of these that we don't have to explain. And that gets really tricky when you're talking about race or sex, because basically, all you have to do if someone if the other attorney says, well, wait a minute, I object to your peremptory challenge of this juror potential juror, because they're black. And that's the only reason you did that. And all the other prosecutor or whoever defendant has to do is say, Oh, well, that's not the reason it's because of

this. Right. And they basically are, I mean, it's not rubber stamped. But that's kind of all you have to do is just defend it with one other reason. Yeah, that's all based on an 86 Supreme Court case called Batson versus Kentucky, where prosecutors used preemptive challenges to remove all four African American potential jurors from the jury. And the defendant was an African American accused of burglary. So they tried to basically root out anybody that they thought would would would vote against the guy's prosecution based on race. And so that now is called the Batson challenge, the Supreme Court said you you can't do that. But they follow it up in 1995 on another one where prosecutor dismissed the two African American potential jurors from the jury pool because

of their long hair and goatee. And the Supreme Court said, that's fine, you can do that. You don't you don't have to give a reason that even makes sense. You just have to give a reason that's not based on race. Yeah, I mean, there are there are classes in training and there are manuals for prosecutors that basically say, here's how to get a black person off your jury, blame it on this, blame it on this, blame it on this, and you'll be fine. Yeah, and the US legal system has like a long standing history of like new and creative ways to keep minorities off of juries, because they feel especially if you're a prosecutor, if you can get white men in there, you're probably going to get a conviction. Yeah, that was a 2020 12 study. And this was North Carolina death penalty

cases. And it found that black people were removed from juries twice as often as members of other races. And I think now even like, if you're support like the Black Lives Matter movement, it's being debated right now whether that's enough just cause to get someone booted from a jury. Yeah, I think there's a lawsuit from a potential juror that was dismissed because of that that's not been decided yet. Yeah, but it's just so disrespectful. And then it also just presumes that, you know, black jurors wouldn't be able to set aside any bias like any other juror would be able to and just do their civic duty. It's just pretty despicable all around, but it's really, really common from what I can tell as far as trials go criminal trials. Yeah, let's talk about

this one more thing before we go to break. It is the second great band name I failed to mention the first, but I think Voidir is a great band name because I don't even think we've said what it meant in French. That means to speak the truth. It is. It's maybe the best band name we've ever run across, Chuck. So it's kind of a highfalutin band name like, oh, you know what it means to speak the truth in French. But the next great man name is death qualified. Yeah. This is if you are in a death penalty case in a capital case, a prospective juror is supposed to be death qualified, meaning that you shouldn't be on the jury if you are someone who will absolutely refuse to impose a death penalty because of your moral and ethical stance on the death penalty. And that is a whole

other ball of wax because if you root out the people who are opposed to the death penalty, all you have left on the jury are people who are in favor of the death penalty. Right. So they're not only more likely to convict, they're more likely to recommend death, which you don't really want like any, you don't want it skewed one way or the other in a case like that. But then secondly, also, I've read that just being talked to about the death penalty and asked whether you would be able to render a judgment that recommended the penalty of death if it came to that, apparently has the effect on jurors of basically making them think that the court thinks this guy is so guilty that we have to talk about the death penalty now. Right. And that it actually stacks the deck again

against the defendant's favor as far as that goes because they just go into it thinking that they're guilty and then all they're focused on is whether or not they're going to give the guy the death sentence. Right. There was a case in 1969, Witherspoon v Illinois, where the Supreme Court said that even if you have an opposition philosophically or ethically to the death penalty, doesn't necessarily mean you shouldn't be able to serve on a jury in a capital case where you basically are saying, well, listen, I may not believe in it, but I'm willing to support the laws that are in place as being valid. And so I will support those laws. Yeah. I was wondering, do you think you'd be able to do it?

I don't know. I don't want to answer that. Okay. I asked myself and I don't think I would. I'm not opposed to the death penalty and necessarily I'm kind of like wishy-washy on it, but I don't think I could recommend somebody be put to death. I just don't think I could do it. It's pretty heavy. It's super heavy. Although, I mean, context is everything, right? If this was like some ridiculously heinous crime and the person I thought the person deserved to die, maybe I could. I don't know. Now I understand why you didn't want to answer that question after I've done my spiel. Yeah, it's heavy. It is very heavy. Too heavy for this sunny afternoon for me to make that decision. Right. I will make a decision on the break though because we are 45 minutes in and we

haven't even taken our second break. Sustained. Hi, I'm David Eagleman. I have a new podcast called Inner Cosmos on iHeart. I'm a neuroscientist and an author at Stanford University, and I've spent my career exploring the three-pound universe in our heads. On my new podcast, I'm going to explore the relationship between our brains and our experiences by tackling unusual questions so we can better understand our lives and our realities. Like, does time really run in slow motion when you're in a car accident? Or, can we create new senses for humans? Or, what does dreaming have to do with the rotation of the planet? So join me weekly to uncover how your brain steers your behavior, your perception, and your reality. Listen to Inner Cosmos with

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Listen to season two of Betrayal on the iHeart Radio app, Apple Podcasts, or wherever you get your podcasts. If you're looking for someone to help you unpack Queen Charlotte a Bridgerton story, you're in the right place. It's me, Gabby Collins. Come with me, because on Queen Charlotte, the official podcast, we're stepping behind the scenes and the drawing boards of this team. To experience the life breathed into the Bridgerton prequel, listen to the leaps executive producer and series director Tom Verica took to capture the feeling that's put that lump in your throat and you've got to catch creator Shonda Rhimes. She's dropping gems, diamonds, and mics. On this podcast, we're going beyond the basic line of questioning and getting to the heart

of the show, all while appreciating the contributions of the show's creative teams and remarkable cast. Go inside each episode of Queen Charlotte a Bridgerton story with the creatives, the cast, and creator Shonda Rhimes leading the way. Listen to Queen Charlotte, the official podcast, Thursdays on the iHeart Radio app, Apple Podcasts, or anywhere you get your podcasts. Wow, Chuck, we are 45 minutes and time flies when you're talking about legal procedure. This is what I was talking about at the very beginning. There's so much interesting cultural stuff going on with juries that I had no idea about,

and one thing that's kind of come up recently is whether or not a jury has to be unanimous, which I always thought it did, but that's not always been the case, actually, and it's still not now. No, I think in 2019, the American Bar Association said that this is happening more and more, non-unanimous verdicts, and these are usually in misdemeanor or civil cases, and it's like a, depends on the state and the jury, but it's usually like three-fourths or maybe five-sixths if it's just a six-person set of juries, set of juries, set of jurors, and, you know, I didn't know that. I thought it was kind of across the board, unanimous these days. In 2020, SCOTUS said that the Sixth Amendment does require unanimous

verdicts in felony cases in the state and federal courts, but when they made this law in 2020, Oregon and Louisiana were the only states that allowed non-unanimous felonies. Everyone else basically said you had to be unanimous on felonies, and I think only one, I think only Oregon changed that since then. No, the Louisiana dug in. No, they both changed it, but Oregon said all those people who were convicted non-unanimously did a new trial in Louisiana said, nah. That's really thorny, too. But those non-unanimous laws are from the 30s that were meant to help dilute the jury so that if you did end up with minorities on the jury, you could let all the white people agree to have the minority defendant, you know, put to death or something like that.

Right. And speaking of capital sentencing, there are 27 states that have the death penalty, and almost all of them require unanimous vote for the death sentence except for drumroll, Alabama, and very recently Florida passed legislation that said, nah, we can put someone to death. It doesn't have to be unanimous. Yeah, they were like, Supreme Court, you said that it has to be unanimous with felony cases. You didn't say anything about death sentencing. So now in Florida, as little as eight of the 12 jurors agreeing that the person should be put to death means you will be put to death. You can get the death sentence if three fourths of the, yeah, three fourths of the jury says, yeah. Isn't that crazy? Yeah. And it was based as a reaction

on, well, it was passed, I should say, as a reaction to the, yeah, to Disney taking a stand on Don't Say Gay. It was meant to be a real shot across Disney's bow. Right. No, it was a response to the Parkland shooter, the Marjorie Stoneman Douglas High School shooting in 2018. The jury could not agree on giving him the death sentence. So he got life instead. And a lot of the state, both liberal and conservative, were like, that is wrong. So I think people who had wanted to pass that law for a really long time saw their chance and they did. So yeah, that's how it is in Florida right now. One of the last sort of technical things we could cover here is something called jury nullification. And that is a longstanding tradition dating back to when colonial juries

said, you know what, these British taxes and laws aren't fair. And so we're going to, even though the law says that they're guilty, we're going to refuse to send a guilty verdict. And that has happened a lot over the years. During abolition, the fugitive slave clause said, you have to help apprehend runaway slaves as a citizen if you know that they're out there and you know about it. And there were abolitionists who were like, no, I'm going to use my right for jury nullification to acquit these people because no one should have to apprehend runaway slaves. On the other hand, conversely, it's also been used by white juries to avoid convicting people who were involved in lynchings. So it definitely cuts both ways. And then also it's a way to kind

of erode at laws that are viewed as unjust or unfair. Like it was used a lot in prohibition cases. It's used a lot with marijuana possession. And you said something about the jury exercising their right. Some legal theorists say, this is the right of the jury. Like it's up to them to make a decision and to vote by their conscience, right? Other people are like, no, they're supposed to make a verdict based on the law and their understanding of the law and they're flouting that in this case. But I think, I mean, as it stands, it's not something that gets promoted a lot, but it is allowed. Like you can't really do anything about it. You could appeal, I think, but I don't know how often they do. Yeah, like it's not the kind of thing that they will,

like you inform the jury of how it all works, they don't say. And by the way, there's also this option. It's just, I guess you just got to know about it. I imagine the abortion laws, they're going to be, is going to put this to the test in the near future. I guess it depends on the state, but yeah. You know, yeah. And then this last bit is fairly reassuring, I think. Olivia has a section here titled, Should We Trust Juries? And we should generally trust juries. There's been all kinds of studies and reviews and things, and they all basically usually say the same thing, which is in general, juries are going to be, or jurors are going to be fairly rational, they're going to be methodical, and they're going to take it seriously.

Yeah. And they found, like they love studying juries, because there's a lot of like really interesting psychology to be found in like psychology of crowds and stuff by studying juries. And they found that typically juries, when they do deliberations, go one of two ways. They either go verdict driven, where they basically take a straw poll, and then they say, okay, most people think he's guilty, but these people think he's innocent. Let's figure out how to get to either all innocent or all guilty unanimous vote. Or they go evidence driven, where they kind of lay all the evidence on the table, and they go through it together, and then come to a conclusion of innocence or guilt. And it's interesting that that's it. Like those are the two, like in that

people have organically figured out how to do that. And that it's basically like there's two paths, and each jury kind of figures it out on their own. Yeah. As far as being in the room and changing someone's mind, what Libya calls the 12 Angry Men scenario from the famous movie, that doesn't happen that often. And that's the case where it's like one juror really sways the rest of the jury in a different direction. Something that does happen about 10% of the time is that the jury will end up with a different verdict than what they previously kind of like near the beginning of deliberations thought, like the whole jury will end up sort of changing their mind. Yeah. They found that pro-equital factions that are equal in size to pro-conviction

factions are four times likelier to sway the jury toward acquittal. There's just what's called a leniency effect that the jury as a whole is more likely to acquit than individual jurors. Yeah. Pretty interesting stuff. We talked a little bit about why you would want to wave a jury trial. And it's strategically speaking, it makes sense in some cases, right? Yeah. I mean, statistically speaking, you are better off with a judge, believe it or not. I think 38, this was in 2018, a Pew Research Center report said that 38% of those who were tried by a judge were acquitted compared to 14% in front of a jury. And if you're meeting with your representative and like, you know, what should I do? What should I do? They're going to say,

hey, listen, a judge is probably going to believe cops more than a jury might. If you have a really emotional case, a jury is going to be more swayed by that kind of thing. If you got like a really good story, it's easier to get an appeal if you're in front of a jury trial. If it's like technical mumbo jumbo and it comes down to that, then a bench trial is probably better because you might just end up confusing the jury. And generally, you know, it's a shorter experience. It's a little less, oh, I don't know, dramatic, I guess, when you don't have 12 people staring at you, you know? Totally. Just one angry judge. For sure. So it really does pay to really stop and think about what your case calls for, whether a bench trial or a jury trial. Just ask your lawyer.

That's right. I'll steer you in the right direction. There's another thing, too, you kind of touched on. There's a myth of the runaway jury, which is a myth that was kind of developed by defendants of civil lawsuits, especially big, deep-pocketed defendants of civil lawsuits, that these juries, they don't listen to instruction, they do what they want, and they pay out these enormous gobsmacking, business-killing awards to people who slipped and fell in the Kroger or something like that. And apparently studies show that that's not really the case, that yes, juries do tend to pay out more the larger the corporation is, or award more, I should say, the larger the corporation is. But runaway is

definitely nowhere near a reality. They still typically act within the bounds of normalcy. Yeah, they've done mock juries where they've put it to the test. And yeah, if you're, I think the one that Livia found there was an attorney who did one with a trip in fall cases, and they were mock juries, and none of it was real. But if it was like someone suing their neighbor, they awarded the plaintiff like 22 grand. If it was your local mom-and-pop hardware store where you slipped and fell, they'd award you 70 grand. But boy, if it was Home Depot or Lowe's, $100,000. Man, you know, they'd be sweating that. There's also, we talked about it before, but before we go, the McDonald's coffee case from 1994, where a woman was awarded almost $3 million for spilling

McDonald's coffee in her lap. And it was basically touted as an example of runaway jury kind of stuff. But if you are unfamiliar with that case, or you're still walking around thinking that it was a ridiculous award, you should definitely find, I don't remember the name of it, but there was a great documentary done on it that really shows just how poorly the media did their job on reporting on that. Yeah. It's a good one. It's a good one. And then one more thing, the New York Times is a really cool interactive thing where you can go on and you go through like a kind of like an interactive jury selection and decide, it tells you whether you're likely to be dismissed or chosen by the defense or the prosecution. It's pretty cool. I failed.

What'd you get? I got dismissed too. Yeah, I got dismissed. Yeah. I feel bad too, because mine was like a corporate case. And it said like you were more likely to come down in favor of the man, basically. Yeah. It was like, no, I'm not. Let me retake it. Mine did too. It said the defense loves you, but then the prosecution just cut you. So, yeah. Oh, what are you going to do? So, yeah, that's it. That's it about juries, everybody. If you're ever called for jury duty and you go, let us know how it goes. And since I said that, everybody, it's time for Listener Mail. I'm going to call this just a quick Nerf follow up. Hey, guys. Love the episode on Nerf. Brought back a lot of nostalgia from a kid being in the mid to late 90s. I know you

mentioned the Nerf balls, but you also spent a lot of time detailing the blasters. You may have overlooked two of Nerf's biggest toys, the Nerf hoop and the Vortex football. The Nerf hoop gave my brother and I hundreds of hours of fun in the basement, pretending to be MJ or Kobe, or Shaq, depending on the day. It allowed us to be NBA superstars in our own basement. So, I've never heard of the Nerf hoop, I don't think. I was just about to say, I can't believe we failed to mention the Nerf hoop. I didn't have one. I had versions of it, I guess. Like, you hanging on a door. Yeah, you had the Sears Roebuck version. Probably. And then it came with one of those original Nerf balls is like the basketball. Yeah, maybe I did have one of those.

If there was ever somebody in an 80s movie who was like trying to like hash out something in like a bowl session, somebody was shooting hoops on a Nerf hoop. Or they have one of those on like the edge of their waist basket. Right. For like, you know, stuff for the cylindrical file. Yeah. The Vortex. Me and I feel like I was podcasting with my dad just then. The Vortex was allowed to be, allowed us to be NFL quarterbacks when we wanted to be throwing it further than we ever could, a regular football. The Vortex Howler was particularly fun. It's it whistled through the air making unmistakable sound I can still pick out today. I remember the Vortex. I still have one. It's a it's a little small football with a big long sort of rocket

tail fin. That made a Wilhelm scream as it went through the air. It did. And you can really chunk those things here a lot of fun. So this is a sandwicher listening starting in 2020 and just passed into two, I'm sorry, 2011. So I guess they're going backwards in there. Yeah, I gotcha. I gotcha. To start in 2020 started the show though in 2006 and is now five years in up to 2011. Yeah, that was Kevin. Kevin from McKinney, Texas will hear this and by my math a couple of years. Very nice. Thanks a lot, Kevin. You time band it. And if you want to be like Kevin and point out that we forgot something about your childhood, we want to hear it. You can wrap it up, spank it on the bottom and send it off to StuffPodcast at iHeartRadio.com.

Stuff You Should Know is a production of iHeartRadio. For more podcasts on my heart radio, visit the iHeartRadio app. Apple podcasts are wherever you listen to your favorite shows. Hi, I'm David Eagleman. I have a new podcast called Inner Cosmos on iHeart. I'm going to explore the relationship between our brains and our experiences by tackling unusual questions. Like, can we create new senses for humans? So join me weekly to uncover how your brain steers your behavior, your perception, and your reality. Listen to Inner Cosmos with David Eagleman on the iHeartRadio app, Apple podcasts, or wherever you get your podcasts. On Queen Charlotte, the official podcast, we're stepping behind the scenes and the drawing boards

of this team to experience the life breathed into the Bridgerton prequel. Listen to the leaps executive producer and series director Tom Verica took to capture the feeling that puts that lump in your throat. And you've got to catch creator Shonda Rhimes. She's dropping gems, diamonds, and mics. You can listen to Queen Charlotte the official podcast every Thursday on the iHeartRadio app, Apple podcasts, or anywhere you listen to your favorite shows. Get ready! Stuff They Don't Want You to Know is back in iHeartland for another epic event. Ben, Matt, and Noel from Stuff They Don't Want You to Know are hitting the big screen in iHeartland in Fortnite. This time, they're celebrating some of the most important people in our lives, teachers. Join

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