If you were asked to describe the American justice system, how would you describe it? Does your description include the phrase “jury of peers”? Having a fair jury is seen as a fundamental part of the justice system. However, as Last Week Tonight with John Oliver (August 16, 2020) highlighted, jury fairness is threatened at two key points in the jury process.
1. Jury Pool: The jury process starts with developing a list of people to potentially call for jury duty, known as a jury pool or venire. Each place has its own rules for compiling the jury pool, and the rules that a place uses can really influence what types of people serve on a jury. For example, think about three groups of people: drivers, voters, and welfare recipients. When you think about these groups, you probably imagine three totally different groups of people. How likely is it for an individual to be on all three lists? If a place uses only one or two of the lists, it can substantially change socioeconomic and demographic information of its potential jurors. Oliver discusses the additional concern about how these jury lists are maintained. For example, he highlights programming errors in the list that have led to entire cities or counties from jury pools. Often these excluded groups are predominantly minorities. And it might be impossible for defendants to learn about how the jury pool is created (through a process known as discovery; Chernoff, 2016).
2. Jury Selection: Once you’ve been called for jury duty, you go through a process known as jury selection or voir dire in order to narrow down the pool to a group of six to twelve people (the number of jurors also changes based on jurisdiction). During this process, lawyers exclude people they do not want on the jury using challenges (challenges can either be for cause or peremptory). Although these challenges legally cannot be based on race or gender, lawyers often come up with other reasons to exclude people (some notable examples: being too young or old, being single or married, living in a “poor” part of town, wearing a “puffy” coat, and – my favorite – having a hyphenated last name).
Therefore, there is clearly potential for bias in the jury system, so the question becomes what does the bias mean? In practice, the jury system consistently excludes people of color, especially Black people, from serving on juries (the Curtis Flowers case is an extreme example of this). Not only is this a violation of the rights of the potential juror being excluded, it also is unfair for defendants. Oliver highlights a study finding that all-White juries convict Black defendants at a significantly higher rate than they convict White defendants (Anwar, Bayer, & Hjalmarsson, 2012). Adding just ONE Black juror reduces the unfairness. Oliver also shares a clip of Professor Samuel R. Sommers, who describes studies that have shown that diverse juries operate more fairly, and engage in deeper, more meaningful conversations before reaching a verdict.
Although we promote the ideal of a fair jury of peers, it is not occurring in practice. There is consistent bias against minority jurors during both the jury pool development and jury selection, and this bias has major consequences for minority defendants. If we continue favoring all-White juries, despite evidence showcasing their significant bias, then we will be adding fuel to the fire of a criminal justice system already heavily biased against Black people – on either side of the jury box. As a system, we are regularly eliminating potential jurors that come from groups that are overrepresented within the justice system and underrepresented in terms of legal voice. And now we need a change, which can hopefully be triggered by Oliver’s thoughtful examination.