Ethnic bias in voir dire: More evidence of a widespread problem

A recent L.A. Times story picked up a preliminary report from U.C. Berkeley on who gets excluded from juries during voir dire in California. Here’s a quick summary:

The report examined, among other things, nearly 700 cases decided by the state’s Courts of Appeal from 2006 through 2018 that involved appeals of prosecutors’ jury strikes.

In about 72% of the cases, prosecutors used their peremptory challenges to remove Black prospective jurors, the study found. Prosecutors struck Latinos in about 28% of the cases, Asian Americans in less than 3.5% and white people in only 0.5%.

The full report is available from the Berkeley Law Death Penalty Clinic.

Our Jury and Democracy Project points to another indirect harm these biases cause. We found that deliberating on juries boosts civic engagement (e.g., future voting rates), so the exclusion of particular social groups from that civic educational experience also quiets their collective voice on Election Day. Writing for the majority in Powers, Justice Kennedy made precisely this claim when citing Tocqueville. We used modern “big data” social science to show that Kennedy/Tocqueville were basically right. 

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Juries and social distancing

There are a string of recent essays and articles on how courthouses and trying to cope with social distancing rules when it comes to seating juries. A recent New York Times article provides the most comprehensive analysis.

Meanwhile, ABA Journal wonders whether Zoom trials will become the norm. I’d bet that some courts consider adopting videoconferencing for voir dire even beyond COVID. It’s the least interactive part of the proceedings, and in cases where the voir dire and trial are unlikely to start on the same day, it’s a more efficient use of everyone’s time, especially that of the jurors.

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Roger Stone jurors continue to be intimidated, even long after trial concludes

I posted an earlier note on this site about what a frightening norm-violation it was when President Trump tweeted about the jurors serving in the trial of Roger Stone. Now, those jurors have provided testimony that underscores just have grave the consequences of such actions are for those who fulfill the public duty of jury service. As CNN reports,

All 12 of Roger Stone’s jurors wrote in a series of powerful, anonymized statements this week that they feel harassed, afraid and do not want more information about them revealed to the public, especially after President Donald Trump and right-wing media criticized them for their conviction of the longtime Trump friend.

The foreperson got it the worst, as did the other juror who volunteered to speak in public.

The jury forewoman, Tomeka Hart, wrote that she still feels unsafe after the President tweeted about her around Stone’s sentencing date. Hart and another juror, Seth Cousins, who identified themselves to the media after the trial, said they’ve received threatening letters and postcards in the mail from strangers — a veiled threat that implies their home addresses are known.

“It is intimidating when the President of the United States attacks the foreperson of a jury by name,” Juror E, who served with Hart, wrote to the judge.

Having just finished the wonderful book “How Democracies Die,” it’s easy to see how this behavior by President Trump is just one more example of him smashing against the so-called “guardrails of democracy.” Anyone who hasn’t read that book might consider doing so, then joining (for free!) the Virtual Book Club at Penn State’s McCourtney Institute for Democracy, which will be discussing it on May 21.

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When Presidents attack…

In The Jury and Democracy, we noted that although juries had high approval ratings in general, conservative political attacks on the civil jury had done damage to the reputation of such bodies. Now a sitting U.S. President has attacked the criminal jury that heard the case against one of President Trumps longtime allies.

The target of the complaint was a juror who had previously critized the Trump administration on social media, a fact that isn’t in dispute. Judges have the authority to refuse attorneys’ requests to dismiss a juror based on his/her political views. After all, roughly half of Americans disapprove of the Trump administration, with substantially higher negative ratings coming from the overwhelmingly Democratic residents of the District of Columbia residents. A jury representative of the District would have jurors who hold both negative views of Trump but who can pledge to avoid bias in considering the case before them.

When Trump attacked the jury. It wasn’t long until one of the jurors stepped forward. A Reuters story quoted Seth Cousins:

“It feels like something outrageous is going on…I think it is appalling for the president of the United States to be attacking American citizens for patriotically fulfilling their duties…As a whole group, and in every single conversation that I was involved in or overheard, we never discussed politics as a jury. I have no idea what anyone’s political affiliation is.

Cousins added that since the trial, the jurors kept in touch, as happens often in high-profile cases where jurors have time to bond. Cousins attested that they all “echo the sense of being appalled. Maybe a little bit betrayed.”

After all, serving on a jury is an obligation when summoned. It’s a duty carried out at great inconvenience to the jurors on behalf of their city, county, state, or nation. Juries certainly make mistakes, as do judges, but to attack their credibility without direct evidence of bias in the jury process undermines the institution of the jury itself.

Posted in Conducting trials, Public/media views of juries, Social/political impact of juries, Voir dire and jury selection | 1 Comment

Juries and board games: A match made in nerd heaven

For so many reasons, we here at the Jury and Democracy blog are delighted by a story from today’s Raleigh (NC) News and Observer. In a nutshell, a jury asked a judge to buy it board games, and the judge obliged.

The judge seemed to avoid making jury-themed game purchases, but Clue? I mean, that’s a whodunnit, which could even be relevant to a civil trial.

Better still is that Board Game Geek even has a thread on what games are best for passing time in a jury room. And the commenters (mostly) take the task seriously.

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Suing to protect jurors’ right to serve

This lawsuit is a great example of advocacy for the rights of citizens to be considered for jury service. In an article for The Appeal, Kira Lerner explained:

Mississippi District Attorney Doug Evans was hit with a proposed class action lawsuit today on behalf of every Black person eligible to serve on a jury in his district….The lawsuit, filed by attorneys with the NAACP Legal Defense Fund and the Roderick and Solange MacArthur Justice Center, claims that since Evans became lead prosecutor for Mississippi’s Fifth Circuit Court District in 1992, he and his assistants have struck prospective Black jurors 4.4 times more frequently than white jurors, “a rate that is unparalleled in any available study.”

As we showed in The Jury and Democracy, deliberating on juries can boost long-term voting rates. Hence, discriminating against a group of people has the effect of reducing their electoral impact. It’s a subtle way of reducing a group’s power in society.

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Jury system continues to advance in Argentina

Argentina had a funny provision in its constitution, which enabled Congress to establish a jury system. It chose not to, but that provision lingered and eventually inspired legal reformers to champion the jury system as a means of bolstering democracy in Argentina. One province at a time, the jury is appearing in that country, and the latest to adopt it is Mendoza, where the inaugural jury there found a defendant guilty of homicide. The full details (in English) are available at the Argentine Association for Jury Trials blog.

That latest blog post also buries an important detail:

Only two days ago, the Supreme Court of Justice ruled that the provincial jury systems are consistent with the Constitution. It was the first ruling in 165 years dealing with jury trials.

That’s a big deal because the Supreme Court had not weighed in on this growing jury system. This likely clears the way for the continued expansion of this new institution in Argentina.

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In the age of Trump, a sign that jurors can still set politics aside

Many people probably wondered whether the jurors in the Manafort trial would be able to set aside any question of how a verdict might affect Special Prosectuor Robert Mueller’s investigation. There was relatively little discussion of this, but all it would take was one strident Trump supporter on the jury to derail the jury’s deliberations, if that individual saw it as his/her duty to defend the President and his associates. Trump’s tweets during the trial in defense of Manafort may have been designed to activate this sense of duty.


Then, from NBC News comes a story suggesting that this jury managed to look past politics. One of the jurors was Paula Duncan, a believer in Trump’s plans to “Make America Great Again.” She came to the trial skeptical of Mueller’s investigation, but–the NBC News reporter concluded–

…she also had no doubt that Paul Manafort, once Trump’s campaign chairman, was guilty. She would have convicted him on all counts, she said, but she and 10 other jurors were stymied by a lone holdout. And no, she doesn’t believe that person, a woman, was a Trump supporter.

“I wanted Paul Manafort to be innocent,” Duncan said, “but he wasn’t.”

What makes this all the more remarkable is that even after this trial, Duncan believes that the Mueller investigation into potential collusion with Russia is a witch hunt designed to take down a good president. This, she knows, from her own experience.

“I as a voter, when I went out to check my boxes I didn’t see any Russian holding a gun to my head, so how could Russia have affected the campaign results,” said Duncan, who first spoke to Fox News.

Even so, she couldn’t deny the case against Manafort. The evidence of his tax evasion and other crimes was overwhelming. “In the end I did what we needed to be done,” she said. “I did the right thing.”

Like many jurors before her, she got on the trial by being coy about her political views. “I didn’t believe politics had any place in that courtroom,” Duncan said, “so I was somewhat vague in my answers. I knew I could be fair and impartial.”

That would appear to be an accurate self-assessment. And it’s one more example of how a deliberative institution, such as the jury, can place limits on our personal political biases when it comes to serving the interests of one’s community or nation.


Posted in Deliberation on juries, Public/media views of juries, Social/political impact of juries, Verdicts juries reach, Voir dire and jury selection | Leave a comment

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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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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