The Role of Juries in Prosecutorial Discretion
In his piece “Did the Durham report’s criticism of juries go too far,” Washington Post staff writer Aaron Blake questions the suggestion made by Special Counsel John Durham in his report that that some juries may be too biased for prosecutors to bring charges in high-profile cases. In the Durham Report, released following the Special Counsel’s investigation into the FBI’s investigation of former President Trump’s relationship with Russia during the 2016 election, Durham writes “There are also reasons why, in examining politically-charged and high-profile issues such as these, the Office must exercise — and has exercised — special care. First, juries can bring strongly held views to the courtroom in criminal trials involving political subject matters, and those views can, in turn, affect the likelihood of obtaining a conviction, separate and apart from the strength of the actual evidence and despite a court’s best efforts to empanel a fair and impartial jury.” While some legal scholars believe that considering the jury’s makeup is not an unethical practice when deciding whether to bring charges, others express concern that Durham’s sentiment could erode public trust in the legal system. Others hold the view Mr. Durham’s thesis disregards the benefits of careful questioning of potential jurors by trial counsel and the judge during voir dire. Principle 11 of the ABA Principles for Juries & Jury Trials comes to mind as a model for effective voir dire.