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Misunderstanding Fairness

Fairness means something different to everyone. If you put a group of people in a room they could probably come up with a definition of “fairness” that they all agree upon. However, it is unlikely they will all agree what “fairness” means in any given situation. Thus, when a juror says they can be “fair and impartial” that does not reveal much about their ability to serve in any particular case – other than they subjectively believe they can.

A meaningful search for a fair and impartial juror requires more than obtaining their affirmation of words drawn from case law. The investigation starts with differentiating the common definition of fairness with the requirements of “fairness” in a criminal case. To most jurors fairness includes the concept of equality. However, “fairness” to a person charged with a crime requires inequality.

Outside a courtroom, if you have to decide which of two people is telling the truth, it is unlikely that you presume one of them is innocent. It more unlikely that you would require only one person to prove their side beyond all reasonable doubts. That would not seem equitable – not fair.

However, in a jury trial involving criminal allegations, these inequitable rules are the cornerstone of our justice system. Because the prosecution has so much power, because the risk of wrongful conviction is so great (even when the prosecution is well intended), the only way a person could ever get fair trial is to require such inequitable rules. A juror’s ability to be fair is dependent upon their ability to see “fairness” this way – not by merely giving lip service to the word.