"Researchers discovered that jury service can leave some people suffering from
anxiety or even post-traumatic stress disorder, a condition normally
associated with war veterans," reports Murray Wardrop in the London Telegraph. The article notes the recent case of Josef Fritzl in Austria.*
Should the particularly squeamish be excused from violent cases on the ground that service may be hazardous to their mental health? Would the defense then claim that this violated the Sixth Amendment right to a jury that is a cross-section of the community?
As applied to the states, at least, that right was fabricated by the Supreme Court back in 1975 in Taylor v. Louisiana, 419 U.S. 522, a case on the exclusion of women from juries. The cross-section fiction was necessary to get around the problem of the very low level of scrutiny for sex discrimination at that time and the standing problem for a man challenging exclusion of women. Both of these are no longer problems. Sex discrimination now receives a higher level of scrutiny, and parties now have standing to raise the equal protection rights of jurors. It is high time to dispense with the fiction and allow states to decide who can and who must serve on juries as a question of public policy, so long as they steer clear of the suspect and quasi-suspect classifications of race and sex.
* I was somewhat surprised to learn that Austria has jury trial. More on that case here.
Should the particularly squeamish be excused from violent cases on the ground that service may be hazardous to their mental health? Would the defense then claim that this violated the Sixth Amendment right to a jury that is a cross-section of the community?
As applied to the states, at least, that right was fabricated by the Supreme Court back in 1975 in Taylor v. Louisiana, 419 U.S. 522, a case on the exclusion of women from juries. The cross-section fiction was necessary to get around the problem of the very low level of scrutiny for sex discrimination at that time and the standing problem for a man challenging exclusion of women. Both of these are no longer problems. Sex discrimination now receives a higher level of scrutiny, and parties now have standing to raise the equal protection rights of jurors. It is high time to dispense with the fiction and allow states to decide who can and who must serve on juries as a question of public policy, so long as they steer clear of the suspect and quasi-suspect classifications of race and sex.
* I was somewhat surprised to learn that Austria has jury trial. More on that case here.
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