Practice Oriented Jury Research: Guaranteed Results or a Big Ticket Data Dump?

There is such a thing as too much data.  Experts from various disciplines have commented on phenomena known as information overload, information glut, data smog, and the big data problem.  See Luciano Floridi, Information: A Very Short Introduction (2010); or see http://en.wikipedia.org/wiki/Information_overload (I know wikipedia is not a trusted legal source, but you were going to start researching there anyway, so I included it for your ease).  A few of the documents problems associated with information overload include:

·         burdening company executives with so much data that they cannot make decisions for the company in a timely manner 

·         overwhelming the innate capabilities of the human brain; and 

·         storing and transmitting big data requires large amounts of energy and the emission of pollutants. 

In the legal profession, there is a copious amount of data regarding jury research both for academic purposes (e.g. testing the adequacy of our system, suggesting possible reforms) and practice oriented purposes (e.g. jury consultants and jury research for an actual case).  This series of posts will inquire into (i) whether practice oriented jury research is beneficial or another example of information overload, (ii) whether the legal profession actually has an obsession with practice oriented jury research, and (iii) whether the legal profession (as in practicing attorneys and firms themselves, as opposed to a regulatory body) should consider reforming its approach to practice oriented jury research.

            Even a third year law student with five months of practice experience such as myself knows that in the legal profession, resources are limited and lawyers exhaust them.  Probably the most limited resource of all is time, especially in litigation.  In the context of a countdown to motion deadlines or a trial setting, calendar days pass by in a flash.  Money is another limited resource in the legal profession.  While some clients in some cases are willing to pay for anything that can conceivably yield them an advantage over the opposition, the majority of clients are not.  Therefore, the majority of lawyers are performing their professional services on a fixed budget.

            When you consider that a lawyer has a fixed number of days and fixed number of dollars to perform her legal services, every action that the lawyer takes needs to be an efficient use of time and money.  Practice oriented jury research is no exception.  The average cost of a jury consultant is $250 per hour, and the average bill ranges from $10,000 to $250,000.  However, in larger cases the consulting can reach over $1,000,000.  The services that jury consultants perform range from pretrial research in the form of focus groups and mock trials, to voir dire assistance, to continued research and evaluation of the actual jury beyond voir dire and into the heart of the trial.  A mock trial alone can cost up to$20,000.

            While it is difficult to find empirical evidence of how many attorneys and firms employ some form of practice oriented jury research, presumably because they either want to keep their tactics a secret or are hesitant to disclose how much time and money they spent, there is ample anecdotal evidence to support the proposition that the legal profession is obsessed with practice oriented jury research.  At least some legal professionals feel that, “if the case is large enough, it’s almost malpractice not to use trial consultants.”  If the most confident of the jury consultants are correct when they “boast that they can predict with greater than ninety percent certitude the outcomes of trials before the evidence has been heard,”  then the malpractice sentiment would appear to be true. 

            At this point it appears (i) that most lawyers involved in valuable litigation are engaging in practice oriented jury research and (ii) that practice oriented jury research is very expensive.  Next week’s post will attempt to answer whether practice oriented jury research is beneficial or just dumps more data (for a hefty price tag) on lawyers already sifting through massive amounts of information.  Furthermore, I will examine a couple of suggested reforms for practice oriented jury research.

Juror Perspective in Deliberations

            Whether the case be criminal or civil, it is difficult, if not impossible, to predict how a jury will vote or act during deliberations. While there are many studies concerning how jurors typically act or statistics on how juries have ruled in the past, there is no way to precisely determine the outcome of a jury trial before that jury has actually ruled on the case. Each juror's perspective is the culmination of that juror's personal experiences and knowledge and this perspective inevitably effects how that juror interprets the evidence in a given case. This knowledge and experience, particularly if the juror has information that directly relates to the case at hand, effects how the juror evaluates and understands the evidence in a given case, how the juror interprets expert testimony and witness statements in that case, and how the juror pieces “the truth” together in that case. Furthermore, when the perspective one juror is introduced to the perspectives of the other jurors in a given case, each juror's perspective is influenced and may be altogether changed by the interactions that take place during deliberations–thus making verdict prediction a verifiable toss-up.

            So what can lawyers do to help persuade jurors in their favor? First and foremost, every lawyer needs to thoroughly and clearly explain the evidence and the law of the case (in lay terms, if you please) and how/why the evidence is important to the law. Of course, one must be careful not to tell a jury how to rule or how to apply the law to the facts in the case, but one can and should outline the most logical path for the jury to take to get to the “correct” answer. In doing this, it will be most beneficial for an attorney to use personable examples of everyday situations in which such evidence might present itself. As Jeffrey D. Boyd explains, a jury is more likely to understand and relate to situations that they are more familiar with, in that they will take to heart or scrutinize that which sounds correct based on their personal experiences and general knowledge about the subject. This means that if an attorney can adequately explain evidence in simpler terms or using an appropriate analogy, the jury is more likely to understand and identify with that evidence as explained by that attorney.
            Additionally, in cases where the attorney's position bears the burden of proof, the attorney must be prepared to combat opposing counsel’s argument that scenario ‘x’ happened with equal plausibility (if not more convincing) alternative, particularly with regard to the case’s overall theory as to what happened. While each party in the litigation typically already has a “story” as to what took place that brought about litigation, the important point is to have a story that sounds more likely to be true, and more plausible to the jury, so that they are better able to use their perspective and relate to your position. This can be aided by counsel’s effective use of analogy and plain language in order to relate their client to each and every member of the jury panel. When the jury relates to your client and recognizes your client’s perspective about the matter, they are more likely to side with your client, unless there is overwhelming evidence that the jury simply cannot ignore.

            Hopefully, these tips will help attorneys relate to and convince juries in their favor.

Best of luck.

This post was inspired by the writings of Vidmar and Hans in their book, American Juries: The Verdict, Chapters 6 & 8, and Jeffrey D. Boyd's article, "Focus groups and juror perspective" (Trial Aug. 2013: 20+. Academic OneFile. Web. 18 Sept. 2014).

The Texas Shuffle: A Re-Do On "Random"

Many processes in jury selections are based around the notion that a fair jury is an important part of a fair trial.  Potential jurors are subject to voir dire, where potential biases can be rooted out before trial begins.  This process allows most of the country to make sure all trials are fair.

In Texas, though, an additional process exists whereby an entire potential jury pool is removed at the request of the attorneys.  The process is known as a jury shuffle.  The shuffle allows a party to review the potential jury pool--before formal voir dire has begun--and decide if an entirely new pool would be beneficial.  The process is designed to provide a new pool to take the place of one that may seem particularly filled with bias.  But the process is not without its flaws.  

First, the process opens the door to discrimination against certain types of jurors. In his article in the Saint Mary's Law Journal, Michael Gallagher cites a laundry list of cases where criminal defendants have complained that the process discriminates against minorities in particular because it allows jury pools to be completely turned away if the prosecutor decides they want fewer minorities on the final jury. In the case of Miller-El v. Cockrell, the court noted that several former members of the Dallas County District Attorney's Office believed that the office had a systematic policy of excluding African-American venire members.  Even worse, the court also referenced evidence that the same District Attorney's office had adopted a formal policy to exclude minorities from juries. Gallagher notes that the recourse for a defendant who feels that a shuffle may involve foul play is quite limited, as many courts declined to extend the availability of Batson challenges to defendants who wished to object to a jury shuffle.  The Batson test, while notably criticized for its shortcomings in protecting minorities, would at least offer some protection to parties who may see their only real chance at a jury of their peers shuffled back into the deck.

Further suspicion that jury shuffles may be ripe with racial discrimination is furthered by the fact that the juries are shuffled without the parties knowing much about the potential jurors at all.  While the attorneys who request the shuffle the jury do have copies surveys taken by the jury pool, they don't know much else about the panel except for how they look.  It's difficult to believe that such large changes to a jury pool based solely on demographic information are all well-founded or without questionable motives.  Cases of such discrimination have popped up on a few occasions.  Of course, such discrimination has been made illegal, but all an attorney must do to side-step suspicion is provide a facially valid reason for requesting a shuffle.

Another major problem with the process is that a shuffle may only be requested once per trial.  This means that only one side has the option of requesting a shuffle. If a party has reason to believe that extreme bias exists among a jury pool, that party has the right to request a new pool.  However, if that new pool shows signs of even stronger bias, the other party is not permitted to make the same request.  The process is akin to a card game where both players analyze their cards before the game begins.  If one player thinks his cards are bad, he can request that both players get new cards, even if the other player thought his hand was fair.  If the second set of cards seems to grossly favor the player who requested the new hand, there is nothing the other party can do about it.  Unfairness in a card game is one thing, but when an actual jury ruling can be altered this way, the stakes are much higher.  

Jury pools are supposed to be random--just ask the other 49 states, none of whom allow a jury shuffle.  The jury shuffle allows one party (and only one party) to get a re-do on this random process. Without more protection against discrimination or more fairness for the other party, Texas should stop the shuffling and let the process work the way it's supposed to.

The CSI Effect and 3D Scanners

            The “CSI Effect” is a theory that states because the prevalence of crime shows (such as CSI, NCSIS, Law & Order, and one my favorites Forensic Files) people who serve on juries will place an over emphasis on forensic reports when determining an outcome of a case.  Some studies have shown an existence of a form of CSI Effect, while some have concluded such an effect does not exist. 

            But this might change especially with the advent of a new technology known as 3D crime scanners.  Juries will be able to become crime scene investigators themselves.  Using a rotating mirror, a laser beam shoots out scanning millions and millions of points and maps them on to over 250 photographs.  The result is a 3D view of the crime scene itself.  It is becoming one of the leading ways police offiers and investigators record and document crime scenes.

            Most police departments use the Leicia ScanStation C10.  The instrument shoots out a laser, which “travels over every square inch within a roughly 900-foot-diameter area, collecting 50,000measurement points per second. Afterward, a built-in camera takes panoramic photos of the entire scene. The measurement data — called a 'point cloud' — is matched with the pixels from the series of panoramic photos. The result is a color, three-dimensional rendition of the scene from which any linear measurement can be conducted with an accuracy within a quarter of an inch.”  The instruments cost about $70,000.00.  Some scanners can cost up to $125,000.00.

            Marketed as a way for attorneys to combat the CSI Effect (if such an effect exists) in that the new scanners would meet the juries desires for more forensic evidence.   However, I believe that such scanners would take away from the art of advocacy.  The traditional type of evidence presented to juries is 2 dimensional photographs and diagrams of the crime scene.  Instead of having a defense attorney argue against, for example, how something would have looked at a certain vantage point or questioning a witness’s position at a crime scene, a prosecutor need only use the 3D scanner and create the view from the witnesses’ point of view and show it to the jury.  The imagination juries are able to use when listening to various arguments and viewing 2 dimensional photographs and documents will no longer be needed. And as a result, juries who are already exposed to shows such as CSI, et al. will place an over emphasis on such technology and overlook some of the inefficiencies of the scanners. 

            But overall, if the technology is supposed to work as it is imagined, I believe it would be a great tool for bringing achieving justice, as it may prevent innocent people from being wrongly convicted.  For example, in some cases, it is already proving a useful tool in solving a crash investigation where a pedestrian was struck by a car in a parking lot.  With the advent of this technology, “forensic scientists can examine a scene at a later date for lines of sight, a bullet trajectory or even a blood spatter analysis.”

Limitations of e-Summoning

The criminal justice system is extremely ineffective at summoning citizens for jury duty. For example, less than 40% of summonses result in jurors showing up for jury duty in Dallas County. This is likely because 80% of Texans change their residency year after year. Undelivered mail is not only a nuisance, but also extremely expensive and a waste of precious public resources best spent elsewhere. To solve this problem, some have suggested e-summonsing, or to summon people for jury duty via email, social media, and text messages. Others, like Professor Browning, have argued for allowing people to be served online for all matters in his article “Served Without Ever Leaving the Computer.” These arguments emphasize the high percentage of citizens with social media accounts and the cost effectiveness of such initiatives.

The success of these proposed solutions is limited by reverse one dimensional juries, the ineffectiveness of virtual communications, and because of potential security risks.

First, a jury system that relies on summoning jurors solely through email or social media will likely result in reverse one dimensional juries. Young people may respond to e-summoning at higher rates than the old. This could possibly reverse the current trend of predominately older venire members. To resolve this problem, a county should use e-summoning as a supplement to mail delivered summons, and not a replacement. This, of course, assumes that using e-summons is effective in the first place.

E-summoning lacks ‘presence,’ or the seriousness of a letter delivered in the mail and thus may not be as effective as some believe. People ignore emails. They delete them without ever opening them. People can also block messages from certain people, especially on social media sites like Facebook. Others don’t even receive texts, or are charged for receiving them if opened. These forms of communication are extremely informal and carry with them a unique set of norms that do not apply to mail. These norms would likely decrease the effectiveness of e-summoning. Yes, you can throw away a letter without ever reading it just like deleting an email without opening it. However, the act of throwing away a letter clearly sent from a municipal government differs greatly than deleting an email with the click of the mouse. In addition, what platforms should a county use when e-summoning citizens? Email and text messages seem OK, but what about Facebook, Twitter, or Tinder? No studies show that e-summoning will increase participation rates on its own. It could supplement current strategies, but not replace mail as the main method of summoning people for jury duty. 

In addition, using e-summoning may create security risks like phishing, which would likely arise with sending out e-summons. Attempting to commit fraud through the mail system is a federal offense, and difficult to commit on a large scale. However, online hackers and ‘phishers’ from anywhere in the world can attempt to rob the identities of millions of unsuspecting people. Such fraud is highly unlikely today because most people expect juror summons in the mail.

In short, e-summoning potential jurors may result in an over representation of young jurors. It may not increase participation because of the unique formalities with online communications, and could result in new security risks. Counties that want to save money by adopting e-summoning should do so cautiously and study the effectiveness of their decision. They could start by asking citizens at the DMV (when renewing their license) or during voter registration if they want to receive future jury summons through email or text messaging. 

"We Don't Know Much About It, But We Don't Like It." Eric Garner and Michael Brown No Bills Have People Calling For Grand Jury Reform

In the last two weeks, what was once viewed as a not-so-well known rubber stamp process, has come to the forefront of media outlets and dominated lunch time conversations--the grand jury. Grand juries in Missouri and New York have handed down decisions to not indict in two high profile cases involving police officers and the use of excessive force. The news we hear about the grand jury is rare, but perhaps more rare is how often grand juries don't go forward with an indictment. Former New York state Chief Judge Sol Wachtler once remarked that a prosecutor "could persuade a grand jury to indict a ham sandwich." As people have feverishly been plugging "grand jury" into their Wikipedia search browser, commentators are beginning to ask if now is the time we start looking at grand jury reform.

The Missouri grand jury was made up of 12 randomly selected individuals, and only the St. Louis County prosecutors, those jurors, and a court reporter were present for the presentation of evidence. The Ferguson grand jury proceedings are remarkable for two important aspects of jury service: (1) the grand jury transcripts have been made public; and (2) the transcripts reveal a grand jury who viewed, heard, and ultimately made determinations much like a trial jury arguably passing its probable cause burden. 

Rule 6 of the Federal Rules of Criminal Procedure sets out the extent to which the Grand Jury Proceedings are kept secret. Missouri statute, like the Federal Rules, provides that the grand jury process, deliberations, and the transcript be kept secret. Grand jury transcripts and discussion typically only see the light of day once an indictment is handed down, and even still are subject to very strict protections. Prosecutors, jurors, witnesses, and defense (should they be so lucky to see it) are advised to not to share or disclose those transcripts or discuss them. Rule 6(e)(3)(B) for example states,

            A person to whom information is disclosed under Rule 6(e)(3)(A)(ii) may use that information             only to assist an attorney for the government in performing that attorney's duty to enforce                    federal criminal law. An attorney for the government must promptly provide the court that                 impaneled the grand jury with the names of all persons to whom a disclosure has been made,               and must certify that the attorney has advised those persons of their obligation of secrecy                     under this rule.

This practice is indicative of our extreme lengths to ensure the jury process remains shielded from outside pressures, particularly in the grand jury context of bringing cases to trial. However, Bob McCulloch, the St. Louis prosecutor handling the Darren Wilson indictment, promised citizens the transcripts would be released. Just hours the grand jury decision was announced, McCulloch made good on that promise. 

Grand jury isn’t the only process by which a case could proceed to trial. St. Louis County prosecutors could have chosen to go before a judge for a probable cause hearing. That hearing would have been open to the public, and one judge serving as a neutral would have evaluated the evidence to proceed forward. Of course, in the wake of the riots that followed the shooting in Ferguson, Missouri, the obvious concerns are there as well. Juan Cartangena, a contributor to the HuffingtonPost, believes this was the route that should have been taken. He recently posted: 

"Destroy the veil of secrecy by avoiding the Grand Jury altogether and have preliminary hearings in open court to determine indictments in police abuse cases. . . .The District Attorneys in Staten Island and Ferguson both appeared to have conducted full trials instead of probable cause hearings. They worked in the secrecy of the Grand Jury that they control with no judicial supervision in large part because they were prosecuting the very police force that they work with everyday." 

Cartangena's argument that the grand juries conducted full trials touch on another aspect that likely would not have been an issue in a hearing before the judge. The grand jury is tasked with finding probable cause to proceed to trial. It is a trial jury's role to find beyond a reasonable doubt. After, the last three months, the entire nation does indeed feel as if we've been watching the latest HLN trial series. We typically only see all the materials we've seen in a full trial, not the secrecy of a traditional grand jury hearing.  

Would response have been different had we not deferred to the grand jury? Are these precisely the kind of cases panels of our peers need to be thoughtfully looking at? Should we be glad that the Missouri and New York grand juries took such an in depth look at all of the evidence in the case before taking the nation into long trials? These are drops in the bucket of questions these two cases have brought to our nation. What is for certain is the role of grand jurors and how they make their decisions is now a ripe area for study and development. 

Basics of Jury Consulting

           Picking a jury is hard work. It’s quite a challenge to find a group of people potentially biased towards your client while at the same time trying to make it look like they are fair and impartial. How do you find the right jury for your case? What themes should you emphasize? How do you go about making your client more likeable or relatable? A jury consultant can help you with that.

            Jury consultants offer a range of services other than simply helping with voir dire, says attorney Kathryn Burkett Dickson. They can assist with case analysis, theme development, venue choice, community attitude surveys, witness preparation, opening and closing arguments, use of graphics in the courtroom, and post-trial juror interviews. With the right advice, attorneys can better choose the right terms and words to use (or avoid), good questions to ask their witnesses, and how to best present their case.

            Criminal defendants and high-stakes civil parties tend to make use of jury consultants the most. Traditionally, people who hire jury consultants are either very wealthy, they are a criminal defendant in a white collar case, or they are a criminal defendant in a death penalty case. This trend seems to be changing, however, as some judges have started approving funding for indigent defendants facing serious criminal charges. 

            There is, of course, the possibility that the jury consultants do everything right, and help you pick a seemingly sympathetic jury (for example, maybe there are many people on your jury in ethnic minorities, like your client) and help you craft a brilliant theme; but the jury ends up voting against your client.

This happened during the 2011 trial of Raj Rajaratnam, a billionaire hedge fund manager accused of insider trading. To the tune of about $300,000, the jury consultants helped the defense pick a jury composed almost completely of ethnic minorities (Rajaratnam was born in Sri Lanka), many of whom were teachers, government workers, and healthcare workers—people thought to be skeptical of the U.S. government.

In the end, the jury consultants hired by the defense got the sympathy for Rajaratnam that they were going for: the jurors stated afterwards that it was hard for them to convict him on all fourteen counts. This just goes to show how important the facts are to a case—some jury members actually felt sorry for Rajaratnam, but convicted him regardless of their emotions.

Interestingly, defendants are not the only parties making use of jury consultants. Prosecutors have also availed themselves of professional jury advice. In 2009, a Maryland prosecutor hired a jury consultant to assist in the criminal trial of a popular mayor who was an African-American woman. The prosecutor needed help building a case against a popular public figure that was in an ethnic minority.

Another benefit of a prosecutor using a jury consultant may be that he or she has some level of certainty once the case gets rolling, says expert Richard Gabriel. Prosecutors may need to be cautious, however, because it can look like the state is trying to stack the jury against the defendant.

There are many advantages to hiring jury consultants, but if the government is not willing to pay thousands of dollars for their services, it is best for you and your client to weigh the cost. There is a risk involved that the jury consultant could give the right advice and help you present the best case possible, but your client could still lose. 

How the Jury Survives in the Post-Trial Age

Due to back-logged court dockets, jury trials are reasonably inaccessible for the efficient execution of justice. Even with a steadfast resolve from the onset of an action to hold a jury trial, it may take years before a trial occurs. Nevertheless, civil litigators often come across cases in which a jury trial is preferable. The client may be a sympathetic figure or the dispute may lend better to common sense judgment than rigid legal inspection. No matter what the reason, it is critical that litigators and their clients retain access to this essential legal construct. There are several alternatives to fulfill this need, built for both pre-trial and trial-replacement. Below are three popular choices that should preserve the overarching benefits of juror input into the future.

Summary Jury Trial

As a pre-trial solution, the summary jury trial provides litigators insight into possible jury outcomes. It is built as an abbreviated mimicry of the standard jury trial.  In general, a smaller jury is selected from a pool of jurors comparable to the venue using a shortened voir dire. The attorneys then deliver opening arguments, summaries presentations of their evidence and witnesses, and finally closing arguments. The jury deliberates and provides a verdict. The attorneys may choose to alter any portion of the summary jury trial procedure. Some common variations to the jury include paneling multiple juries or requesting individual verdicts from each juror.

Aside from efficiency, the major advantage of the summary jury trial is its non-binding nature. This provides litigators a better perspective in negotiations. That said, this advantage may also be this alternative’s downfall. Because litigators are not bound by the jury’s decision, the effectiveness of the whole process is still contingent on successful settlement negotiations.

Jury Mediation

Another pre-trial incorporation of jury input is the jury mediation.  Typically, these are structured to conform to a regular mediation procedure, where the two sides meet with a third-party mediator to discuss resolution. The key difference is that a sample jury sits in on the presentation of information. These jurors then discuss their opinions on the case and provide the mediator their hypothetical verdicts when requested. The intention is that this will provide an additional talking point to assist the mediator and parties with reaching a resolution.

Jury mediation is subject to the same advantages and disadvantages as the summary jury trial; however, it affords a distinct advantage: the parties are already at the bargaining table. Summary jury trial is still a highly adversarial process, whereas jury mediation is inherently cooperative. Both provide the valuable insight of juries but jury mediation appears to minimize the downside of being non-binding.

Expedited Jury Trials

At least ten states, offer a trial-replacement to combat the non-binding nature of other alternatives. In essence, expedited jury trials are statutorily defined summary jury trials. In California's for instance, limit jury size, limit voir dire, limit appeals, and place time restrictions on all elements of the process, including jury deliberations. The concept is that expedited jury trials will help to thin trial dockets and promote the efficient use of state resources. To borrow a phrase, the jury is still out on whether these new state-run processes will succeed or attain more widespread usage.

Double-Edged Oughtness

One of the recurring themes with juries is that jurors desire to uphold justice and follow the law.  After reviewing the results of several interviews with former jurors, I noticed that almost all the jurors felt strongly about the importance of the role of the jury, and acknowledged the seriousness with which they approached their civic duty.  While taking one’s civic duty seriously is certainly beneficial, such dedication can result in juror misconduct.

An inherent dedication to upholding the law and performing one’s civic duty seems like a characteristic that plaintiffs and defendants alike would seek in a prospective juror.  However, unfavorable legal outcomes can result from even the best of intentions.  For example, the motivation to research a defendant’s criminal history could just as easily stem from a juror’s desire to serve justice as from sheer curiosity.  Unfortunately, an altruistic motivation behind misconduct does nothing to mitigate the effect of such misconduct.

In a recent decision, the Supreme Court of California reversed a jury verdict in the penalty phase because one of the jurors discussed mercy, empathy, and responsibilities as a citizen with his pastor.  (The Court's discussion of the juror misconduct begins on page 37 of the opinion).  Although the juror did not discuss any facts of the case, the advice he received from the pastor was inconsistent with the jury instructions. 

I observed from the record that the juror’s genuine desire to do what was morally right never diminished.  The juror continually answered the court’s questions honestly, and seemed eager to help facilitate justice.  There was an almost childlike earnestness in the juror’s responses to the court’s questions.  Although I now understand this type of dedication to be common among jurors, I still have difficulty reconciling this phenomenon with my view that humans are self-serving by nature.

Do certain situations trigger a heightened sense of morality?  This case involved capital punishment and a religious juror, but this same type of dedication can be found in non-religious jurors deciding cases involving much less severe penalties.  One reason could be that jurors do not gain or lose anything by rendering their verdict.  A juror only risks his or her own moral conscience by participating in the adjudication process.  While everyone wants a clear conscience, many will sacrifice their own mental health to reap external rewards or avoid external penalties.  I posit that people will most likely choose a clear conscience over a guilty conscience when all external consequences are removed from the decision-making process.

Another phenomenon that may explain this ubiquitous juror dedication is that people are uniquely able to put aside their differences when fighting a common enemy.  Groups that previously argued over the color blue are able to stand united against injustice.  Many people attribute this sense of justice to societal or familial values, while others cite a god or religion as the source.  Whatever its source may be, people agree that justice is good and necessary and that everyone deserves it.  In this respect, perhaps the notion of justice for all is the last true societal axiom.

Serving Online

There is a huge issue today with the criminal justice system, and nobody is talking about it. In many cases, especially in urban settings, over 30% percent of jury summons are going unanswered with most of those because they are not being delivered to the correct address. The Dallas County Jury Coordinator said that less than 40% of summonses turn into jurors showing up for duty. Around 20% of Texans are not living in the same residence they lived in a year ago.  More importantly, younger individuals and minority individuals are less likely to stay in the same place as compared to their older or white counterparts. The inability to reach these individuals to come play a part in our jury process is causing a very one dimensional jury, that dimension being white and older.

The solutions to this problem are not easily found, however Professor John Browning discusses serving individuals via the internet in his article “Served Without Ever Leaving the Computer” why not use that same process with jury summons? As of January 2014, over seventy percent of Americans have a Facebook account, and over eighty-five percent of the world’s citizens have an email address. These accounts are not changed at nearly the same frequency as mailing addresses. To go further, seventy three percent of Americans have phone numbers with texting capabilities as of three years ago. Why not use these advances in technology as a way to reach more people for jury summons and fix the issues we currently have with deliverability of summonses?

Many other types of service are allowed in Texas. The Texas Rules of Civil Procedure allows for “substituted service.” Service of citation by publication is allowed by the Texas Family Code. See Tex. Fam. Code Ann. §102.010. Many other parts of the world are allowing service by social media as explained by John Browning’s Article “Served Without Ever Leaving the Computer”

The issues to be dealt with would be with collecting this data for governmental use, being able to see if the juror received the message, and giving the government the necessary capabilities. However, if we sent the emails, Facebook messages, and text messages in joint effort with the mailings we currently use as our jury summons it would do nothing other than widen the net for use, and the collection of email addresses and Facebook accounts can be done in the same way as collecting mailing addresses. The likelihood of connecting with young and minority citizens would be greatly increased by incorporating new and improved techniques into reaching out to them. As it stands now, we are only handicapping the democratic system by our inability to get certain classes of citizens into the courtroom to serve their duty as jurymen. The costs of implementing the new processes of service would be minor, mass form emails, mass form texts, and possibly mass form Facebook messages based off information gathered by a census would be fairly simple, the only thing stopping us is us.

Thoughts on the need for Post-trial Juror Counseling Services

A number of recent gruesome cases in the news, especially one particularly gruesome case in Canada, as well as some of our recent class discussions have prompted me to question just what sort of services are available to jurors who have had to serve on cases that might have been psychologically traumatic or taxing.  Nationally only a small handful of states offer any sort of statutorily authorized counseling, though in recent years some more states, such as Connecticut, have experimented with pilot counseling programs.

In researching this topic, I was pleased to see that Texas, which while generally conservative on a most issues but more progressive on a number of health and civil society issues than one would immediately think, is one of the few states that offers government paid for counseling to jurors after traumatic cases.

The push for the Texas law came as a result of a mother whose daughter was brutally murdered not being able to bring herself to view crime scene photos of her murdered child that a medical examiner opined that no one should be made to see.  The mother was so concerned for the jurors after seeing their reactions to the photos that she contacted her state representative and asked him to write and push the counseling law that was ultimately enacted.

The Texas law was passed by the legislature and signed by the governor in 2007 and originally offered up to ten hours of counseling to jurors in particularly gruesome cases involving physical trauma crimes.  The law, which is discussed in more detail here, was amended in 2009 to add in other gruesome crimes, including crimes against children.  Unfortunately though, the law, while laudable, is not mandatory and only authorizes counties to offer programs and does not offer funding to counties that do offer such programs, though this has not apparently been a deterrent to many of the larger population counties in the state.

There is some significant evidence indicating that jury service is taxing and stressful in the best of circumstances and downright traumatic in many cases, and there is also evidence that some sort of counseling for jurors who have been through traumatic cases is beneficial in helping them recover from traumatic aspects of their own jury service.  Because of the gruesome and traumatic nature of many of the cases heard every day by jurors performing their civic duty one can only hope for more research into the effectiveness of juror counseling programs.

Hopefully future studies and an increase in evidence showing the benefit of juror counseling programs will motivate more states to offer and to fully fund counseling services for jurors, at least for those jurors who while performing their civic duty have to view and weigh the sort of evidence most people would probably hope to never encounter.