What Not to Wear (As a Female Advocate in Front of a Jury)

    Whether we like it or not, physical appearance is a major consideration in the work of a successful trial lawyer. Research has shown that we automatically assign to good-looking individuals favorable traits, like talent, kindness, honesty, and intelligence. Robert B. Cialdini, Influence: Science and Practice 148 (4th ed. 2001). Empirical research confirms that physical attractiveness is a benefit across all life experiences from politics, to education, to the workplace, to the courtroom. See, e.g., id. at 148-50 (citing empirical research studies); Michael J. Saks and Reid Hastie, Social Psychology in Court 156-60 (1978). The savvy litigator will understand these considerations and choose her clothing, jewelry, shoes, and hairstyle accordingly. But what happens when the general advice of "dress conservatively, simply, and inconspicuously" contradicts the essence of a particular advocate's persona, thus damaging her credibility? In her article Beyond a Reasonable Doubt: One Size Does Not Fit All When it Comes to Courtroom Attire for Women, Maureen Howard addresses this difficult question. 

    At the outset of trial, jurors, like judges, opposing counsel, and all other human beings, form quick and lasting impressions of lawyers based on very limited information. See id. To maximize appeal to and reception by a jury, lawyers must seriously evaluate and manipulate their physical appearance, even though expending time and energy on something so superficial may seem to be a poor use of time as trial approaches. See id. Because of factors such as their delayed entry to the workforce, issues surrounding female sexuality in the workplace, and gender bias and stereotypes, superficial issues like choice of dress and jewelry play out with more complexity for female advocates. 

    Traditional trial advocacy wisdom maintains that a lawyer's credibility, integrity, sincerity, and trustworthiness are her most valuable assets with the judge and the jury. See Howard, Gonzaga Law Review, Vol. 45, No. 1, pp. 209-24 at 215. Howard warns that an advocate must be authentic, or at least appear authentic, or jurors will view her as insincere, untrustworthy, and unbelievable. She logically concludes that for a lawyer to be comfortable and confident, and thus appear credible and competent, the lawyer needs to be herself. See id. When a lawyer feels uncomfortably foreign or false wearing conventional trial clothing, her credibility will be undermined to the same extent as her confidence. See id. 

Howard goes on to argue that just as jurors want to do what’s “right” and not decide cases based on “technicalities,” they will better trust the lawyer whom they believe is telling the truth—not a marketable version of the truth. Id. at 16. A lawyer who maintains her integrity in her dress and demeanor and is consistently genuine— consistently herself—is more likely to be perceived as credible and trustworthy. See id. Thankfully, a female advocate's clothing, hair, jewelry, and shoes do not have to be bland or manly. They need only be consistent with the essence of the trial lawyer’s persona, or they will ring false and be off-putting to the jury.  

"I may be deaf, but I am not dumb" - The Right of Deaf People to Serve on Juries

    Growing up, my father often used to tell me that whenever someone would question his ability to do anything, including something as essential as reading, he would always respond with, "I am deaf, but I am not dumb." The issues surrounding juror discrimination often center around discussions of race, ethnicity, and socioeconomic status, but what about those that are disabled? The blind? The deaf? 

Equal Protection and the Right to Serve as a Deaf Juror

    In Carter and Taylor, the Court recognized a citizen's right to serve on a jury as granted by the equal protection clause and, in doing so, prevented states from excluding a class of persons to serve on a jury. See Carter v. Jury Commission of Greene County, 396 U.S. 320 (1970); Taylor v. Louisiana, 419 U.S. 522 (1975.) In the early 1970s, this was groundbreaking as African Americans and women could no longer be excluded from serving on a jury. Despite courts recognizing the error in their discriminatory practices, in 1978, a federal district court rejected a deaf citizen's right to serve on a jury. See Eckstein v. Kirby, 452 F, Supp, 1235 (E.D. Ark. 1978.) 

    Unfortunately, deaf jurors are often rejected from serving or excluded from the ability to serve on a jury solely based on their disability without a proper evaluation of the entire circumstance. With advanced courtroom technology and ASL interpreters, more often than not, a deaf individual is more than capable to serve on a jury. But it is time for courts across the nation to actively provide reasonable accommodations (something already mandated by the Americans with Disabilities Act.) 

    In 2014, after arriving at the District Court of Columbia Superior Court to serve on a grand jury, the court informed Michelle Koplitz that they would not pay for an ASL interpreter for grand jury services. Instead, Ms. Koplitz's grand jury service was converted to petit jury, which is incredibly different. After filing a lawsuit based on discrimination, the Court issued an apology letter to Ms. Koplitz, explaining that this was an error. But it raises the question, Ms. Koplitz was able to file a lawsuit; what about those without the proper means to successfully carry one out? Most will not file a discrimination lawsuit, especially if it becomes a matter of national news, as Ms. Koplitz's case did. 

Can Deaf People Serve as Jurors?

    If it wasn't apparent, the answer is yes. The participation and inclusion of a deaf juror do not "destabilize the integrity of jury deliberations." With the implementation of "education programs and systematic changes," deaf people will be able to successfully exercise their right to participate in jury trials. See Napier et al., Changing the International Justice Landscape: Perspectives on Deaf Citizenship and Jury Service, Vol. 19 Sign Language Studies No. 2 pp. 240-266 (2019.) Allowing deaf people to serve on juries ensures fair trials for the accused by ensuring a diverse and representative jury. Like the United States, countries like Australia, Ireland, and the United Kingdom are finally starting to recognize the importance of including deaf jurors. While I would argue they're definitely late in enacting these changes, it is vital that we continue these conversations and further make accommodations to ensure everyone has equal access to their right to serve on a jury. 

No Jury, No Justice: When can I ask for a Jury?

A common refrain in American society is that a trial by jury is the cornerstone of our democracy and the rule of law. A jury trial is touted as one of the greatest benefits that a democracy like ours offers. But a trial by jury is a right only reserved for criminal defendants in the United States. This fundamental right guaranteed by two provisions in the U.S. Constitution: Article III, Section II, and the Sixth Amendment, does not extend to the civil context. When the Sixth Amendment states that the accused has a right to a trial in all criminal proceedings, this means all serious offenses, not petty offenses. A serious crime would be punishable by a possible sentence of more than six months of incarceration. Further, the right to a jury trial has limitations for juveniles as juvenile proceedings are considered civil cases. 

No Jury, Only Judges. Jury Trials in civil cases are not a guaranteed right and are very complex. In most civil cases, a jury trial must be requested when a complaint is filed, and a jury trial request fee is paid. There are no juries, only judges in most family law courts. Outside of Texas and Georgia, there will never be a jury for divorce. Ultimate facts have already been decided in divorce cases, and a jury would serve no purpose.

Further, juries wouldn’t have the necessary expertise to settle financial and custodial affairs. In Texas, juries can determine the value of any property in a marriage, the status of the divorce, and custody arrangements of children. Still, the family court judge deals with all other issues. Similarly, there is no jury in administrative cases like immigration, social security, and bankruptcy, and a bench trial determines these cases. Here, a judge is in a better position to judge the facts of the case than a jury.  

A Disappearing Feature. Outside of the Administrative law context, the American civil jury is a disappearing feature of our legal system as more plaintiffs are opting for bench trials. Bench trials are cheaper than other options, but plaintiffs disfavor them as they think juries will be more sympathetic to them as ordinary citizens who suffer injuries. Despite this inclination, juries often require more education on the law and handholding while judges are better positioned to sort through the facts and decide. There seem to be more advantages to trying a case before a judge than a jury. In the absence of a jury, you do not need to make a jury request, select a jury, or prepare jury instructions. Even when a plaintiff opts for a bench trial, they may end up with a jury trial because their adversary may request a jury trial. Choosing between a jury trial or a bench trial is a decision a lawyer should make with their client. 

The Batson Challenge - Very Broken and Needs Fixing

 During jury selection, an attorney can strike a potential juror from the jury pool in two ways.  First, the attorney can strike them "for-cause."  A challenge "for-cause" is exercised when a potential juror has exhibited some sort of bias towards the parties or the case at hand.  These are unlimited in number.  The second way to strike a potential juror is by exercising a peremptory challenge. These are limited in number and vary by jurisdiction.  No justification is required for an attorney to use a peremptory strike.  Because of this, it is widely known that attorneys exercise these in racially discriminatory ways -- relying on stereotypes and biases to strike the potential jurors they perceive as being averse toward their client.

As a way to combat this racial discrimination, the United States Supreme Court, in Batson v. Kentucky, held that a prosecutor's exercise of race-based peremptory challenges violated the Equal Protection Clause of the 14th Amendment.  The Court found that "purposeful racial discrimination in the selection of the venire denies the protection that a trial by jury is intended to secure."  As a result of this case, an attorney now has the ability to challenge an opposing attorney's use of a peremptory strike if they believe it was motivated by the juror's race.  This is known as a Batson challenge.

A Batson challenge has three prongs.  First, the defendant must make a prima facie case showing that a peremptory challenge has been exercised on the basis of race.  This is satisfied by producing "evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred."  If the defendant can make a prima facie case, the burden is then shifted to the prosecution.  Second, the prosecution must come up with a race-neutral explanation for why they challenged that particular juror.  This step "does not demand an explanation that is persuasive, or even plausible... but only one that is facially race-neutral."  And third, the defense as the burden of proving purposeful discrimination.  

Batson challenges are hard to win.  This is because proving discriminatory intent is nearly impossible.  Especially when any race-neutral explanation for why the juror was struck is acceptable -- the North Carolina Supreme Court has stated that "as long as the state's reason appears facially valid and betrays no inherent discriminatory intent, the reason is deemed neutral."  The most difficult prong of the Batson challenge, part three, requires the defendant to both (1) prove the strike was actually motived by race, and (2) prove that the prosecutor's race-neutral explanation is a lie.

While Batson was a step in the right direction, it is in no way effective at stopping racial discrimination in voir dire.  One modification that will help is changing the "discriminatory intent" element to a "discriminatory impact" element.  Instead of focusing on what the prosecutor's motivation was behind the peremptory challenge we should focus on the impact the challenge itself has on the jury pool.  Because this is what we are actually trying to combat isn't it?  To stop the discriminatory effects of peremptory strikes -- not so much the hard-to-prove discriminatory intent behind them.  This is just one of many examples of how we can enhance the Batson challenge system.

 Coerced Confessions & Jury Impressions

    

    The issue of coerced confessions and subsequent jury impressions can not be discussed without reference to the Supreme Court case of Arizona v. Fulminante. Oreste Fulminante was suspected of murdering his stepdaughter, but before any arrest for that crime he was incarcerated for an unrelated crime. While serving his time, Fulminante became friendly with another inmate who had an agreement with the FBI to collect information on other inmates. Despite protestation of his innocence initially, Fulminante admitted his guilt when the other inmate offered him protection in exchange. At Fulminante's trial for the murder, he disputed the admittance of his confession on the basis that it was coerced. The trial court admitted them and Fulminante was convicted and sentenced to death. On appeal, Fulminante was successful in getting a retrial without the use of the confession. The Supreme Court reviewed the case and described the initial admission of the coerced confession as "prejudicial error.""

    While it is customary to exclude a confession that "was elicited by physical violence or a threat of harm or punishment, promise of leniency, or without notifying the suspect of his or her Miranda rights", this is all dependent on the judge's own discretion. Even if a coerced confession is introduced at trial, evidence about coercion can still be presented to the jury. But how much does such evidence actually affect the jury and jury deliberations?

    Fundamental attribution error is a trap that many jurors fall into in cases of coerced confessions. Fundamental attribution error is the tendency "to assume that a person's actions depend on what 'kind' of person that person is rather than on the social and environmental forces that influence the person." A 1980 study from Kassin and Wrightsman found that "when a defendant confessed after an explicit threat of harm or punishment, [mock jurors] rejected the information." Yet, when the confession was elicited after a promise of leniency, "they conceded that the confession was involuntary but used it to vote guilty." Bottom line, a promise of reward was seen as a weaker inducement of confessions than threats of punishment.

    In a study of 85 mock jurors, "the mere presence of a confession was thus sufficient to turn acquittal into conviction, irrespective of the contexts in which it was elicited and presented." Even when given an instruction to disregard an inadmissible coerced confession, 44% still voted to convict and stated that the confession had not affected their verdict in an otherwise weak case. At the end of the study, the researchers determined that "confession evidence has a profound, context-resistant impact on jurors and should be admitted only with extreme caution."

How Can Juries Help Combat America’s Wage Theft Issue?

American workers are a proud people - holding on firmly to the idea of the American dream - the idea that working hard will get you far. However, the prevalence of wage theft and other labor violations continue to hinder the ability of low-paid workers to attain social mobility and thus, perpetuates the cycle of poverty. For example, in 2019 alone, corporations succeeded in stealing a whopping $9.2 billion dollars from nonunion, private sector workers who made less than $13 per hour.

How is this type of wage theft from our working class possible? Well, one theory is that by allowing corporations to force arbitration, rather than enforcing workers’ rights to a jury trial, has completely tipped the balance of power in favor of corporations. 

While union workers have the chance to dodge arbitration, nonunion workers - the majority of which are unaware of their rights - are stuck facing a daunting, complex arbitration process to recover their lost wages. As a result, 98% of workers whose claims are subject to forced arbitration abandon or never bring their claims. To this end, American corporations have effectively and systematically robbing the poor to give back to the rich, in some sort of perverse, reverse Robin Hood reenactment. 

A pillar of our judicial system is the ability to be judged by our peers. The lack of enforcement of this important mechanism has contributed to denying workers a fair and just avenue to receive their deserved wages. Many labor rights activists contend that a jury trial will help workers to gain back power, as the juries would likely be made up of workers that may have experienced wage theft themselves or at the very least empathize with hard workers.

In the past, the most cost-effective and efficient way to pursue a jury trial for wage theft would have been joining a class action. Class actions aggregate all employees in similar situations against one employer and can sway juries by revealing a staggering amount of evidence that the employer had systematically abused their workers. Juries consistently respond favorably towards workers, presumably because the representation of their economic class is more likely, and reward plaintiffs far more than a forced arbitration. To illustrate this, the typical award per worker in forced arbitration ($36,500) is only 21% of the median award in a class action lawsuit in the federal courts ($176,426). Despite these glaring inequalities, in 2018, the Supreme decided in the landmark case Epic Systems Corp v. Lewis, that the class waiver provisions in arbitration agreements are valid, thus depriving workers of any recourse outside of arbitration.

The National Employment Law Project suggests that passing a federal law, the Forced Arbitration Injustice Act, could assist in remedying this power imbalance. The Forced Arbitration Injustice Repeal (FAIR) Act would “eliminate the use of forced arbitration and class/collective action waivers in employment and civil rights disputes, restoring workers’ right to bring their claims before a judge and jury. Restoring this right would likely generate increased compliance with federal and state wage-and-hour laws.” 

Should States Allow Those With Prior Convictions to Serve on Juries?

Maryland, once again, has presented a bill that would allow those with prior convictions to serve on juries. Maryland’s current law, defined as “one of the most restrictive in the country,” prohibits offenders of both felonies and some misdemeanors from serving on juries unless they receive a pardon. The proposed bill would allow convicted felons to serve on juries after completion of their sentences, while still excluding those found guilty of witness intimidation or jury tampering.

Maryland’s decision to alter their current law is the result of criminal justice reform. According to the Prison Policy Initiative, all states have some form of jury exclusion for those with prior convictions, resulting in almost twenty million people across the U.S. being barred from jury service. While some states only restrict those who are currently incarcerated, most states also exclude those with past felony convictions. Some states allow those with felonies to serve after their sentence, including probation and parole, is complete. In more extreme cases like Maryland, those with certain misdemeanor convictions are also barred from jury service. 

For example, Texas, which defines jury service as a “privilege,” bars people from serving who are convicted or under indictment for a felony or misdemeanor theft. South Carolina bars those who have been convicted of or are under indictment for any violation punishable by imprisonment for more than one year, including Class A and Class B misdemeanors. This includes convictions for vandalism, instigating or participating in a riot, and first degree harassment (see the full list here).  

There are strong arguments for temporarily barring those with pending cases or who are incarcerated from serving on juries. But, what about those who complete their sentences, whether it be for a felony or misdemeanor? Barring those with prior convictions, even after successfully completing their sentence, disproportionately affects minority communities. For example, almost one-third of black males have felony convictions, which would exclude them from serving on juries in most states. 

One major critique of the concept of a “jury of one’s peers” is that many states struggle to diversify their jury pools for a multitude of reasons. One reason is that, despite completing their sentences, many minorities are still not allowed to serve on juries because of prior convictions. Those opposed to allowing this population to serve on juries believe that they would disregard the rules and would be possibly too empathetic to the defendant. However, those with prior convictions may actually “outperform” those without prior convictions, as they contribute more to deliberations and cover more of the facts presented at trial. Additionally, those with prior convictions are no more likely to sympathize with a defendant than other jurors.

Jury service is one of the most notable civic duties, that, as some would say, is a privilege. However, excluding a major portion of the population from performing this civic duty not only affects those who are excluded but also defendants seeking a jury of their peers to determine their guilt or innocence. 

Parental Termination Cases in Texas - Does a Trial By Jury Make Sense?

Under Texas law, subject to certain limitations, parents have a right to a jury trial for issues involving parental rights such as termination. Tex. Fam. Code §105.002. But for termination of parental rights, Texas and Oklahoma are the only states which guarantee parents the right to a jury trial. However, the costs of jury trials in this context are real. The costs are potentially burdensome on children who may remain in foster care as a jury trial proceeds. Therefore, a quick resolution of the parental rights issue is critical. 

One important question asked by the Oklahoma Supreme Court task force is whether parental termination jury trials produce more equitable outcomes? Another wards, on balance, does the pros outweigh the cons? The answer appears to be no. 

A recent study found there is no clear difference in outcomes for parental termination cases, when the case was decided by a judge rather than by a jury. The study pointed out that both juries and judges overwhelming terminate parental rights in either context. Also, the amount of parents that request a jury trial is relatively low with only 15% of parents requesting a jury trial. A similar 2005 Arizona study regarding parental termination rights cases also found no difference in outcomes between a bench trial and a jury trial. 

So, why do some parents insist on a jury trial in a parental termination case? The reasons vary. But some explanations include that juries may be more sympathetic to a parent than a judge. However, the limited studies do not support this conclusion. Another reason parents may chose a jury trial is that the parent may be incarcerated, and thus want to invoke every guaranteed right they have remaining. 

Voir Dire

If an attorney is involved in the voir dire process for a parental termination case, the attorney should select jurors that are fair and impartial but also jurors that are sympathetic to the parent or the states case. In fact, the State of Texas has compiled a list of questions relating to parental termination cases that can help better gauge prospective jurors.

Some of the questions in include:

(1) How many people here are parents? Grandparents? Teachers?  

(2) When and under what circumstances do you think it is appropriate/safe to leave children alone?  

(3) Are there any methods of discipline you think are improper?  

(4) Do you think it is possible for a parent to endanger a child by failing to protect that child from the other parent?  

The list continues with more specific questions for categories of parental rights case grounds such as inability to care for the child, child endangerment, domestic violence, and other forms of child abuse. Thus, if a parent requests a jury trial for a parental termination case, the attorneys can better prepare to select the jury by digging deeper and asking specific questions during the voir dire process. Yet ultimately, attorneys should not hold their breath that a jury trial will be a better outcome for their side. 

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.

The Lasting Effects Jurors Experience from Serving on High Profile Cases

     The civic duty of serving on a jury should not extend to defending the verdict months and years into the future. After serving as a juror on a high profile case, jurors experience extensive public backlash for their decision and are often scrutinized in their local communities. High profile cases can include cases involving celebrities, such as O.J. Simpson or cases involving events that have been made newsworthy through the media, such as in the case of Casey Anthony.

    Often times, jurors are hard to find for high profile cases because the attorneys struggle to compose a group of twelve that will not be completely overcome by the breathless media coverage. However, jurors are not always informed of the lasting effects of serving on a high profile case. 
In 2011, Casey Anthony was on trial for the murder of her two year old daughter. For this trial, there were significant difficulties in composing a jury of twelve due to the intense local media coverage. The presiding judge made the decision to import a jury to Orlando, Florida from Clearwater, Florida, which is over 100 miles away. He did this in the hopes of  jurors there might be less exposed to the intricacies of the case.

    Little did they know, the jurors would be ridiculed for their non-guilty verdict for months to come. Even though these jurors were not citizens of the city where the case was tried, this group of twelve was ridiculed for the non-guilty verdict in Orlando as well as back home in Clearwater. In Orlando, immediately following the verdict, the courthouse was bombarded with signage saying “Juror 1–12 Guilty of Murder!!!” and “Somewhere a Village is Missing 12 Idiots.” Once back in Clearwater, one juror reportedly quit her job and fled the state to avoid the animosity she was receiving. The media even went so far in this case as to push for the release of the juror's information and intervene in the public distaste for these twelve individuals. Seeing that the Casey Anthony trial led to such life changing circumstances for the jurors, two years later when the George Zimmerman trial was held in Florida the attorneys agreed to handle juror information differently from the beginning. Prior to jury selection in the Zimmerman case, Judge Debra Nelson granted the defense’s request that jurors’ identities be kept anonymous throughout the trial. Those jurors also received death threats and threads were thriving on twitter asking for the death of the juror's children because they let George Zimmerman walk free. 

    However, this problem is not new and its effects can last much longer than anyone can truly anticipate due to the ever evolving media platforms. Specifically, the jurors that served on the 1995 O.J. Simpson criminal trial are still dealing with the wrath of the media over the non-guilty verdict that they provided over two decades ago. In July of 2017, one juror was interviewed by ABC News and was asked to describe what he thinks of O.J. Simpson now compared to how he viewed him and the events in 1995 at the time of trial.  It should not be breaking news that this juror may have additional thoughts on the situation decades later. Likewise, one juror in an exclusive ET interview acknowledged that due to the stress of the trial, he took disability leave from work and after four to six months of therapy was finally able to return to his normal job. 

    In conclusion, jurors should be warned of the potential long term effects that can result from taking on such an outward-facing case. Then after trial, the least that can be done to show appreciation for the sacrifices of serving on a high profile trial is to let the jurors be.

Voir Dire - What Is The Purpose?

Exposing Bias or Prejudice to Establish a Basis for a Challenge for Cause

    One of the main purposes of voir dire examination is to gather relevant information to establish a basis for challenges for cause against unwanted jurors.[1] Voir dire examination is done to protect the parties right to an impartial jury by exposing any improper juror biases which would give rise to disqualification of the juror that possesses the bias or prejudice.[2] In order to protect this right and discover any bias or prejudice, voir dire allows counsel to question the potential jurors about specific views that would prevent them from serving their duty as jurors as they were instructed. As such, counsel is to frame their questions in a manner that would ensure that the selected jurors will not base their verdicts on things that are irrelevant, or unfairly prejudicial.[3]

    A challenge for cause is a challenge that is used to eliminate jurors from the panel who may be undesirable.[4] Challenges for cause are oral objections made during voir dire which allege a fact that disqualifies a juror to serve in the given case.[5] If the challenge is sustained by the court, the juror is discharged from the case.[6] A challenge should be sustained when it appears that a potential juror has a pecuniary interest in the subject matter of the suit.[7] A challenge for cause should also be sustained when the person was a witness in the case, is related by consanguinity or affinity within the third degree to one of the parties, or served as a juror in a former trial of the same case.[8] A challenge should also be sustained if a person is seen to have a bias or prejudice.

    A disqualifying bias or prejudice could be towards one of the parties themselves.[9] For example, in the case of Gum v. Schaefer, a juror was disqualified from serving on the jury when she admitted that she was biased towards one of the parties because she had an attorney-client relationship with one of the attorneys. Thus, she would be much more likely to believe her lawyer than the other.[10] A disqualifying bias or prejudice could also be regarding the subject matter of the litigation.[11] For example, in the case of Carpenter v. Wyatt Construction Company, a juror was disqualified in a personal injury case after stating that it was impossible to keep a construction site clean.[12] Also, a juror is disqualified if he/she is unable or unwilling to follow the court’s instructions or if he/she unequivocally admits a bias or prejudice.[13]

    But a bias or prejudice is not established because of a single statement. Instead, it is determined by considering the record as a whole.[14] Even a single statement by a prospective juror that one party is “ahead,” is not determinative of bias.[15] Thus, a prospective juror is not disqualified unless further questioning illustrates that the bias is equivocal, and that they cannot be impartial. Therefore, it is through the voir dire examination that the parties are able to expose any bias or prejudice, establish a basis for a challenge for cause against unwanted jurors, and ensure that the parties right to a “fair and impartial jury” is protected. 

Exposing Bias or Prejudice to Make Peremptory Challenges

    The second purpose of voir dire examination is to facilitate the intelligent use of peremptory challenges.[16] Peremptory challenges may be used in addition to challenges for cause to prevent undesirable jurors from sitting on the jury.[17] The parties are limited in the number of peremptory challenges that they can make.[18] Consequently, counsel may first try to eliminate the undesirable jurors through challenges for cause and will save peremptory challenges for jurors when counsel is unable to establish a challenge for cause. Peremptory challenges are also referred to as “strikes.”[19] Unlike challenges for cause, strikes are “made to a juror without assigning any reason” for striking them.[20]

    Strikes allow the parties in the case to reject jurors that they feel to be particularly insensitive to their position.[21]This fact emphasizes how subjective the jury selection process is and how unformulaic the voir dire process is as a result of the Rules of Civil Procedure not containing any rules regarding voir dire examination.[22] [23] But these strikes are not intended to allow a party to select the jurors that create the most favorable jury to them.[24] The parties are allowed, and have the right, to question prospective jurors to discover something that would call for a strike.[25] Counsel is thus given great latitude in voir dire in order to discover potential biases.[26] Seeking out potential bias or prejudice and making peremptory challenges thus furthers each of the parties right to a “fair impartial jury.”[27]

Justice is Not Blind

Lady Justice is one of the most famous legal symbols in America. She possesses three main characteristics: the scales of justice, a sword, and a blindfold. These characteristics each represent different yet important ideas and values in the legal system. However, together, they represent the fair and equal administration of the law. Nonetheless, jurors have struggled in applying these ideas and values, especially the impartiality symbolized by the blindfold. 

In 2000, the American Civil Liberties Union (ACLU) issued a report that “America’s justice system is not blind.” In today’s society, race, social status, and wealth often play a factor in juror determinations regarding whether a defendant should be convicted of a crime or not and how that person should treated after they are convicted. Often times, the unequal enforcement of our nation’s laws derives from what is called juror “implicit bias.”

Implicit Bias:

Implicit biases (unconscious bias) are attitudes and beliefs that occur outside of juror’s conscious awareness and control that can affect how they evaluate information and make decisions. These biases often result from what we call system 1 thinking (fast, automatic, unconscious, and emotional thinking) and arise because we tend to seek out patterns; we like to take shortcuts; and social and cultural influences. For example, without their conscious knowledge, jurors have certain attitudes towards people (e.g., cops) or associate stereotypes with people (e.g., people from X country are violent and uncivilized).

Studies:

While jurors are supposed to evaluate only legal evidence, “extralegal factors” often influence a juror’s judgement.

Race:

Some studies show that jurors often make harsher judgements of defendants from other racial and ethnic groups that they do not identify with. Similarly, the ACLU found that “minority youths are more likely than whites to be treated as harshly as possible at each step in the criminal justice system even when compared only to youths of similar age, gender, offense and record.” 

Attractiveness: 

Other studies have found that an attractive defendant is treated differently than an unattractive defendant. For example, smiling defendants tend to receive less harsh sentences compared to non-smiling defendants. 

Solution

To reduce implicit bias, some courts have begun alerting jurors of hidden biases they might bring to the court. For example, the U.S. District Court for the Western District of Washington in Seattle and Tacoma show prospective jurors an 11-minute video regarding unconscious bias. The video attempts to ensure that jurors 

1. Know that unconscious bias exists and occurs in everyone; 
2. Carefully examine their decisions and judgments; and 
3. Question whether their decision would bee different if the witness, lawyer, or person on trial were of a different race, age, or gender. 

Creating awareness may be the best solution we currently have to try reduce implicit biases. However, simply understanding that biases exists does not necessarily mean jurors will stop themselves from acting on them in the moment. Perhaps, we need to blindfold jurors just like Lady Justice. As one of my classmate noted, “being unable to see prevents ‘inaccurate and unfair conclusions.’”

The Decline of Jury Trials

 

It is argued that the right to a jury trial is one of the most important rights a criminal defendant may have in the U.S. Constitution. Nonetheless, jury trials are vastly disappearing in U.S. courtrooms for multiple reasons as cases hardly make it to trial these days. Researchers who have studied this issue offer many different possible explanations for the decline in civil and criminal jury trials.  

One study showed that “a trial [today] is very much the exception, rather than the rule,” regardless of jurisdiction, criminal or civil, bench or jury, or type of claim. It refers to jury trials being on the “endangered list” as Supreme Court decisions have made case disposition by motion more likely. This is a more attractive alternative for defendants, because it is more readily available and less expensive. 

 

On the other hand, it found criminal defendants are more likely to proceed to jury trial than civil defendants. In federal courts, there are more jury trials than bench trials, but the opposite is true in many state courts. In both federal and state courts, tort claims are more likely to go to trial than contract claims.

 

Another study’s research focused on factors relating to the “disappearing jury trial,” such as mandatory minimum sentences, damage caps and mandatory arbitration, and the consequences of it disappearing in the legal system. Almost all defense attorneys and fifty percent of judges that were surveyed claimed that mandatory minimum laws had a significant role in the decrease of jury trials for criminal cases, because they incentivize plea deals that defendants will take and forego their right to a trial. 98% of criminal convictions in federal courts ended in guilty pleas the year before COVID. Damage caps and mandatory arbitration was a big factor in civil cases, because they either incentivize plaintiffs to settle or not pursue them at all. Additionally, binding arbitration clauses in contracts have made it more difficult to pursue these civil trials. 

 

Between 1962 and 2013, the percentage of civil cases resolved through jury trials fell from 5.5% to 0.8%. The use of jury trials in federal criminal cases fell from 8.2% to 3.6% over this same time frame.

 

However, jury trials are still seen as one of the fairest methods for handling cases despite the time and expense. Many judges and attorneys surveyed from both sides of a case believe that juries are worth the time and cost. Therefore, many researches have suggested different policy changes including eliminating or raising the level of damage caps, ending mandatory arbitration, and reforming sentencing guidelines.

 

Ultimately, it will not be easy to make any of these reformations nor do some people want to make these changes in the legal system. Consequently, it seems like jury trials will remain on the “endangered list” for more years to come. 

Still Deliberating... Forever and Always

 Are Jurors Still Deliberating After the Trial is Over? 

    Most of our knowledge about jurors, juries, how they function, effectiveness, and deliberation comes from jurors who answer our questions after the trial is over. Although jurors are usually instructed not to discuss the case with the media after the trial has commenced, jurors' opinions, ideas, and information are the only way we can study how to be better attorneys, provide better evidence, and be more persuasive in future cases. In short, I will discuss how "unusual" it is for jurors to stay involved in the case they served on and the associated dangers. 

    It is not a secret that jurors are generally uninterested in being a juror, regardless of the type of case. Although certain cases - such as those involving serious crimes, celebrities, or political scandals - cause jurors to be more entertained and "tuned-in", the thought of jury service bores most. However, a unique juror's take sheds light on her experience as a juror in a murder case - for a man she believes was completely innocent. 

    The Marshall Project published an entire piece by Audrey Pischl's where she explains her role as a juror in a murder trial and her experience after her juror responsibilities ended but the case continued through the legal process. An important thing to note is that this specific individual grew up in Paris, France and then traveled between Europe and from the United States for many years as the employee of a high-profile entertainer. When she was summoned for jury duty, she did not imagine that she would actually be chosen, since most summoned are dismissed. After going through the entire process and being chosen, Audrey's life completely changed. 

    The case involved 5 men that were drinking beers in one's driveway when one or more individuals came running towards them, shooting guns. One man was shot and killed instantly. She described her initial impressions of the defendant as follows: 

My first impressions of the two defendants were neutral: James, the taller one, sat up straight and seemed confident but not overly so, while Robert* was hunched down and, to me, looked like a “deer in headlights,” as the expression goes.

    She further explained that she had immediate feelings for Robert, as if she could hear his thoughts. "How did I end up here? How did this all happen to me?" And Audrey explained how Robert was constantly pulling his sleeves to cover his tattooed hands and arms. Furthermore, she said: 

 My opinion was clear: Robert was not guilty, under the law as it was read to us at the end of the trial. If you have reasonable doubt, you have to vote not guilty.

    The case ended in a mistrial: 7-5 guilty for James and 7-5 not-guilty for Robert.  After the trial, Audrey found out that at the re-trial, the district attorney was seeking life-without-parole for both defendants. Feeling devastated, Audrey kept in touch with the attorneys. Although James took a plea deal, Robert did not and trusted his attorney's opinion that the new jury would find him not-guilty. Audrey along with another juror attended the re-trial which lasted only one day, and jury deliberation lasting less than 24 hours. The jury returned a verdict of guilty... one murder and four counts of attempted murder. 

    Audrey witnessed his family's cries, screams, and devastation. Unable to let go and wanting to help, Audrey called the court clerk to ask if she could submit a letter for the sentencing hearing, hopeful that Robert could at least get parole at some point in his life. She called every attorney she could find to get information about how sentencing goes and also gave her number to Robert's family in case he ever wanted to call her. He called her less than a week later and thanked her for her support and belief in his innocence. 

    The sentencing came back: life-without-parole - "a death sentence with a different sticker on it." Audrey mentioned that "Robert's has made me engage with the world in ways I never thought I would. I kept in touch with four of my fellow jurors and we meet up once in a while."

Lastly, Audrey expressed her heartbrokenness by saying: I have been told how unusual it is for a juror to become so involved in the case after-the-fact. But I find it sad that it could ever be unusual to know about what happens to people like Robert and care.

    In conclusion, this whole story was such an interesting and hopeful read. Although the contents were heartbreaking, sad, and concerning, the hope that jurors may care about the people they judge is still alive. That maybe jurors will keep up with the cases they serve and feel some responsibility to express their opinion even when their duties are complete. Essentially, this juror wanted to ensure that justice was served, even if she was not the one serving it.   

    

What does a "Jury of Peers" mean?

The American jury is suppose to function as one of the last cornerstones of our democratic systems with its promise that all citizens, regardless of background, race, ethnicity or gender, have the opportunity to participate in the fair administration of justice for all by serving as a juror. The right of serving on a jury is protected by the Equal Protection Clause which prohibits discrimination in jury selection on the basis of race or gender, or on the assumption that an individual will be biased in a particular case for no reason other than the fact that the person happens to be a part of either group.

 

There are two portraits of an ideal juror: 1) a juror who brings no personal knowledge or opinions to the case, therefore they can judge it with impartiality; or 2) a juror with localized knowledge, therefore they can apply the law as a neighbor in ways that resonates with the community’s moral values. [1] The tensions between these portraits represent the dilemma of modern jury selection as “the jury immediately inspires but confuses us because it wants matters both ways: to insulate justice from popular prejudice and yet to leave justice in the hands of the populace.”[2]

Should the jury of our peers be defined by those closest to us in our communities or those who are insulted from our communities but have specific knowledge about the topic being adjudicated? As we balance these two competing interest, it's a question that is complicated by the fact that a diversity of opinions on a jury is important for preserving its democratic value.

[1] Jeffery Abramson, We the Jury: The Jury System and the Ideal of Democracy 18 (1994)/

[2] Id.