My book group recently read “To Kill a Mockingbird,” the Pulitzer-winning novel by Harper Lee about a young girl growing up in Alabama in the 1960s. Her father, Atticus Finch, is a lawyer and is assigned by the local judge to defend a Black man accused of rape by a young white woman.
It is a beautifully written account of rural southern society and the escapades of the narrator, Scout, her brother Jem, and their friend Dill. But the action centers on the trial of the man, Tom Robinson, which the children sneak into the courthouse to watch, sitting in the balcony with the Black spectators.
It should come as no surprise that, despite Atticus’ skillful examination of the witnesses to show the inconsistencies in their accounts and the impossibility that events occurred as they describe them, Tom is convicted.
There is an interesting New Boston connection to this book—the late Horton Foote, who won an Academy Award for writing the screenplay for the movie, was a longtime New Boston resident. Back in the day before the internet and streaming services, my father arranged to rent a copy of the film, shown on a reel-to-reel projector upstairs at the New Boston Town Hall.
As I read the book, which I had not done for many years, it struck me how realistic the courtroom scenes were. The one aspect which, although realistic for the time, is quite different from today, is the composition of the jury—all white male farmers. At the time, neither women nor Black people were allowed to sit on juries, and educated professional men and business owners were exempted.
So even though there was more than enough reasonable doubt to support a not guilty verdict, the prejudices of the jury toward the woman and her family, who were of the same race and socioeconomic background as they were, overcame an impartial consideration of the evidence.
Much has changed in the makeup of juries since then, and although they do not always reach what we would consider the objectively “right” result, the right to trial by jury is considered by most lawyers as essential to our government under the rule of law.
The Civil Rights Movement and the women’s rights movement led to requirements that juries be made up of people who are representative of the community. The New Hampshire statutes, most recently amended in 2019, prohibit discrimination in the selection of juries based on “race, color, religion, sex, gender identity, national origin or economic status.”
Other significant changes were made in 2013. Trial lawyers, particularly those who represent injured people seeking compensation, were concerned that juries were not truly representative, because they were drawn only from the list of registered voters and there were exemptions for people such as doctors and lawyers.
Those exemptions were removed, and jurors are now selected from the list of people holding drivers’ licenses or state-issued identification cards, as well as from the list of registered voters. The only current exemptions are for people over 70 (who may serve but are not required to), members of the Legislature when it is in session, and members of the National Guard.
As has always been the case, the judge and lawyers involved in a trial are entitled to certain information about the background of potential jurors, to help them decide whether they might be unduly biased in a particular case such that they can be stricken “for cause,” and judges have the discretion to excuse potential jurors for hardship reasons.
This creates a tension between the prohibition against discrimination and the natural tendency of lawyers to want jurors of similar backgrounds to their client. The Supreme Court has had to weigh in where, for example, Black people were systematically excluded from juries involving a Black criminal defendant, such as Tom Robinson.
Thus, in Batson v. Kentucky (1986), the court held that, because the sixth amendment guarantees the accused the right to “an impartial jury of the State and district wherein the crime shall have been committed,” prosecutors cannot use their “peremptory challenges” (challenges for which no reason need be given) to automatically exclude all potential Black jurors.
A more recent change to New Hampshire’s law was to allow lawyers to question potential jurors more deeply “to discover bias or prejudice with regard to the circumstances of the particular case.” Previously, only the judges were allowed to ask questions. Most lawyers agree this has been a change for the better, although some judges (and probably some potential jurors) disagree.
I continue to believe that our jury system is essential to the preservation of our democracy and the rule of law. I hope that if you are asked to serve on a jury you will recognize it as a privilege and, unless it presents a severe hardship, a duty you will accept.
