Clemens Jury Selection Showcases Differences Between the Canadian and American Criminal Justice Systems

Former superstar pitcher Roger Clemens is on trial for perjury.  The allegations are fairly straightforward.  Clemens gave sworn testimony to the United States Congress and said he never took performance enhancing drugs (steroids).  Federal prosecutors are saying that’s a lie.  Since he was under oath, if he is found to be lying he would be guilty of perjury.  Here in Canada, perjury is very difficult to prove beyond a reasonable doubt.  I can’t see why it would be any less difficult to prove in a United States federal court.

The potential jurors in the Clemens trial are currently undergoing an intense jury selection process.  To begin they were given an 82 question questionnaire.  For those that make it to the next stage, there will be questioning by both Clemens’ legal team and federal prosecutors.  Eventually, the jury pool will be wittled down to 12 men and women who will decide guilt or innocence.

This past November I was involved in a jury trial.  The jury selection took two days which seemed somewhat long.  All we knew about our potential jurors was their name, address, and the occupation they self-reported on a questionnaire sent by the Ministry of the Attorney General (the Ontario questionnaire is meant to determine eligibility and is nothing like the quesionnaire seen in the Clemens trial, plus the answers are not shared with counsel).  The only time a lawyer would interract with a potential juror is through a process called a challenge for cause (generally used to determine if the juror has bias) which usually involves asking one yes/no or multiple choice question.  There is no voir dire process like is seen in the United States.  (Note that while the jury selection process is set-out in the criminal code, a federal statute, the means of providing a jury panel and the information provided about those on the panel falls under provincial law, thus the process may vary somewhat from province to province).

Before the trial I did a fair amount of research into how to select a jury.  I learned to watch for body language, which occupational categories may be favourable or unfavourable (it’s true that neither the Crown or defence likes teachers on a jury), as well as other sociological factors to watch for.  Ultimately, though, we had very little information to go with.  For a profession that prides itself on thoughtful decisions not based on stereotype, the jury selection process is quite instinctual and somewhat stereotypical.

Roger Clemens will have professional jury consultants helping his legal team.  I can’t think of ever hearing jury consultants used in Canada.  One thing I wonder is how useful they will be in a Canadian courtroom given the lack of information that is available to counsel.

This blog post was written by Toronto Criminal Lawyer Adam Goodman.  For more information on Adam’s practice, please see his web site at or contact him at 416-477-6793.

2 Responses to “Clemens Jury Selection Showcases Differences Between the Canadian and American Criminal Justice Systems”

  1. Simon Borys July 10, 2011 8:32 pm #

    So do you think an iPad app like IJuror ( or Jury Tracker ( would be of any use in a Canadian jury trial?

    • Adam Goodman July 11, 2011 8:11 am #

      Like any legal app, I think they can be useful if they help you stay organized. If you spend too much time fiddling with the app then it’ll probably just be distracting. There doesn’t seem to be anything those apps can do that a spreadsheet or pad of paper can’t handle, but I definitely would not be opposed to giving them a try.

Leave a Reply