How Jury Service Influences Attitudes toward the Court System

Written by Jimin Pyo, a doctoral student in the Department of Criminal Justice at the John Jay College of Criminal Justice, CUNY.

[Today’s post comes from a guest scholar, who has a new publication. We encourage anyone with research relevant to this blog to write short summaries for our readership.]

Despite the declining frequency of jury trials in the United States, juries continue to play vital roles in American society and culture. The jury trial experience is deeply related to many Americans’ feelings toward their democracy and its cultural traditions. Few studies, however, have examined the influence jury service has on jurors’ perceptions of the legal system. Those influences are important because they can lead to broader social and political changes.

To address this gap in the literature, I conducted a study of 759 jurors to test the hypothesis that deliberating on a criminal jury would lead to more favorable perceptions of the criminal prosecution system. This expectation was in line with deliberative democratic theory, which argues that citizens often develop more favorable attitudes toward democratic institutions when they take part in collective decision making focused on common good.

My statistical analysis showed that citizens who deliberated on a criminal jury tended to have more favorable impression of–and more knowledge about–the prosecution system, as compared to those without jury experience. This study informs ongoing effort to examine the influence of jury service. Further studies on this topic would be useful not only for policy makers in the US but also for other countries, such as Argentina and South Korea, that are developing criminal jury trial systems.

The full article citation is: Pyo, Jimin. 2017. “The impact of jury experience on perception of the criminal prosecution system.” International Journal of Law, Crime and Justice. Early access online at ScienceDirect.

 

 

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Posted in Deliberation on juries, Public/media views of juries, Social/political impact of juries | Leave a comment

The national spotlight and Trump’s tweeting complicate any Mueller investigation jury trials

In the wake of the recent news that Michael Flynn has plead guilty to lying to the FBI, the news cycle has again become consumed by the Mueller investigation.

The investigation’s first trial, into Trump’s former campaign chairman Paul Manafort and his associate Richard Gates, is expected to commence in the spring according to a report by the Wall Street Journal. But the media’s unrelenting focus on the case, the fact that it deals with such a politically charged issue, and the profound implications its outcome will have for the Presidency–all in a historically divisive national political climate– raise questions about whether any jury could hear such a case without prejudice.

The impartiality of juries in highly visible cases involving public figures is not a new problem for the courts. For example, a few weeks ago, a mistrial was declared in the corruption case of New Jersey Senator Bob Menendez, whose charges were widely publicized and discussed in New Jersey media outlets for months beforehand.

US courts have developed several mechanisms to root out whether a prospective juror might hold a bias against the defendant, or against key witnesses. In the case of the Menendez trial, jurors were required to fill out a questionnaire detailing where they got their news from, their party affiliation, and whether they had ever visibly supported a candidate by, say, displaying a bumper sticker. Other questionnaires used in trials inquire as to whether prospective jurors have talked about a case to family members or co-workers. In the digital age, potential jurors can also expect to have their social media activity combed through by both defense and and prosecution attorneys.

Nonetheless, the Mueller investigation is different by degree in the juror bias challenge it poses. This is all the more true in our era of fragmented media and “fake news,” where individuals can self-select news sources that reinforce their pre-existing biases, buttressing some convictions devoid of factual content.

There is one other reason these trials will be unique: the fact that President Trump is likely to tweet during the trial. There is every reason to expect this, as Trump has shown little reluctance to use Twitter to comment on judicial proceedings in the past, as in the case of his travel ban.

To prevent the President’s views from tainting those of the jury, the judge could–and probably will–sequester the jury. That tactic was used, famously, during the O.J. Simpson trial. This would require jurors to remain in one location during the trial (normally a hotel), and the judge would bar them from accessing any media that could alter their perceptions, including the newspaper and the television. Without a social media ban, as well, jurors might still access Trump’s tweets–and anything else channeled through Facebook, Twitter, and other accounts.

As former federal judge Richard Howell explained to the Wall Street Journal:

[Each time Mr. Trump comments on the case during the trial] “a jury would have to be examined one-by-one as to whether they heard the remark and whether it has any impact on what they’re doing. It will be a challenging trial.”

Regardless of whether or not sequestration is employed, the full context surrounding any jury selection process relating to the Mueller investigation is exceptional.

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When jurors herd together and when they stand their ground

A new study re-uses some of the data collected for the Jury and Democracy Project, along with original complementary data, to show when juries herd together and when they remain divided. A team of researchers in California, Maryland, and North Carolina (Keith Burghardt, William Rand, and Michelle Girvan) analyzed jury outcomes with a focus on two variables–how long juries took to deliberate and how split they remained in their final judgment. Their findings now appear in a pre-publication article placed the sneaky-titled repository, arXiv. (It’s pronounced “archive.” There’s a “chi” in the middle. Get it? This is the kind of humor that gave rise to the other”Big Bang Theory.”)

The study focused on jury trials that do not require a unanimous verdict–in this case, a set of civil trials in a few states and criminal trials in Oregon, which has the distinction of supermajority decision rules for most types of criminal cases. In a nutshell, when juries strongly leaning toward the plaintiff/prosecution or toward defendant, they deliberate and reach a verdict rather quickly (less than three hours). When jurors’ views of the case are more evenly split, however, it’s much more likely they they will take 4-8 hours to deliberate.

As the authors put it, jurors’ inclination to render a near-unanimous verdict can lead to the quick verdicts, when the majorities start out large. Whether this is truly “herding” can’t be known, given the absence of data on jurors’ pre-deliberation leanings. More definitive is the label of juries as “stubborn” when they end up split, with jurors holding opposing views holding their respective ground.

From a distance, the findings aren’t altogether surprising, and they might be somewhat encouraging. They show that juries operating with supermajority decision rules operate efficiently, by reaching verdicts quickly when one appears clear at the outset. The findings could also be taken as another piece of evidence that only when given a unanimous decision rule do juries feel compelled to move more carefully through their deliberation, as “evidence-driven” rather than “verdict-driven” juries (to use the terminology popularized by Reid Hastie and colleagues’ classic, Inside the Jury).

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Older Americans still find jury service to be an important part of citizenship, younger Americans less so

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

In a Pew Research Center survey conducted in April 2017, 67 percent of American adults said that “serving on a jury is part of what it means to be a good citizen.”

Younger people are less likely to see jury duty as a part of good citizenship

However, this tends to not hold across different demographic groups: younger Americans, minority groups, and those without a college education are all below the average, with the young significantly so:

For example, only half of those ages 18 to 29 say jury service is part of being a good citizen, compared with seven-in-ten or more in older age groups. Blacks and Hispanics are less likely than whites to see jury duty as a part of good citizenship, as are those with a high school diploma or less when compared with people with at least some college education.

This decline among the young could reflect a decline in the rate at which cases go to trial in the modern court system. For example, in 2016 only 43,697 Americans were selected for federal petit jury duty, down 39% from 71,578 in 2006. Moreover, in 2016, only 2% of the 77,318 federal defendants had their cases decided by a jury, half as much as in 2006. (See the New York Times article, “Trial by Jury, a Hallowed American Rights, is Vanishing.”)

This decline can be seen with civil jury trials, as well. According to the NYU School of Law’s Civil Jury Project, in 1990, there were 4,765 civil trials decided by a jury, whereas in 2015 there were only 1,882, despite a drastic increase in the prevalence of civil lawsuits. In a talk at NYU, Supreme Court Justice Sonia Sotomayor lamented this decline, saying that jury service in American democracy is “the one responsibility of citizenship…where you’re asked to serve and actually come to a decision on the behalf of the society that we represent.” She views jury service as the “front line of protecting the society and its liberties.” (We wrote more about both Justice Sotomayor’s talk and the Civil Jury Project, which can be found here and here.)

However, these views on jury service among younger Americans are not necessarily evidence of a broader disengagement with the political system, especially after the 2016 election. In a survey conducted by the Harvard Institute of Politics in Spring, 2017, the difference between 18-29 year-olds saying that politics is and isn’t “relevant to my life right now” was 31%–up from only 17% in 2012. A third also disagreed with the statement, “Political involvement rarely has any tangible results”–a result higher than the 27% expressing a similar view in 2012.

Moreover, 74% and 53% of 18-29 year-olds also say that “voting” and “talking about important issues,” respectively, are one of the “top three most effective ways to produce change in American society.” Their political advocacy is also increasingly occurring online: 40% and 35% of young Democrats and Republicans, respectively, reported signing an online petition.

Nonetheless, younger Americans, as well as older Americans, are growing increasingly distrustful of American democracy more broadly: according to analysis of an AmericasBarometer data by the Washington Post, only 50% of Americans aged 18-25 expressed support for the political system in 2014, down from nearly 70% in 2006.

Smith, Amy - Democracy fig 2

Younger Americans also view political debate as increasingly uncivil and have become less tolerant. According to a 2016 poll conducted by the Harvard IOP, nearly two-thirds (62%) of 18-29 year-olds believe the level of civility in American politics over the last five years has declined. According to AmericasBarometer, from 2006 to 2014, the amount expressing support for political tolerance declined from roughly 80% to just over 60%.

 

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Listen to jurors excuse themselves during voir dire in the Martin Shkreli case

The voir dire stage of the trial can help the court find a jury willing to hear a case without prejudice. Much discussion of this phase focuses on how and attorneys remove jurors to craft what each side thinks is the most favorable jury. Voir dire, however, also gives potential jurors the chance to acknowledge their own biases and, essentially, recuse themselves. In such cases, the judge can remove a juror and spare the attorneys the use of peremptory challenges. Skeptics might doubt that prospective jurors would pass up the chance to act on their own biases, but this happens with some regularity.

The good people at Harpers provide a delightful example from the recent trial of Martin Shkreli, which resulted in a conviction. First, Harpers provides context:

[Shkreli was] an investor and hedge fund founder who is facing eight counts of securities and wire fraud. In 2015, when Shkreli was CEO of Turing Pharmaceuticals, the company raised the price of its drug Daraprim by 5,000 percent. In 2016, Shkreli was widely criticized for defending the 400 percent increase in the price of EpiPen, an emergency allergy injection sold by Mylan.

In the end, more than two-hundred prospective jurors were excused, and here’s an example of why the judge asked so many to leave during voir dire.

Judge: The purpose of jury selection is to ensure fairness and impartiality in this case. If you think that you could not be fair and impartial, it is your duty to tell me. All right. Juror #1.

Juror #1: I’m aware of the defendant and I hate him.

Defense Attorney: I’m sorry.

Juror #1: I think he’s a greedy little man.

Judge: Jurors are obligated to decide the case based only on the evidence. Do you agree?

Juror #1: I don’t know if I could. I wouldn’t want me on this jury.

Judge: Juror #1 is excused.

It only gets better. Read on for more stories of prospective jurors throwing shade on a shady defendant these citizens knew they couldn’t judge impartially.

 

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The implications of Pena-Rodriguez v. Colorado: Two competing perspectives

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

The Civil Jury Project at the NYU School of Law seeks to examine and explain the causes and consequences of the rapid decline in the use of the jury in civil trials. It just released its April 2017 newsletter, which contains three guest op-eds–two of which speak on the implications that the recent Pena-Rodriguez v. Colorado ruling could have for the civil jury system. The opinion, issued on March 6 on a 5-3 vote, found that it was constitutional for jurors to be impeached in criminal cases if compelling evidence shows that racial animus was a significant motivating factor in their decision.

In the first article (“Did the Supreme Court Open a Pandora’s Box on Jury Discrimination?“), University of Texas-Austin professor Jeffrey Abramson argues that the Supreme Court has been historically reluctant to regulate the behavior of jurors based on charges of ineptitude or poor judgement, even when those jurors were potentially under the influence of drugs or alcohol. Nevertheless, “the Supreme Court reacted differently, and correctly,” in the Pena-Rodriquez ruling.

As opposed to the occasional misconduct of rogue jurors using drugs during a trial, anyone familiar with the history of the America[n] jury know that racial bias is a familiar and recurring evil. Any rule of tradition that keep courts from protecting jury trials from racial prejudice would make a mockery of the Constitution’s guarantee of trial before an impartial jury.

Abramson argues that the ruling will not necessarily expose jury deliberations to routine judicial inspections (the “Pandora’s Box” dissenters fear it will open). The opinion was limited to cases of overt or explicit bias, as well as to bias that only invoked racial or ethnic prejudice. In so doing, the court is seeking to “preserve our general faith in the jury system while dealing with the particularly egregious effects of race on the administration of justice… a hard combination to pull off [successfully].”

The second article, titled “Democracy, Citizenship, and the Pena-Rodriguez Caseand written by New Jersey Institute of Technology professor (and co-author of The Jury and Democracy) E. Pierre Deess, takes an opposing stance. Deess believes that not only will this decision open the aforementioned “Pandora’s Box” by not “offer[ing] strong principles limiting the decision to racial bias,” but jurors may struggle to conduct open and unregulated deliberation. Under a fear of expressing objectionable views, jurors will sometimes fail to scrutinize and evaluate the facts as they have been presented:

Entrusting power to citizens comes at a cost… With this decision, jurors– ordinary people–must police their words even in the heat of argument or the decision of the jury can be overturned… We cannot invoke some greater authority to set aside the decisions of an electorate or a jury because faith in the people is the final consequence of democracy.

The last article, titled “The Expressive Function of the Jury” and written by University of Connecticut School of Law professor Alexandra D. Lahav, does not deal with the Pena-Rodriguez ruling, but touches on some of the points made by Deess. In her book In Praise of Litigationshe argues that the jury is a cornerstone of democracy, as its very existence “expresses a societal belief that citizens are sufficiently educated and thoughtful to decide the fate of their fellow citizens.”

Moreover, jury service also offers a more robust form of participation than mere voting as “it requires deliberation,” while also providing a forum through which that deliberation can effectively negate the flaws of a democratic society, such as deeply-held racial animus:

It is precisely in encouraging deliberation, consensus and recognizing different points of view that the jury is so important to democracy. Instead of being a threat to expertise, virtuous elites, and professional homogeneity, the jury can be understood as a welcome complement.

 

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Sonia Sotomayor Reflects on Civil Jury Trials, Arguing They are Uniquely Empowering, Unifying, and Just

Written by Ethan Paul, undergraduate student at the Pennsylvania State University

As the Senate considers the qualifications of a new prospective Supreme Court justice (after the GOP stonewalled Obama’s final nominee), we’re looking back a year to when NYU’s Civil Jury Project held a discussion with Supreme Court Associate Justice Sonia Sotomayor. On February 8, 2016, the Project held a forum titled, “Will Juries Go the Way of Powdered Wigs? The Seventh Amendment and the Modern World.”

Sotomayor_and_SussmanThe Civil Jury Project launched that same year to examine the causes and consequences of the rapid decline in the use of of jury trials in civil cases, as well as what solutions might begin to mitigate those effects. Justice Sotomayor is uniquely qualified to talk on the subject, as she is the only member of the Supreme Court who has both presided over a civil jury trial and conducted one as a trial lawyer. The conversation was led by trial lawyer Stephen Susman, who was heralded as one of the nation’s Top 10 litigators by the National Law Journal in 2006, among other accolades.

Justice Sotomayor began the talk by describing jury service and voting as two aspects of American citizenship and democracy that are uniquely empowering relative to all others. Jury service, she explained, is

“the one responsibility of citizenship that no one else can actually do… everybody pays taxes whether you’re a citizen or not, people serve in the military whether they’re citizens or not… but this is the one activity where you’re asked to serve and actually come to a decision on the behalf of the society that we represent.”

Furthermore, the process of deliberating and engaging over issues often of extreme consequence for the lives of fellow community members can bring otherwise socially disparate and separate individuals together:

“You talk to jurors, many of them become friends… there is something about that process that is both engaging and self-fulfilling. To be a responsible person, to come to a decision after you’ve looked at all sides of an issue… we often don’t make decisions that way… and this is a way of forcing people to think about how useful that collaborative effort can be.”

The conversation then moved toward the decline in civil jury trials; for some context, in 1990 there were 4765 civil trials, whereas in 2015 there were only 1882 civil jury trials, a decline of 60.5%. Justice Sotomayor argued that the reason to lament the decline could best be derived from an understanding of why the founding fathers had a desire to protect the civil jury system in the first place:

“Read about the seventh amendment, and read about what motivated our founding fathers to think that it was an important protection of a sense of liberty… I think that they understood, and I think we should understand, that the jury is the front line of protecting the society and its liberties.”

She also argued that juries can often reach decisions that are overwhelmingly more just and in the community’s interest, but which otherwise would not be reached. She made this point while discussing the relatively-unknown power of “jury nullification,” the history and importance of which we touched on in a November blog post here:

“Think about what juries did during the Civil Rights movement. If it weren’t for jury nullification, we would have many civil rights individuals who would be convicted felons, or otherwise, for things that today we think are protected by the first amendment.”

In the last segment of the talk, the discussion moved to how the civil jury process could be revitalized . Susman asked if jury selection could occur over the Internet, rather than through a process that forces potential jurors to spend one or two days in the courthouse:

“I think what that misses is the dynamic that occurs among venire people [those summoned to the courthouse], in the discussions that go on in the group. People will say things in the process of open court that other jurors may not have thought about but begin to consider because its been stated openly… you would lose something very valuable if you [conducted jury selection in that manner].”

In the absence of such a change, Justice Sotomayor argued that jury service could be made more attractive by framing jury service in a manner that properly emphasizes the necessary and unique role that jury trials play in protecting and furthering the public good: Sotomayor has personally found the most success by “explaining to jurors the importance of the process, [as well as] their individual importance in being a part of the process.”

 

Posted in Jury structure and reform, Social/political impact of juries | 1 Comment