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One day that dreaded envelope comes in the mail. It is the civic duty that every American abhors: jury duty. When the fated day comes, you make your way down to the courthouse and you sit. You sit for hours. Half the day passes, and you have not even seen the inside of the courtroom. Then, when you are finally brought in and questioned by the attorneys, you are immediately dismissed. Just like that. With almost a full day wasted, it is no shock that many Americans despise jury duty.
The United States judicial system would not be able to function without juries. Juries are mentioned in every single state constitution and in the fifth, sixth and seventh amendments to the constitution.
They are a right fundamental to most court cases. Every person who is arrested for a crime has the right to have their trial heard by a jury. Every person bringing a lawsuit or having a lawsuit brought against them has the right to a trial by jury.
However, the way juries are chosen has been put under scrutiny for years. The justice system is currently experiencing a plethora of problems and jury selection is one that should be fixed quickly. There have been many suggestions for jury selection, also known as voir dire, reform, but none have been implemented. Although juries are a necessary part of the court system, the jury selection process does not create justice and could be reformed by making the process shorter and randomized in conjunction with lowering the number of peremptory challenges given to attorneys.
Juries are used as decision makers in the court of law. Jurors are supposed to be representative of the population and unbiased. Citizens are summoned for jury duty when they are randomly selected off of a list of eligible jurors. This is usually a combined list of registered voters and licensed drivers. Eligible jurors to the United States must be citizens of the state, reside in that particular county and be over eighteen years old. Citizens are likely to be dismissed from jury duty if they do not speak English or if they have a felony conviction. There are also certain people who are able to get excused from jury duty. These are people who are political officeholders, or if they are a single parent and need to be there to care for their child.
The process of jury selection is intended to weed out potentially biased jurors to ensure a fair trial for all parties involved. In some states attorneys are allowed to directly question jurors and in others it is the judge who questions them. Occasionally, both will participate in questioning them. In either situation the attorneys are able to dismiss jurors for cause, in which the biases that the potential juror holds are evident. The attorneys are also given a select number of peremptory challenges, in which they can dismiss a juror without giving any reason. Once this process is complete and there is a full jury plus alternates seated, the trial can begin. This process on average lasts two hours. There are many insecurities in this process that need to be addressed and reformed.
Voir dire reform has been discussed for years, with the Bar Association voicing their support for it in 1991. Jury selection has also been discussed in many court cases with many different opinions. This is mostly argued in the case United States v. Gupta in 2011. Gupta was originally charged in New York for filing fake immigration papers. When the jury selection process was about to start, the judge instructed everyone who was not a potential juror or court actor to leave the courtroom. When Gupta was convicted, he appealed arguing that it violated his sixth amendment right to a public trial because the public was asked to leave during the jury selection process. In this case the Second District court ruled that “trial court’s closure to the public of the entire voir dire process in a criminal trial was too trivial an infringement of the defendant’s Sixth Amendment right to a public trial to warrant any remedy.”
The court claims that what happened during the jury selection process was insignificant. Though in Justice Parker’s scathing dissent, he argued that selecting the jury is extremely significant and further dissented “that the majority’s determination that the potential jury members functioned as proxies for the public was wrong because they were not ‘external to the judicial process.’”
After this ruling Gupta petitioned the Supreme Court to hear the case. In 2015, the petition was denied, letting the decision of the lower court stand. This case should have changed the way the jury selection process is perceived. It deemed that the public does not need to see this part of the case in order for the defendant to have a fair trial then why is it necessary to have it take place inside the courtroom? The selection process is viewed in this context as unimportant. It is time consuming and, according to this case, harmless in terms of the defendant receiving a fair trial. Voir dire is weighing down the court system. If every single case in either the criminal system or the civil system went to trial and called for a jury, the system would collapse. Part of that reason is due to the length of voir dire. On average, it lasts for two hours, but that can vary widely from case to case. Some cases could last more than a day. Making this process shorter could further help the courts with their capacity.
Peremptory challenges are also rarely properly used. In the words of the United States Supreme Court, they are meant to to “‘eliminate the extremes of partiality on both sides’ and to assure that jurors ‘will decide on the basis of the evidence.’” However, these challenges are actually being used by the attorneys to find jurors that will side with them and dismiss jurors that will not. Since there is this alterior motive, it has opened the gates for a new career: jury specialist. They are not in the business of constructing justice. They create the opportunity for either side to pay them large sums of money to create their perfect jury.
The novel The Runaway Jury by John Grisham, although fiction, perfectly captures attorneys’ reliance on this new profession. In the novel, the jury consultant firm “gathered the evidence, took the photos, recorded the voices, sent the blondes in tight jeans into the right situations. Carl and his associates flirted around the edges of laws and ethics but it was impossible to catch them. After all, there is nothing illegal or unethical about photographing prospective juror.” This raises concerns other than having attorneys dismiss jurors because they will not support that sides’ agenda. This calls into question a citizen’s’ right to privacy and how that is affected by this process becoming so in depth. It is unfair to subject citizens to this treatment when they are only participating in jury duty because they have to. If peremptory challenges did not exist then this profession would not be able to thrive as much as it is. It would also result in more unbiased juries.
At what cost is the United States allowing for justice to suffer? Juries are the decision makers. Their goal is to make the trial fair and uncover the truth. Attorneys do not seem to have much respect for the truth or for selecting an impartial jury. Their main hope is to select one that will give them their desired verdict. This seems more acceptable when thinking about tort cases, in which it is more fair that each side wants to “win”. Tort cases occur when an event causes one person harm either intentionally or in negligence. It is reasonable that each side believes they are right. Criminal cases occur when a law has been broken and one person is suspected of committing it. They are used to find out the truth and determine if the person is innocent. While tort cases should also be about justice, criminal proceedings have an even larger emphasis on justice. It should not be about locking someone away when they are actually innocent because they jury was created in a pro-prosecution light. This is why reform is needed. It is unfair to obstruct justice and it is unfair to use these citizens as pawns in a game.
The main two points of reform for voir dire would be to make the process happen quicker and to set a smaller limit on-or completely get rid of-peremptory challenges. This process adds, on average, more than two hours to each case that needs to be heard. Eliminating this process or making it at least shorter, would expand every courthouse’s capacity in terms of number of cases that it can hear. In terms of the peremptory challenges, giving three of them to each side is more than fair and more than enough to eliminate those who are extremely biased toward either side. Eliminating peremptory challenges all together would make this process extremely quick, though it is likely that this should be implemented in steps. These are simple solutions that would not cost anything to implement. In fact it would only make the system more effective as they would be able to go through cases quicker. In turn it will make the citizens happier because they will have to wait around less. It was also give people more confidence in verdicts, as the attorneys are not simply trying to seat the jurors who agree with them. These are overall more effective ways to deal with this process.
Another way of examining these solutions is in comparison to how other countries handle this process. The first point of comparison is typically England. England seats a jury within minutes because it is simply the first twelve eligible citizens picked at random. Voir dire does not even happen inside of the courtroom. With this process, they are still able to eliminate jurors who are not impartial by removing any potential jurors that have conflict of interest before they seat the jury. England also bans certain professions from sitting on cases, like policemen, clergy, and justices. This is for the reason that they could be biased in deciding the case. This allows for better use of every court actor’s time and every citizen’s time. They also do not have peremptory challenges in England, which again results in a quicker process. If the United States was able to adopt a system that is similar to England’s then time and money would be saved. England has also not seen a very big change in the conviction rate as well. Many people do not understand that the process could be simpler. This is much more effective and allows the selection process, and the entire trial, to occur in a shorter amount of time.
Another country that has a faster and also well-equipped system is Malta. Malta has similar criteria for jury members as the United States. They must be twenty-one years old, a citizen of Malta and must not be a felon. They also exempt people from certain professions as well. People who work as government officials, soldiers, doctors, pharmacists, teachers and police officers are all exempt. Some of these are because they are in prestigious positions, but others are because they could potentially be biased in a trial. They seat a jury based of citizens being randomly selected off a list. Unlike England, they have peremptory strikes, however they are rarely used and only given to attorneys in extremely small amounts. They have a system that is similar enough to the United States that they could adopt it. Malta has a court system is able to function quickly and efficiently without having a long, complicated voir dire process or peremptory strikes. The United States could change their system.
The effectiveness of peremptory challenges also come into question when examining how attorney’s personal biases may come in to play during the selection process. Although prosecutors say that race does not come to their mind during this process, one study found that the way they question different races is subtly different enough that it can lead to peremptory strikes. Which will then lead to a jury that is disproportionately one race. The Supreme Court decided in the Baston decision that prosecutors are prohibited from using race based peremptory challenges. This is protected under the Equal Protection Clause. This allows for defense attorneys to call in to question a prosecutor’s peremptory challenge if they believe it is based on race. It is up to the judge to decide if it was race based or not. Since this decision exists, many attorneys may have unknowingly found their ways around this. In most cases they are carrying implicit biases that they are unaware of. If they have even the slightest thought that a black juror could feel more sympathy for a black defendant, that could result in this racial disparity.
Implicit biases in any kind of court process is dangerous and could sway a verdict one way or another. This has great implications on justice as well. Justice cannot be properly performed if the jury is not representative of the population. Since this is a core piece of the jury it is important that it is followed. This will not happen if the prosecutor is biased. While it has been found that attorney-conducted voir dire results in more honest responses from the potential jurors than judge-conducted voir dire, it is still important to keep a close eye on the attorneys throughout this process. The voir dire process is still extremely skewed in terms of what the attorneys want the verdict to be.
Implicit biases do not only reside with attorneys. It also has a place in the judges. One study found that judges have the same implicit biases that that other citizens have. What is the difference between judges and average citizens? Judges’ implicit biases happens to weigh in on influential decisions and in the jury selection process. They choose who to believe when a Batson challenge occurs. There is also support for the idea that juries and judges remember events in racially biased ways. This then can affect verdicts. One study found that judges are less likely to pick out implicit biases in potential jurors than attorneys are.
This leads to many questions about how implicit biases of different races influences the process jury selection. If the jury was truly selected at random then there would be no worries about implicit biases concerning race. Randomness and representativeness will be ensured by the system itself. People who are extremely biased could be removed before they even enter the courtroom. There would be no need for lengthy Supreme Court cases on the issues of race in voir dire. Implicit biases are important to address outside of this one reform, but the issue would cease to exist if voir dire was truly random. This continues to make the process complicated and it highlights how much simpler it could be.
A study by Johnson and Haney results in them concluding that voir dire is effective and that much of the called for reform is misplaced. In their study they observed four different cases go through the voir dire process. They recorded how long each of them lasted, measured the effectiveness and were also able to interview some of the jurors who were dismissed. They had an average length of four hours and fifty five minutes, with the longest one lasting eight hours. Johnson and Haney argue that this was warranted as it was the case with the most serious charges. Though as stated earlier, most courts voir dire lasts two hours and that is a long time. In that amount of time each side could have already presented its opening statements. Nevermind spending an entire day on just picking a jury. In their interviews with the jurors who were removed, none of them said anything negative about their experience. However, they did say that they believed the attorneys were picking the jurors that seemed as though they were on their side. Though the study still claims that the process is effective because the attorneys were able to rule out the extremes on either side. This only takes into account one goal of the voir dire process.
There is much wrong with this argument and the conclusions drawn in this study. First, they do not have a representative sample. They only interviewed eighteen of the jurors and only observed four cases in the same state. This could potentially warrant a conclusion in that particular state, though they should complete more observations. Their analysis of the time spent on voir dire is reported as though it was very short. Though spending close to five hours on a part of a trial before the trial has even started sounds quite trivial. In the interviews, even though the removed jurors did not identify it as such, they were saying that the process was not conducted fairly. Whether they did not want to sound anti-government or wanted to please the interviewer, they were essentially describing the main problem with voir dire and peremptory challenges. Though since they did not have any criticisms about the process they went to, the researchers took their feedback as positive. Although they believed the attorneys were effective in removing the extremes, they removed a good amount of people who said they believed in the presumption of innocence. This seems like someone who would be an ideal, unbiased juror, though they were still not chosen and they were further questioned after they said they believed in it. There is no real basis against voir dire reform based on this one study.
Though one bright idea that this study does suggest is having jurors fill out questionnaires about their demographics and other such questions that do not need to be asked in person. These would most certainly be effective and are already being used across many states. Some questions should be administered in person since it is easier for a person to lie on a piece of paper than in person, but it still does not need to be as long of a process as it currently is. This is one simple method that would not get many people angry. However it also will not do much to promote justice, it will only save time.
There would have to be a fair amount of policy changes to reform this topic. They would mainly be focused on changing practices and the way the jury selection process is completed. As stated in United States v. Gupta, it is a harmless part of the process. It does not need to be drawn out. This whole process mostly happens in practice. It does not need to be a major constitutional change. Reform would make the process happen faster. Reform would cause less racially charged issues. Reform would create justice. The Baston decision can only go so far to try to prevent racial inequality in jury selection. Implicit biases run rampant in court actors and fixing the selection process would result in fairer trials.
But this is an issue that could be fixed by adopting a system similar to England or Malta. The United States first based their system off of England, and now is a time that they should revisit the way they have evolved. They need to explore how England has changed with the times and see how they can change as well. It is possible to have a more efficient court system. One that does not allow its citizens to sit idle all day. One that actually ensures justice and gives everyone a fair chance. Somewhere down the line the United States forgot what juries were meant to be for, it is about time that they start remembering.
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