Juror Questionnaires, AD/HD, and the

Right to Privacy
by Robert M. Tudisco, Esq.
ou are an adult with ad/hd. One day you open your mailbox to find the dreaded jury duty notice. It is inconvenient; you are having difficulty managing all of your projects at work as it is, but now you are legally compelled to miss work and report for 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 questionnaire to fill out that asks for personal information about your health and mental health, including medications you take to manage your symptoms. It hardly seems right. Do you have to answer these questions about your medical information? What about your right to privacy? What should you do?
Now turn the scenario around a bit. You are not a prospective juror, but a litigant. All you want is to have your day in court. You want a fair and impartial jury to decide your case. But there is one problem—your actions, which gave rise to the litigation or prosecution, were symptomatic of your AD/HD and other co-occurring conditions. How do you know whether potential jurors will understand your situation or even know what AD/HD is? Will they be tainted by the same stigmas about AD/HD that you have faced all your life? How do you ensure that you (through your legal team) select a jury of your peers and receive a fair trial as promised in the Constitution? Jury selection questionnaires Of the fundamental principles of our judicial system, none is more important than the right of the accused to be judged by a jury of his or her peers. This principle is so important to our legal system that jury service is compulsory. In practice, however, the definition of peer is a more complicated issue.
robert 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.

As a result of 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 limiting attorneys’ direct access to jurors in favor of questionnaires to expedite decisionmaking. Jury consultants and attorneys have begun crafting questionnaires that provide the most possible information yet can be reviewed quickly. Attorneys can then spend their allotted time for direct questions to focus attention in specific areas to help them make informed choices about jurors for their respective clients. excluding potential jurors Based upon information from questionnaires and/or direct questioning, litigants are permitted to exclude potential jurors in two ways. The most common reason to challenge a potential juror is for cause. What this means is that based on the information obtained about a juror, it is clear that the person is biased toward one side or the other and therefore cannot be impartial in a particular case. Challenges for cause, if established, are unlimited. The other type of challenge is the peremptory challenge, in which a litigant may exclude a juror without giving a reason. The number of peremptory challenges is limited by state or federal law. These challenges are much more



April 2009


subjective (for example, the attorney feels that the juror might not identify with the client or particular position in the case). Traditionally, peremptory challenges do not require a reason; however, that is not a hard and fast rule. In Batson v. Kentucky and following cases, the U.S. Supreme Court ruled that peremptory challenges may not be used to exclude jurors based upon race, religion, or other “protected” reasons. Based upon this ruling, an attorney may be called upon to provide the reason for a peremptory challenge to ensure that protected reasons are not the cause. Jurors’ rights vs. litigants’ rights In trying to obtain as much information about prospective jurors as possible, a recent trend in questionnaires has been to ask jurors to provide information about disabilities, both physical and mental, along with medications they are taking. This represents a direct conflict with a potential juror’s right to privacy about disabilities and medications. Exercising the right to privacy in these instances may potentially reveal personal information and ultimately disqualify the person from serving.

While not many people would be terribly upset at the prospect of not having to participate, jury duty is still compulsory. Additionally, for the system to work, it is important for juries to represent a fair cross-section of the community. The problem is that there appears to be a bias in practice between individuals taking medication for physical health conditions versus those taking medication for mental health disorders, such as AD/HD and other cooccurring conditions. On its face, this represents a direct form of discrimination. On the one hand, the court and litigants may argue that there are practical reasons why such information is relevant. In the case of AD/HD, for example, a juror’s ability to focus and attend to crucial and complicated information is important to the fair outcome of a trial. Furthermore, impulsivity in decisionmaking may pose a distinct disadvantage to either party. When faced with a potential conflict between the rights of jurors and the rights of litigants, the court will almost always find in favor of the litigants. This is especially true in a criminal situation, where the constitutional rights of the accused are given foremost consideration.



Junial / istocK

While a juror does have a right to privacy, another question arises: How does this affect the rights of the accused to have a fair trial and to be judged by a jury of his or her peers? In the case of a criminal defendant who struggles with challenges from AD/HD or other related conditions, he or she does have an interest in finding jurors who may identify with the struggles of coping with the disorder and potentially be sympathetic to how the defendant reacts to his or her environment. The juror’s exclusion on this basis does potentially violate a defendant’s right to seek a jury of peers from a fair cross-section of the community. What makes matters worse is that a defendant in this situation may be left with potential jurors who are not educated or impartial about AD/HD and mental health disorders but instead are tainted by traditional stereotypes about individuals with disabilities. This draws a fine line between individuals who wish to exercise their right to privacy and the desire to provide a balanced, unbiased, and educated view of individuals with disabilities such as AD/HD. what you can do If you are scheduled to appear for jury duty, and during the process questions arise that involve a disability, illness, or medication, there are things you can do to protect your privacy while still actively participating in the jury process. Instead of refusing to answer questions, ask to discuss the information

privately with the judge and attorneys. If you believe you can be a fair and impartial juror for that particular case, tell the judge and offer whatever information you feel comfortable disclosing. Regardless of the outcome, if you believe the questions are phrased in an inappropriate manner, you should discuss that with the court and make suggestions for wording that would make you less uncomfortable. This will help future potential jurors deal with this issue. If you are a litigant or an attorney, especially in a criminal case, you should get it on the record right from the start if you believe that your or your client’s right to a fair trial by a jury of peers is being violated. It may be the basis for an appeal. When questioning potential jurors about mental health issues and/or medication, be tactful and respectful. 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 fair trial. Make sure that the information 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 resolved. Many remain untested by the legal system; however, it is important to raise these questions with a view toward resolving them or being prepared if conflict arises. My experience has always been that the best way to advocate for a particular position is to anticipate and understand the opposing view. Understanding all sides of an issue can often lead to resolution. ●

April 2009


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