Making Better Use of the Hardship Excuse

When potential jurors are summoned for jury duty, the presiding court has the authority and responsibility to oversee the selection (and dismissal) of the summoned jurors for various reasons. The State of Texas provides for exemptions from jury service. Aside from these statutory exemptions, the court is given the power to judicially excuse a juror who does not meet an exemption but cannot serve in what is known as the “hardship excuse.”

The Hardship Excuse

The presiding judge has the discretion to release or reschedule a juror for a personal hardship upon notice and discussion with the juror. However, in Texas, the judge may not release a juror for an economic reason unless each party of record is present and approves the juror’s release. Though intended to offer a benevolent option for jurors who find they cannot serve for personal, health, financial, or other reasons, this broad hardship excuse raises two concerns of civic duty and jury representation.

First, the judicial excuse allows for individuals to craft an excuse when they want to avoid participating in jury duty. This gives rise to a host of unique and, at times, downright bizarre excuses. Though some excuses may demonstrate an underlying bias or instability, most are seeking a way to avoid the inconvenience of jury duty. The New York Post reported the wildest excuses offered by prospective jurors in Manhattan, which included a woman whose “boob job” conflicted with jury duty, a juror who had no one to walk his dog, and a juror whose “planet did not believe in jury systems.”

Second, the hardship excuse operates to exclude representation of a portion of potential, low-income jurors, which wholly disrupts the representative nature of the panel. As discussed more fully by SMU’s Anna Offit, prospective jurors who face an economic hardship are more likely to come from minority communities. For example, Offit points to a study conducted in federal court in Dallas, Texas, in the 2000s, finding twice as many Hispanic jury respondents as white respondents reported it was difficult to spend time away from work to serve on a jury. The racial and socio-economic demographics are closely intertwined and result in an underrepresented jury by both race and class

Necessary Reforms

Practically speaking, judicial discretion as to juror exemptions is a necessary element to serving individual jurors and the individual parties of a case. However, this discretion could be more structured to better protect the representation of a jury.

First, states can provide more guidance as to the scope of the judicial discretion of the judicial excuse provision. In Texas, this could include defining areas that a judge could use the judicial excuse. There have been proposals to limit this area of excuse to specific types of hardship such as defined economic impact or illness.

Second, Texas could provide more assistance for jurors facing economic hardship. Most will agree jury pay is insufficient to make any juror whole for their service, but Texas could consider avenues to provide further assistance where a legitimate economic hardship is brought before the court and parties. This could be through additional financial assistance, employment protection, or expanded compensation requirements for employers. This also could be accomplished through a judicial commitment to efficient jury selection and limited trial time to best use juror’s time without requiring service over multiple days.