This Article advocates two changes to the law. First, parties should be allowed (but not required) to strike professional jurors for cause in cases involving their expertise without any additional showing of a particular bias toward one side or the other. Second, if such jurors are empanelled, they should not be “gagged.” Rather, they should be free to draw on and share their expertise as are all other jurors. This Article proceeds in four Parts. Part I discusses recent reform efforts that have fundamentally altered the jury system by opening it up to increased numbers of professional jurors. Part II examines the law on this subject and the central debates over how jurors in general--professional or not-- should and do use prior knowledge when they deliberate. Part II also explores how courts grapple with the issue of prior knowledge in the case of professional jurors. There is broad agreement among the courts that it is impermissible to challenge jurors based solely on their expertise. The courts are split, however, on how to handle professional jurors once they are seated. Some courts--most notably the influential New York Court of Appeals--require lower courts to instruct professional jurors that it would be “wrong” for them to convey their knowledge to fellow jurors even if it is material to the determination of the case, and that they must refrain from using their professional expertise to influence their colleagues during deliberations. In other words, New York courts attempt to impose a gag. Other jurisdictions, however, allow professional jurors free reign to use their expertise during the deliberation process.
Michael B. Mushlin, Bound and Gagged: The Peculiar Predicament of Professional Jurors, 25 Yale L. & Pol'y Rev. 239 (2007), http://digitalcommons.pace.edu/lawfaculty/461/.