Vol. 34 No. 02 (March 2024) pp. 12-14THE IMAGINED JUROR: HOW HYPOTHETICAL JURIES INFLUENCE FEDERAL PROSECUTORS, Anna Offitt. New York: New York University Press, 2022. 192pp. Cloth $89.00. ISBN: 978-1-4798-0853-3. Paper $30.00. ISBN: 978-1-4798-0854-0.
Reviewed by Anya Bernstein. University of Connecticut School of Law. Email: anya.bernstein@uconn.edu.
The right to a jury is enshrined in the United States Constitution, but these days juries are famously hard to find. A tiny fraction of lawsuits, whether civil or criminal, involve an actual jury (p. 28). Yet the idea of the jury continues to influence how lawsuits—even those that never get to a jury—proceed. Some of that influence is structural. For instance, a party seeking summary judgment in a civil lawsuit appeals to the abstract notion of a hypothetical jury: if a judge decides that no reasonable jury could find for the party’s adversary, there’s no point empaneling a jury at all. In that situation, the importance of the non-existent jury is, in some sense, written into legal standards, visible for all to see. But Anna Offit’s fascinating new study reveals that the idea of the jury plays an even more pervasive, less visible, role.
Offit, who is trained in both law and anthropology, conducted a long-term ethnography of federal prosecutors, putting in years as a participant observer in a U.S. Attorney’s office. Being socially embedded on an ongoing basis allowed her to observe the profession’s everyday: not just things she or her subjects already found notable, but the mundane interactions, the routine preparations, and the offhand comments that contribute to the flow of life on the job. Much of the evidence Offit brings to bear quotes from her many interviews and conversations, which clearly benefited from the familiarity she developed with her subjects and the trust they placed in her. Ethnography, as understood in anthropology, goes beyond short interactions into longer-term ongoing connections, creating social ties in which any given interview or conversation is embedded. The researcher continuously interacts with research subjects over time, taking part in their activities together. This double consciousness—as an insider participant but also as an outsider observer—can yield insights that are hard to achieve in other ways. It can give the researcher an intuitive, felt understanding of the logic behind her subjects’ practices, helping her see how particular choices or peculiar views make sense to those who enact them. Additionally, it can help the researcher notice patterns, practices, and conflicts that fly under even participants’ own radars (pp. 9-14). Offit returns throughout the book to discuss the ethnographic method and consider both its benefits and its limitations.
Ethnographic methodology, which remains rare in the legal literature, offers a rare opportunity to see how the legal process looks “from the perspective of prosecutors” (p. 23). Offit does not frame the book as an inquiry into the morality of prosecution nor as a normative solution to its problems. This is not to say that the book shies away from discussing—often with refreshing frankness and clarity—pervasive problems such as race and class inequity in American prosecutorial culture. But, as is appropriate for a work of ethnography, it is more focused on showing the ways that prosecutors themselves construct and understand the morality of their actions.
While studies have clearly shown the presence of the racial and class inequities Offit points to, her book illuminates something difficult to see from the outside. She shows that prosecutors’ ideas about what ordinary people feel profoundly influence how they pursue their work. She also demonstrates that these ideas are quite limited by prosecutors’ own limited experiences. The laypeople prosecutors imagine end up looking an awful lot like the laypeople prosecutors personally know—their friends and families. Prosecutors are surely not unique in imagining the generic person to be their sort of person. But they are unique in the way they use this imagined generic person to make hugely consequential decisions about how to wield the power of criminal law. If nothing else, Offit’s findings suggest that our legal system would benefit from familiarizing prosecutors with a more diverse array of social experiences, lifeways, and worldviews. Perhaps ethnographic work itself could be mobilized for that project. In any event, methodologically, Offit’s book—the first such study of prosecutors—helps show why ethnography is both well-suited to questions of legal practice, and probably a necessary part of a complete answer to them.
The imagined juror of the title is, Offit shows, a figment that prosecutors refer to again and again in their work. Decisions big and small—about charging, about evidence, about plea bargaining, about arguments—revolve around prosecutors’ ideas regarding how a hypothetical juror might react. Even less visibly, reference to the imagined juror is one way prosecutors navigate their own professional lives, mediating relationships with their colleagues. And it serves as a way for prosecutors to develop their sense of morality and explore the ethical implications of their work.
An Introduction succinctly summarizes the arguments and explains how Offit conducted her research. Chapter 1 turns to prosecutorial discretion—the “wide latitude” prosecutors have in deciding whether and how to prosecute (p. 18). The imagined jury, she argues, plays a key role in these decisions. She describes prosecutors testing their own instincts about the viability of a prosecution against that of jurors they imagine in the courtroom. A prosecutor might justify a decision not to prosecute by reference to a jury that would not want to convict a sympathetic defendant for a minor crime (p. 29), while another might focus on how a jury would feel about the prosecution of a well-respected person of color by an all-white investigative and prosecutorial team (p. 18). Across cases, Offit argues, prosecutors “approached nearly every aspect of their jobs” by considering the reactions of “laypeople—that is, laypeople of their own invention” (p. 32).
Next, Chapter 2 lays out some key ways these inventions figure in prosecutorial work. Ensuring a case will be “intelligible and persuasive to laypeople” helps prosecutors prioritize and organize their options (p. 34). The imagined jury also gives prosecutors a way to explore different avenues without damaging their work relationships: “Rather than explicitly critique colleagues’ opinions, lawyers frequently invoked the perspectives of hypothetical jurors,” yielding “more egalitarian and collaborative discussions” among colleagues (p. 47). Prosecutors also used imagined juries to reflect on the morality of law, voicing intuitions about ethics that were not inscribed in law and identifying conduct that was not worth prosecuting even if it technically violated “the letter of the law” (p. 34). The prospect of a jury provided “a limited ethical check on prosecutorial and investigative behavior” itself, since prosecutors looked for approaches “that will not violate jurors’ sense of fairness or goodness” (p. 34). Chapter 3 focuses on opening and closing statements—the points in a trial where lawyers lay out the narratives they want jurors to adopt. Beyond just trying to find a story that jurors would find compelling, Offit argues, imagining a jury “encouraged prosecutors to negotiate the meaning of their professional and ethical imperative to seek justice” (p. 52). This involved making it clear how a defendant’s conduct violated the law (p. 62), while also not being so “overzealous” as to violate jurors’ sense of everyday ethics (p. 65).
In Chapter 4, Offit examines voir dire, the process of jury selection; this was the only time Offit’s subjects generally discussed “race and racism” (p. 71). Rather than considering racially inequitable law enforcement, however, prosecutors focused on avoiding accusations that they had struck members from the jury pool on the basis of race—a Batson challenge (p. 71). Offit concludes that voir dire reforms that limit explicit discussions of race in jury selection have actually “kept race at the forefront of prosecutors’ thinking” as they strive to avoid Batson challenges (p. 74). Chapter 5 examines the numerous constructions of character that go into a criminal prosecution. Offit shows how prosecutors often infer detailed personalities for jurors from sparse voir dire answers about their residence, religion, political affiliations, and media diet. Deciding how to present witnesses and victims, prosecutors rely on ideas about how jurors would react to various characteristics—and they assume that jurors would react the same way that prosecutors and their close associates themselves would (p. 101). Chapter 6 then recounts one particular trial in which the judge’s imagination of jury reactions took center stage. The Conclusion considers both the way that imagining jurors allows prosecutors to go beyond legality to consider the morality of their work, and the way the diminishing role of real juries allows prosecutors to proceed on the assumption that they—mostly white male elites—and their limited social worlds suffice to represent the variety of views that could end up in the jury box.
Offit’s arguments could be even stronger if she elaborated more on how prosecutors’ imagined juries diverged from the actual juries they would likely face in a trial, exploring more directly the effects of prosecutors’ constrained worldview and social relations. Given that most criminal cases resolve in plea bargains, I also wanted to hear more about the role of imagined juries in that process (which Offit mentions but does not elaborate on). Overall, though, with clear writing and careful explanations, Offit makes a compelling case for both her arguments and her methodology.
© Copyright 2024 by author, Anya Bernstein.
