What percentage of insured Americans are currently on a precribed drug? Over 50%.
How does this affect litigation? There’s an article in the August 25 National Law Journal about questioning jurors regarding what drugs they take. Consistent with this statistic, one lawyer reports that 50% of those questioned say that they are on something.
The article goes into the ramifications of such questions, HIPPA privacy issues, whether it’s not a good idea to ask because it can alienate the court, and factors affecting choices about challenging a juror or using a peremptory challenge.
The article also notes two unsuccessful appeals. The Georgia Supreme Court rejected a claim by someone convicted of murder that a juror had been sleeping at trial. The juror acknowledged that she was on medication, but the trial court declined to ask what she was taking or to excuse her. Smith v. State, No. S08A0018. In the other appeal, from Michigan, when a juror didn’t disclose taking anxiety medication, the appeal was rejected because the defense lawyers didn’t request a mistrial. Michigan v. Bradley Scott Lasco, No. 239278.
I think the lesson here is that the trial lawyer is really in control on this issue. No preservation, no argument for appeal (and even then …) . But in this Brave New World of better living through chemicals, everyone should keep in mind that the majority of people in the U.S. are on something. Yes, a lot of what people are taking doesn’t affect their thinking. But look at that list of side effects – you’d be surprised what drugs can. And just from my days on the Board of Bar Examiners, I can anecdotally say that more and more people are diagnosed with ADD, ADHD and similar conditions, many of whom I presume are on drug(s) in response.
I know that having a trial in Maine is rare (at least a civil trial), and getting to ask voir dire questions even rarer. And generally speaking, letting lawyers ask question after question of potential jurors might not be a good thing. As a law student, I participated in a criminal trial that had three weeks of endless voir dire (complete with jury experts), where some might have thought that some of the questions the lawyers were allowed to ask might have been a bit much. (It was a mail fraud case relating to alleged misreporting of test results, and the juror questions included probing the prospective jurors’ positions on lab testing of animals.)
These medical issues are always tricky. For example, nowadays we are always told about our Presidents health conditions. Again, we go over the top. I remember reading a report about President Carter and thinking, do we all really have to know that he has hemorrhoids?
So what’s fair in the trial context? Is it fair to know what your peers are on when they are deciding whether you will potentially be locked up for the rest of your life?