And Contestant Number 2 is.....: using a drop screen and individual voir dire to eliminate discrimination in jury selection

Introduction

Many of our class discussions surrounding the jury system and the problems it faces in everyday practice center around issues in jury selection. The topic I've elected for my paper focuses on attorney and consultant use of social media in jury selection, which grants parties the tools required to "construct" a favorable jury. As I read a post by my classmate, Shaq Grant, an interesting new prospective was brought to my attention. "Contrary to popular belief, the fundamental purpose of voir dire is not to select  appropriate jurors, but rather to eliminate potential jurors who have strong bias and prejudices that will be harmful to a party's case."

Prior to this assertion, I viewed voir dire from the incorrect perspective of building a "fair" cross section of the community from the group that arrived. However, voir dire is intended to be a random selection of community members who appear in a random order and ends as soon as a final number of jurors has been selected. From this perspective, eliminating a juror via a peremptory strike should be viewed as an obligation rather than a privilege.

Accordingly, voir dire and the use of strikes to eliminate juror bias should be reserved for those whose bias cannot result in a fair assessment of the facts rather than for those who might not be as favorable as others according to one party's counsel. A issue with the use of peremptory strikes  comes at the hands of Batson, which, as a prior post mentions, fails in its purpose of prohibiting the use of race as a basis for a peremptory strike and instead grants prosecutors and attorneys a tool to excuse a juror on that basis alone.

Individual Voir Dire 

For these reasons, certain states like Minnesota and Connecticut have implemented individual voir dire. While time-consuming, it allows the parties to weed out the actual biases of each juror in more accurate ways, and arrive at a less-bias, more fair final group. For more info on individual voir dire, see posts by Shaq (referenced above) and Hector Rios .

"Blind" Jury Selection

Another potential tool is "blind" jury selection. Suggestions have been made for double blind jury trials  wherein the jury cannot see the Defendant in order to eliminate any potential biases. All the same, blind jury selection would prohibit attorneys from engaging in discriminatory jury selection and make for more representative juries.

Conclusion

Jury discrimination on the basis of race, gender, socioeconomic status, age, disability and other physical characteristics in no way indicate a juror's assessment of their own biases. In fact, eliminating these members of society solely on the basis of these physical characteristics undermines the goal of a representative jury and results in juries "constructed" by the adverse parties rather than a representative cross section of the community.

Two potential solutions are drop screens during voir dire (and even trial) and individual voir dire, which should be considered more heavily in districts other than CT and MN.

 

Who Needs Educated Judges Anyway? Nevada and Its Developing Judicial Issue

            We spend a lot of time talking about juries, what they should be and what they represent, but it can be easy to lose sight of how they work as a cog in the machine that is criminal justice. There are a lot of different parts, but one of the most important parts is the judge. Having a judge there helps make the process operate more smoothly, and they are generally there to make sure that the trial runs in line with the principles of the criminal justice system. Not only do they play referee during the trial itself, or judge whether a plea deal is satisfactory, but they also do things like instruct the jury on the operative law and answer any questions the jury might have during deliberations. But what happens when a complex legal case comes along, and the judge doesn’t even have a legal education?

            This is a problem that is occurring more and more in Nevada. Nevada, like many other states, used to have a lot of trouble with making sure judges had legal educations in far flung rural counties. Slowly, though, as the legal profession became more common and laws became more and more complex, most states moved away from this model. But the issue persisted in Nevada, where many of their judges in rural areas still have no legal education requirement. Nevada is one of 8 states that has no such requirement. For the most part, judges that do not have legal educations are limited in what sorts of cases they can adjudicate. In Texas, for example, they are only handling very small cases, or cases where there are not many complex legal themes at play. For the most part, they aren’t dealing with cases that involve the need for jury trials. 

            The Supreme Court of Nevada, in a decision from last September, ruled that in order for a person’s gun rights to be taken away in the wake of a conviction for misdemeanor domestic violence, they should be afforded a jury trial. Of course, the deprivation of someone’s rights should be an issue of utmost importance, so it makes sense that there should be a jury trial first. And the taking away of guns from those convicted of domestic violence is a good thing as well, as who knows what can happen within the throes of an domestic argument. But the decision had what many see as an unforeseen and problematic aftermath. By requiring that a jury trial take place, Nevada courts were by a domino effect granting judges with no legal education the right to hear jury cases. 

            This is very problematic. How can a judge guide a jury through a complex legal field without having a legal education of their own? How can they help lawyers craft a jury charge, answer jurors’ questions, or help them navigate confusing case law? It seems to be asking a lot from these judges, who may not be any more educated in a complex criminal justice system than the very jurors that they are supposed to be helping. And what’s at stake is a very important thing. With specific regard to the domestic violence cases, you are choosing between taking away someone’s Second Amendment rights or the even worse outcome of allowing a potential domestic abuser to go home to his or her spouse with their guns still laying around the house. These are important decisions, and lives are literally at stake. It’s one thing to be judged by a jury of your peers, but when the judge, who is supposed to be the main source of legal knowledge to the jury and play referee during the trial, is also a peer, is justice able to be done without hindrance?

A Brief History of Non-Unanimous Jury Verdicts

The Sixth Amendment to the U.S. Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law . . . " When read closely, the Sixth Amendment only granted a criminal defendant's right to a trial by jury, but but it does not require the jury verdict to be unanimous.

In 1970, in In re Winship, the Supreme Court set the standard of criminal trials to be beyond a reasonable doubt; according to the court, the standard stemmed from the due process clause of the Fourteenth Amendment. And since it was a constitutional case, the standard applies to not only all federal criminal cases, but is also binding on all 50 states. That leads to our next question - does beyond a reasonable doubt necessarily means an unanimous jury verdict?

On the other hand, back in 1934, prompted by a notorious murder case, Oregon amended the state constitution so that "in the circuit court, ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise."

Following In re Winship, in 1972, the issue of unanimous jury verdict was brought up again in Apodaca v. Oregon. The Supreme Court held that state jury may convict a defendant by less than unanimity even though that is not the case in federal criminal trials, but how they reached that decision was an intriguing reflection of common law. Five justices out of nine held that unanimity is a requirement in the Sixth Amendment, but Justice Powell, one of the five that voted for unanimity, dissented that unanimity is not incorporated through the Fourteenth Amendment. As a result, Oregon gets to keep its non-unanimous criminal jury verdict law. On the same day, the Supreme Court also ruled on Johnson v. Louisiana, holding that Louisiana's practice of allowing 9-3 jury votes to reach a verdict is not unconstitutional.

Interestingly, in 1979, the Supreme Court ruled on the issue again, slapping Louisiana's wrist this time. In Burch v. Louisiana, the Supreme Court held that although unanimous jury verdicts are not required in state courts, a 5-1 jury vote to conviction is not enough to meet the Constitutional requirements of due process. Finally, in 2018, Louisiana amended its state constitution to require unanimous verdicts in criminal trials. But since the amendment does not apply retrospectively, Ramos v. Louisiana is now standing in

Now with Oregon as the last state standing, the Supreme Court is picking the issue up again. The Louisiana Constitutional amendment does not kick in until 2019 and does not apply retrospectively. As a result, Ramos v. Louisiana, a case challenging the constitutionality of non-unanimous jury verdicts, is once again standing in front of the Supreme Court. Although the ruling would have no implication on all of the states but Oregon, this highly anticipated decision is expected to patch up one of the last holes in criminal jury unanimity. That being said, with the direction the current Court has been taking, I suspect they would avoid making a substantial decision and punt the issue on some minute technicality instead. Here is to hoping I'm wrong!

Harvey Weinstein: The Jurors Speak

There are many theories as to how, exactly, juries reach a final verdict (according to this study, for instance, the strongest predictor of a jury’s verdict is the initial distribution of individual preferences before deliberation). In most cases, however, we may never really know how the jury came to its conclusion. Occasionally, judges may allow attorneys to interview jurors, but this is far from a certain thing and judges may also forbid an attorney from contacting the jurors after trial. Sometimes, however, particularly in high-profile cases, jurors may reach out to the media themselves to speak on the deliberation process or final verdict. In fact, we have seen this recently in both the high-profile cases of both Roger Stone and Harvey Weinstein. Often, these public comments can give us insight into how deliberation occurs and what factors were perceived as most important by the jurors.

In the case of the Harvey Weinstein trial, several jurors have already spoken about the verdict that was handed down on February 24, 2020, including a woman identified as “juror #2” and a man (juror #9) identified as “Drew”. Each of these jurors gives interesting insight into the five-day long deliberation that took place before Weinstein’s eventual verdict that found him guilty on charges of sexual assault in the first degree and rape in the third degree and acquitted him of predatory sexual assault. Drew, for instance, responded to a question about whether the jurors factored in testimony that a woman could be sexually assaulted but maintain contact with her attacker (testimony given by the same Expert Witness, Barbara Ziv, who testified at Bill Cosby’s trial). In response, Drew told the interviewer that the jury had spent quite a long time in early deliberations on these “rape myths” (the term used by Barbara Ziv) but that ultimately the jury did not consider the accuser’s prior and subsequent relationships with Weinstein and instead focused only on the singular incident. “Husbands can rape their wives,” Drew added, in explaining the jury’s decision. 

Research shows, however, that people are generally pretty bad at properly attributing the reasons for their own and others’ behavior. It seems hard to believe, after all, that the jury might have spent some significant amount of time discussing testimony that did not factor into the jury’s decision making, according to juror Drew. Similarly, Drew explained that he had personally wanted Weinstein to take the stand (the judge did give Weinstein a last opportunity to take the stand, which he refused, before the defense rested its case) but that his lack of testimony did not factor into the jury’s final verdict.

Although we are often left wondering exactly what the jury considered, these interviews (although undoubtedly carefully spoken for the media) do give some insight into the process by which juries reach their final verdicts. Whether Drew is right, that the jury considered only the evidence before it (although the American Bar Foundation suggests that civil juries, at least, are influenced by many factors), or whether Drew is merely falling prey to the same attribution error that plagues most of society, his interview gives us a first-hand look into the way jurors processes information and their experiences.

Is It Fair to Ask Juries to Rule on Patent Cases?

Patent cases have long been some of the most challenging cases to litigate. Cases often involve multiple parties, teams of attorneys, and stakes in the millions. Additionally, by their very nature, patents are often on highly technical and complex inventions. Under 35 U.S. Code § 101, a patent can only be issued on a new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof. Under 35 U.S. Code § 102, the invention must be novel in that the inventor must be the first to file the claimed invention, and it cannot have been known or available to the public more than one year before the patent was filed. Further, under 35 U.S. Code § 103, the invention as a whole cannot have been obvious to a person having ordinary skill in the art of the claimed invention before the invention was filed.

            Under 35 U.S. Code § 154, a patent grants the holder the right to exclude others from making and using the claimed invention in the United States for twenty years after the patent’s filing date. Thus, if another makes or uses the claimed invention without authorization during the life of the patent, the patent holder is entitled to sue for patent infringement. Every patent infringement suit has two primary components: validity and infringement. Although the Supreme Court has long held that courts must presume that an issued patent is valid, a patent’s validity is at issue is nearly every patent case. Courts are required to construe the language of a patent’s claims against everything that was invented before the claimed invention (prior art) before they can determine whether a patent was infringed. Additionally, a standard defense to infringement is that the patent at issue is invalid in that its components were known or were obvious to one of ordinary skill in the art before the patent was filed.

            If you struggled to reach this point, just imagine what jurors must think at a trial. Patent law itself is so complex that the Supreme Court has found it necessary to hear on average more than two patent cases a year for the last ten years. Yet juries are asked to apply these standards to complex inventions in fields such as medical devices, mechanical engineering, and computer science. Patents are often on complex, cutting-edge technologies which few, but a few times of highly specialized people understand. Take for example, a hypothetical medical device case on a patent that improves an MRI machine. For a jury to determine whether the invention was obvious, they must first determine what was known to one of skill in the art at the time of the invention. This determination requires that the jury determine what a person skilled in the knowledge of creating MRI machines would know at the time of the invention. And a person skilled in creating MRI machines may be a doctor, a researcher, a programmer, or some other highly specialized field depending on the scope of the invention’s improvement to the MRI machine.

            Our system of justice makes no attempts to create a jury of technical experts to evaluate an individual patent case. Thus, the only way that a lay juror can even begin to understand the task of determining what was known to one of ordinary skill in the art at the time of the invention is to listen to a series of experts discuss what was known in the art. And is it even fair to ask jurors to decide cases about this highly technical and complex subject matter? In 2013, congress created a specialized board at the US Patent and Trademark Office called the Patent Trial, and Appeal Board tasked with evaluating the validity of challenged issued patents. The board is composed of specialized experts with technical backgrounds often in the field at issue. From 2012 to January 31, 2020, this board has issued a final written decision for over three thousand cases. Of these cases, the board has found all patent claims invalid 63% of the cases, some claims invalid 18% of the cases, and have only upheld patents in their entirety in 19% of cases. And if these specialized experts struggle to determine a patent’s validity, how can lay jurors be asked to do the same?

Individual Voir Dire is the Ideal Way to Weed out Bias and Prejudice

Voir dire is the process by which potential jurors are questioned by either the judge or a lawyer to determine their suitability for jury service. Contrary to popular belief, the fundamental purpose of voir dire is not to select appropriate jurors, but rather to eliminate potential jurors who have strong bias and prejudices that will be harmful to a party’s case.

The actual procedures for voir dire vary widely from state to state. For example, not all states recognize the exercise of peremptory challenges as a legitimate purpose of voir dire. Other differences include the number of peremptory challenges each side gets, the requirements to strike for cause, and whether judges or lawyers conduct the questioning for voir dire.

In Minnesota, a relatively rare method of voir dire is about to be used in an upcoming trial. In a few weeks, Glenn Johnson’s trial for the fatal stabbing of two of his neighbors on March 17, 2018 will begin. Mr. Johnson is facing first-degree murder charges. Minnesota Court Rules of Criminal Procedure specify that the preferred method for first-degree murder cases is individual voir dire.

For individual voir dire, a single member of the venire is questioned out of the presence of the other prospective and selected jurors. Using this process, it usually takes about a week to choose a jury of 12 to 15 people. In some cases, the jury selection process takes longer than the actual trial.

In Minnesota, since a first-degree murder conviction carries a mandatory life sentence with no possibility of parole, the importance of weeding out biased and prejudiced jurors is extremely important. Advocates for the process of individual voir dire argue that this in-depth analysis of each individual person gives lawyers a full portrait of that person’s background and thinking processes. Therefore, it is the optimal way to expose bias and prejudice.

This line of thinking is most evident in Connecticut. While individual voir dire is relatively rare, several states allow for it at the trial judge’s discretion in capital trials. However, Connecticut is unique in that individual voir dire is a constitutional guarantee for all civil and criminal trials. Opponents of the system argue that it is time consuming, unnecessary, and unique to Connecticut. They argue that Connecticut should adopt the group voir dire system used in all other states.

However, while group voir dire leads to shorter jury selections, the primary aim of voir dire is to weed out biased and prejudiced jurors. Several studies indicate that individual voir dire is the best way to do this. One study found that bias in potential jurors best revealed via individual sequestration. Another found that individual voir dire results in more complete and candid responses without any significant increases of time.

Further, group voir dire requires asking leading questions, while individual voir dire allows for the asking of open-ended questions. Leading questions rely on potential jurors to identify their own biases. However, asking open ended questions allows for lawyers to better understand a potential juror’s bias. While it is possible to ask open ended questions in group voir dire, there is the possibility that a potential juror will “infect” the entire venire with inappropriate comments or opinions. This possibility is nullified by individual voir dire by its very nature.

Minnesota’s use of individual voir dire in first-degree murder trials to weed out bias and prejudice is valiant due to the severity of the punishment a defendant faces if they are convicted. I had never heard of individual voir dire before I read the article about Glenn Johnson’s upcoming murder trial. This process immediately piqued my interest and I felt compelled to research it further. I was surprised to find out that Connecticut uses the process in all civil and criminal trials. Connecticut’s use of this procedure appears to be the best way to weed out bias and prejudice—the primary purpose of voir dire. At the very least, all states should adopt the use of individual voir dire in capital and life sentence cases. Ideally, states should consider allowing individual voir dire in all civil and criminal cases.

Objection! The Effect of Objections on the Jury

They serve to enforce evidentiary rules and protect the right of a fair trial.  Attorneys are meant to zealously advocate for their clients, and objections are an important tool that allows attorneys to protect their clients and preserve the record.  However, jurors are often affected by objections and sometimes an objection can do more harm than good.

Objections are an important part of the trial process. Objections are one of the only ways that an attorney can enforce evidentiary rules. Objections also serve to preserve the record.  An attorney must make a timely objection if the party wants to preserve a challenge to an error.  Often times, decisions to make objections are made nearly instantaneously as the trial unfolds.  There are certain benefits and costs of using this trial tool.  If an objection is sustained, it can prevent the jury from hearing evidence that could be harmful to the party.  Even if the objections are overruled, the objection preserves the record for appeal.  Objections also serve as an opportunity to interact with the jury and put their persuasive skills on display.  Alternatively, objections serve as an interruption to testimony.  This sort of interruption can draw the jury's attention to the evidence that is being objected to and can often cause the jury to rely on or fail to ignore the information that was being objected to.

Current studies indicate that jurors are unable to disregard inadmissible evidence completely.  Even when instructed to disregard the evidence, jurors still will give weight to the evidence that was objected to and will allow it to affect their verdict.  In fact, in some cases, judicial instructions often backfire, causing the jury to become even more focused on the evidence that was being objected to.  An objection isolates the evidence, and jurors often hone in on specific moments when deliberating.  Objections often stand out in the mind of jurors because of the interruptive nature of objections.

There may be some solutions that would allow attorneys to continue to make objections without negatively impacting the jury. One solution would be to refine the judge's instructions.  As previously stated, jurors often disregard a judge's instruction to disregard inadmissible evidence and draw unwanted attention to the specific evidence, so allowing the judge to explain further about why the attorney objected and why the evidence is inadmissible and why it is necessary for the jury to disregard the evidence.  Further explanation, rather than a cold instruction, may alleviate any jury confusion.  It could also be beneficial to allow the attorney who won the ruling on the evidence to further explain their objection and why it was necessary for them to object.  Objections could be viewed by the jury as an attorney hiding information, so allowing the attorney to explain could prevent the jury from thinking that information was being hidden from them.  I plan to explore the research on this issue further and will report my findings in my final paper.

The Evolution of Pretrial Investigation of Jurors in the Social Media Age: Helpful Tool, or a Step Too Far?

            Mere days after his conviction for sexual assault and rape, Harvey Weinstein’s appeal is well under way. One focus of the appeal at this stage appears to be Juror 11, Amanda Brainerd, a novelist writing a book that the defense claims prompted her to lie to the court to remain on the jury, and convict Weinstein, all in the hopes of boosting her book’s sales – and thereby introducing to the jury a juror that would never vote “not guilty” on all counts. Interestingly, the defense claims that the judge at one point in the trial told the parties that he would dismiss Brainerd, but changed his mind after questioning her.

            The appeal highlights the controversial yet commonplace practice of investigating jurors outside of voir dire. Weinstein hired both jury consultants and a private detective agency to investigate potential jurors online, looking for any evidence of potential bias – everything from attending women’s marches to merely liking #MeToo posts on social media. Pretty much anything public is fair game in the pre-voir dire search for juror bias, and can help attorneys identify jurors who lie to remain in the jury pool, but this hasn’t always been the rule: originally, common law assumed that the oath jurors take was enough to ensure impartiality – a stance still taken in part, it seems, by the judge in Weinstein’s case, who told the defense, “I accept her answers under oath in the courtroom." That law quickly evolved in the United States to permit a voir dire process that elicited evidence of bias, and permitted attorneys to strike jurors for cause based on that evidence.

Before the internet, however, much of what attorneys learned about a juror’s background and biases had to be discovered in the voir dire questioning process, though some private pretrial investigation of jurors was happening at least as far back as the late 1960s, and the government was using the FBI, IRS, and local police departments to investigate potential jurors as far back as 1949. In that sense, the investigation into potential jurors’ public lives is nothing new; however, social media is a new beast. People behave differently online than they do in their real lives, bolstered by feelings of anonymity, and so reveal more to lawyers and investigators than they did before the advent of social media, and about more subjects than a judge would permit questioning on in voir dire, including voting history and political preference.

Some attempts have been made to limit these investigations: attorneys cannot “friend” or “follow” jurors on social media, and they may not let jurors know they’re being investigated. But the same rules that limit attorneys’ investigations may lead jurors into a false sense of security about their place in the justice system: many people would find it uncomfortable to know that, before they ever set foot in the courthouse, attorneys on both sides of the courtroom had been investigating them just as diligently as they have investigating their cases, and all without the jurors ever knowing that they were the subject of such an investigation, or even being made aware of the potential for an investigation. One scholar suggests warning potential jurors that they may be the subject of such an investigation as part of jury selection, therefore giving them the chance to adjust their privacy settings accordingly.

Of course, giving jurors this opportunity also may limit what attorneys are able discover during their pretrial investigations, which have on occasion highlighted legitimate reasons to strike a juror for cause, and which in the Weinstein case forms the foundation of the defense’s appeal. If legislatures and courts limit pretrial investigations in this way, it naturally leads to the question of whether they should, at the same time, expand the voir dire process, which trades an unknown invasion of jurors’ privacy for a semi-public inquisition about their biases and backgrounds in the courtroom, which may come with juror discomfort all its own.

For Harvey Weinstein, however, investigation into the jury has not stopped at voir dire, and one jury consultant unrelated to the case has noted that the jurors’ statements after the trial may bring to light bias and misconduct that will provide additional reasons to question the jury’s impartiality: until the appeal is ruled on, the Weinstein jurors’ social media will likely be monitored closely by both sides, whether they know it or not.

The Single Holdout Juror

When a jury is required to come to a unanimous verdict, obviously, every member of the jury must agree on either “guilty” or “not guilty.” When the jury is not unanimous and deliberations have been going on for hours (or days) creates a deadlocked jury. When the jury is still deadlocked, a judge can actually order that jury to continue deliberating to reach a unanimous verdict called a “dynamite charge.” When one or two jurors are holding out, this requirement to continue deliberations or simply to have unanimous verdict puts coercive pressure on the jurors to change their vote, and many do. The pressure placed on a holdout juror is strongly influenced by group dynamics and typically, independent minded individuals that are strong enough to overcome the group dynamic pressures of the jury.

Hung juries are rare and a single holdout juror creating a hung jury is even more rare. Although states differ by year, about 6%-15% of juries hang, and of the juries that hang, 40% have one or two holdouts. In one analysis of hung juries, researchers found three features of felony jury trials that affect the likelihood of a hung jury: “(1) evidentiary characteristics of the case; (2) the interpersonal dynamics of deliberations; and (3) jurors opinions about the fairness of the law as applied during trial.” Studies have also shown that in a hung jury with a single holdout, all ended up breaking in favor of conviction.  The holdout shouldn’t be considered “’Idiosyncratic’ or irrational” because these same studies show that the deadlocks caused by holdouts involved a lot more dissenters sharing that same verdict as the holdout at the outset and these cases involved “genuine disagreement over the weight of the evidence.”

Being the minority of a group task is stressful in any situation, but the added pressure to come to a decision and the long deliberations compounds the jurors stress. There is a significant pressure to conform with the majority that can overwhelm a juror and most do not resist. Research has shown that those who have “tasted independence had greater possibilities for coping with the mounting pressure” and the holdout jurors: (1) have confidence in their perception/experience; (2) are independent and withdrawn and/or; (3) had doubts, but felt the need to push forward. Additionally, how the specific jury operates can affect individual judgment and these group dynamics “influence jurors to change their judgments” through the information exchanged among the jurors (informational influence) and jurors conforming to the desires of the other jurors (normative influence). Under the normative influence, group dynamics affect juror decision-making and produces stress through suppression of thoughts and ideas and the added pressure to comply with the majority. This can happen through assertive jurors who may intimidate those in a minority, a “rush to judgment” without considering other arguments or simply pressure to avoid a hung jury so they don’t have to serve as a juror longer than necessary.

Because of these pressures and the influence of group think, hung juries are not very common, especially hung juries with a one or two-person holdout. It takes an independent, strong, and steadfast person to overcome such pressures, and not all are willing to take that position in a jury setting.

Individual Voir Dire

            Typically, a voir dire is conducted by asking a randomly selected panel of potential jurors questions to identify jurors who are competent and qualified to serve on that case. The main goal of a voir dire is to find jurors who are fair and impartial. In certain types of criminal cases, such as first-degree murder, the voir dire process is one of the most important phases of the trial process because the jurors that are selected will be the ones who decide the defendant’s fate. Therefore, it is imperative that the defense attorney weeds out all the potential jurors who may be biased or prejudiced against the defendant in these types of cases.

            In Minnesota, the process in which a jury is formed is drastically different in cases involving first-degree murder. More specifically, the Minnesota Court Rules of Civil Procedure provides that the preferred method for jury selection in first-degree murder cases is individual voir dire. Rather than questioning dozens of potential jurors in the same room, individual voir dire allows the judge and attorneys to question a single member of the jury pool outside of a group setting. William Ward, a state public defender in Minnesota, noted that there are “studies that say people are much more likely to be honest and forthright in answering questions either through asking follow ups about why or questions about themselves personally when it is not done in group settings” and that “[t]he goal obviously is to get fair and impartial jurors, but the real goal is to determine if there is any bias or prejudice on the people who are going to sit on the trial." In Minnesota, people convicted of first-degree murder are given a mandatory sentence of life in prison without the possibility of parole. Thus, ensuring that the right individuals are selected to serve on the jury can make or break a case.

            One issue with the individual voir dire process is that it can be very time consuming. For example, some attorneys in Minnesota noted that the process usually takes about a week and in certain cases, the selection process will take longer than the actual trial. Although the process can be quite “labor intensive,” one law professor noted that “[t]his is an in-depth analysis of each individual person to give the lawyers a full portrait of that person's background and thinking processes and so it's the optimal way to expose bias and prejudice.” Similarly, individual voir dire is a Constitutional and statutory right in Connecticut. One attorney in Connecticut noted that the “pre-screening of potential jurors by the court prior to examination based on questions submitted by counsel eliminates potential disqualifications and saves an enormous amount of time.” Thus, an argument can be made that the individual voir dire process can make jury selection more efficient and ultimately helps to ensure that everyone selected to serve on the jury is free from bias. Even though it may be time consuming, I think more states should consider implementing an individual voir dire process similar to the ones noted in this blog post.

Mom, I Don't Want to Go!-- How Courts Take Care of Parents Serving Jury Duty

A childcare center at a DC courthouse. Source: DCcourts.gov

As a few of my classmates have noted over the course of this semester, the diversity of our nation's jury pools is consistently an issue for concern amongst scholars and the trial lawyers who are at the mercy of the jury's judgments. Of course, the diversity of the jury is largely dependent on who shows up to jury duty in the first place, and attendance at jury duty can be the result of many factors. Reluctance to miss work is one. Although many states and the federal government compensate jurors, they're not required to. California, for example, doesn't pay at all for the first day, and if you're lucky enough to sit on a jury, you'll only get $15 dollars per day thereafter. Another potentially overlooked reason is a lack of appropriate childcare; for parents who are the primary caretaker of a small child, these paltry juror compensation rates are hardly enough to make showing up worthwhile.

Two Not-So-Great Options

In the United States, there are primarily two ways that courts assist parents who are called for jury duty and would like to (or must) serve--by providing childcare at the courthouse or by reimbursing costs associated with obtaining childcare. The latter is certainly less common and perhaps even less helpful. For instance, Minnesota courts allow reimbursement of up to 50 dollars a day for childcare expenses associated with serving as a juror. Although it seems generous in comparison to what other courts offer (which if often nothing at all), it works out to about $6.25 an hour if the juror serves for a full day. That's hardly the going rate for a decent babysitter or caregiver these days, and that does not take into account the fact that this is be a reimbursement and not an up-front stipend.

Some courts, however, offer childcare centers within the courthouse for parents to utilize while they’re at jury duty. Washington DC, for example, has a center that provides childcare for any adult who is visiting the court, including jurors. The childcare center is staffed full time with certified aides that must meet minimum requirements. But while these kinds of childcare centers are certainly convenient, it's hard to see how this option is more appealing to parents than just staying home. These childcare centers are essentially waiting rooms for small children while their parents are in court-- in fact, some states actually call them waiting rooms instead of day cares or childcare centers! It's not hard to see, then, why parents often choose to try to get excused instead.

Excuses, Excuses

Of course, most states have exemptions built into their juror guidelines that allow for full-time parents to avoid or at least defer their service. These states usually require some kind of proof of the particular circumstances, and while excuses are often granted, that's not always the case. New York, for instance, states on their juror website that there are no automatic exemptions or disqualifications, and that "excuses are rarely granted." And recently in California, a state judge skeptically questioned a stay at home mother who appeared at jury duty and asked to be excused because she didn't have  substitute childcare. Although the mother ended up being excused for the day, she was warned it wasn't a complete exemption--she'd have to return in a few months to perform her civic duty.

So What Should We Do?

It's clear these current alternatives don't really cut it when it comes to providing viable options for parents--either working or stay-at-home-- to arrange childcare when serving jury duty. But a truly helpful alternative will be difficult to find. It's unlikely that state and local governments will be willing to foot the bill for even a day of expensive outside childcare, and probably equally unlikely that parents will want to use the court childcare facilities, even just for a day. Unfortunately, the most likely scenario at least in the immediate future is that these jurors will continue to try to stay home, depriving the jury pool of a valuable point of view in the process.

Warning, Bias Detected: AI in Voir Dire

AI in Voir Dire

The use of AI in the legal profession is not a work of fiction, nor is it a prediction for the future. It is a reality in the present. While lawyers are likely familiar with AI designed to locate on-point cases in seconds rather than hours, AI has now moved into the world of jury selection through Voltaire and Momus Analytics. Move over Bull, HAL has arrived. How does this technology even work? Could it reduce (or even eliminate) a lawyer's bias when selecting jurors?

How does it work?

 

Without getting into the incredibly technical differences between the various programs, a few things are generally true about how they function. AI programs use data analytics to predict juror behavior and give lawyers detailed reports about the juror in real time. Both scan social media and other sources are analyzed for a detailed analysis of each juror. Votlaire, for instance,

explores all public data related to the potential juror, correlates the data against known patterns in human behaviour and then produces a detailed profile, with indications of the type of person they are and how their views and biases may be a positive or negative factor as part of a jury.

Voltaire also allows lawyers to reject the AI's presuppositions when she believes they are inaccurate, and this instantly updates the recommended jury selection and profile. Features like this allow the human factor to judge nuances and non-verbal communication that might be missed by the program.

Reducing Bias in Juror Selection

 

We know that lawyers, like everyone else, have biases--whether implicit or explicit--, and we know that these impact jury selection. If this were not the case, the Batson Challenge would not exist. Lawyer bias is normally discussed regarding the ways in which potential jurors will be biased. Perhaps having AI select jurors would remove bias from the selection process.

The AI and its algorithms were programed by humans. Are the things it highlights actually the result of an impartial analysis of human behavior, or is it giving lawyers answers to questions they already ask? If so, what if the questions themselves are biased?

A tour of Voltaire's AI's operation displays a sample set of juror analysis indicating a "Job Related Risk" because an individual works in law enforcement and a "VT Insight" that this person is interested in trophy hunting. How the AI decides what associations are important is not completely clear. Is this really relevant because deep data analysis proves these associations to be significant indicators of human behavior, or is it because most defense lawyers do not believe a police officer could be impartial in a criminal case? The profiles also include voting records? Is this because voting records are the most statistically relevant signs of behavior or because lawyers stereotype people by them?

Doubling down on the importance of these associations, Momus actually states that the lawyer's performance cannot shape jury's verdict--apparently indicating that these associations absolutely determine juror decision-making. The reasoning seems to be that associations indicate juror biases and biases determine behavior. This oversimplifies the situation.

Even if these associations were indicative of biases and not rote stereotyping themselves, we know that biases are not dispositive of behavior. Implicit bias is believed to be an excellent predictor of behavior (Sarah Q. Simmons, Litigators Beware: Implicit Bias, 59 Advocate 35 (2016)).  For instance, jurors are implicitly biased to give lessor sentences to those in their same racial group. However, where lawyers or judges explain that the case is racially charged, this awareness changes the juror's behavior and we find that implicit bias does not impact the outcome. Lawyer performance changes the juror's awareness and therefore juror behavior. Consequently, Momus, and other AI, cannot know whether such associations will even be relevant in deliberations.

Conclusion

Using AI will probably not remove the lawyer's selection bias from voir dire. Unless these AI look at raw data to correlate the most important associations, they likely only reinforce stereotypes about biases that, even if present, may be overcome by lawyer performance. Additionally, the same features that allow lawyers to change profiles based on their own observations allow biases to be programed in at the user level. In any case, lawyers are likely to value the associations provided by the AI since they are playing the odds when selecting the jury and believe these associations have served them well in the past. Even though the machines are here, it seems selection bias is welcome to stay.