Voir Dire and the Unvaccinated

Introduction

        As courts return to in-person trials, they face new issues. Courts and litigators are wondering: can unvaccinated people be excluded from the jury? According to the American Bar Association (ABA), the case law is unsettled.

The Sixth Amendment and the Duren Test

        The Sixth Amendment guarantees the right to be tried by an impartial jury. Further, 28 U.S.C. § 1861 requires juries to be “selected . . . from a fair cross section of the community.” To determine that a jury doesn’t represent a fair cross section, the moving party must satisfy the Duren test. Under Duren, they must show (1) the excluded group is “distinctive”; (2) an underrepresentation in juries compared to the community; and (3) systematic exclusion of the group.

        Applying Duren to vaccination requirements, the second and third prongs are met. If vaccination is required, then unvaccinated people are systematically excluded. Moreover, if all unvaccinated people are excluded, then the amount of unvaccinated people on juries will not match the amount of unvaccinated people in the community, since the United States is not fully vaccinated. Thus, the true controversy lies in Duren’s first prong.

The Unvaccinated: A “Distinctive” Group?

        The Supreme Court hasn’t defined what makes a group “distinctive” under the Sixth Amendment. The only “distinct” groups include gender, race, and ethnicity. The law on what makes a group “distinctive” differs by jurisdiction. 

        While vaccination is not an immutable characteristic, there are certain trends which many unvaccinated people share. Per Thompson Reuters, the unvaccinated are more likely to be young, male, not Caucasian, not college educated, and Republican. Initially, vaccination rates featured racial disparities which caused some courts to reject vaccination requirements. However, these disparities have narrowed. According to the CDC, there is a 13% difference between the second most vaccinated people group, Hispanic and Latino Americans at 77.8%, and the least most vaccinated group, American Indian or Alaskan Natives at 64.8%. Currently, the biggest disparity is between political party associations. Recently, a Gallup poll concluded that 92% of Democrats are vaccinated, while 56% of Republicans are vaccinated. Thus, vaccination status is subject to identifiable trends.

What Courts Have Said…and Not Said

        As previously mentioned, the Supreme Court has not determined whether the unvaccinated are a “distinctive” group. While the ABA reported that most courts allow vaccination requirements, their data did not include courts which never considered the issue because no judge or litigant requested its consideration.

        The most high-profile exclusion of unvaccinated jurors occurred in the Theranos trial, where nine members of the jury pool were dismissed by the judge (Bloomberg). However, the prosecution and defense both supported the decision.

Importantly, a Delaware criminal court has held that unvaccinated jurors may not be excluded from the jury (see AP). If the Delaware civil courts follow, this could be the prevailing trend in business litigation suits. 

Conclusion

        Thus far, the pattern of juror vaccination requirements appears to mirror the political patterns of vaccination status. All eyes should look to the Supreme Court to resolve this issue. But the Court’s ruling might be foreshadowed by a quote from a 2020 ruling: “even in a pandemic, the Constitution cannot be put away and forgotten.”