More on What's Wrong with the Modern Jury:
How Juror Selection Can Be Improved


Friday, Feb. 20, 2004

In my last column, Part One of a series, I recounted the Founders' vision of the purposes juries could accomplish, and described the dissatisfaction many citizens feel today with the performance of modern juries. This dissatisfaction is understandable: juries these days do sometimes make decisions that seem out of step with American values and common sense.

However, I believe the erratic performance of modern juries is largely a function of how we choose juries, and how we treat them. To put the point another way, if juries oftentimes do things that don't reflect America, this may be because we assemble juries who don't look like America, and then treat jurors in ways no American would want to be treated.

In today's column, I shall discuss a few ways to improve the current processes of juror selection. And in a later column, I will take up reform measures that increase the respect we pay to people who serve on juries.

The First Reform: Keep Highly Educated Jurors in the Pool

Earlier in the nation's history, jurors were empanelled under the elitist principle that only the propertied and the highly educated possessed the habits of citizenship needed to serve well. Now that we know better, it is perverse that professional and literate citizens are often exempted or struck from the jury pool.

When juries produce stupid results, it is often because we let interested parties - through their lawyers -- pick jurors in stupid ways. My point is not that less educated jurors should not be on juries; it is that more educated jurors should not so frequently be excluded from them.

By and large, the first 12 persons picked by lottery should form the jury. The actual jury - and not just the jury pool summoned for each case - should be as representative of the entire community as possible.

The Second and Third Reforms: Eliminate Peremptories; Restrict "For Cause" Challenges

Toward this end, the peremptory challenge (a device that allows lawyers to remove a specified number of jurors from the panel without having to show "cause") should be eliminated; such challenges allow lawyers for plaintiffs and defendants to manipulate demographics and chisel an unrepresentative panel out of a representative pool. Juries should represent the people, not the parties.

As I observed in my prior column, juries were often analogized by the Framers to other institutions of government, such as legislatures and other elected offices. Moreover, and relatedly, jury service was often likened to voting - both were considered core parts of a political rights package. But all these analogies cut against the use of peremptory challenges: Our society does not let an individual defendant hand-pick the legislature to fashion the norms governing his conduct; or the prosecutor who pursues him; or the grand jury that indicts him; or the judge who tries him; or the appellate court that reviews his case. And we are very uneasy about depriving citizens of the right to vote in elections on the basis of vague and possibly discriminatory criteria.

Several major arguments have been advanced to support peremptory practice. First is the idea of legitimacy: The parties will respect a decision reached by a body they helped to select.

But what about the legitimacy of verdicts for the rest of society - We the People, whom the jury system is supposed to serve? After all, the parties regard the trial judge, the appellate court, the legislature, and the grand jury as legitimate, even though the parties did not personally select any of them. In essence, repeat-player lawyers and strategic litigants employ this argument, under the banner of principle, to disguise a power grab at the expense of the jury.

Second, some people argue that peremptories allow counsel to probe jurors with incisive questions during the selection process to unearth "cause" to remove particular jurors. Lawyers need peremptories to vigorously conduct such questioning, the argument goes, lest they offend a juror for whom no provable grounds exist for a "for cause" dismissal.

My response here, however, is that "for cause" challenges also should be limited. If "for cause" challenges are restricted, the prophylactic argument for peremptory challenges collapses.

In my view, the standard governing "for cause" strikes of jurors should not be very different from the standard by which judges decide whether to recuse themselves, which looks to whether there is evidence of actual or apparent bias. (Indeed, a single judge who might be biased presents a much larger problem to a fair and impartial adjudication than does a possibly biased juror, who is, after all, only one of twelve.)

Unless a juror actually is, or appears to be, biased, he or she should not be excused "for cause." Some of the typical "for cause" excuses would then be eliminated.

If we restrict "for cause" challenges this way, then there is little or no reason for us to retain peremptory challenges as a part of our system -- and very good reason to get rid of them. Indeed, the Supreme Court has made clear that no constitutional right to peremptories exists: They are a relic of an imperfectly democratic past.

At the Founding, one suspects, peremptories were exercised mainly as a polite way of dismissing folks with personal knowledge of the parties. In a homogeneous jury pool, peremptory challenges would rarely skew the demographics of the eventual jury. Accordingly, at that point, peremptories, while unnecessary, were likely rather innocuous.

In the modern era, however, peremptories have become pernicious. Relying on racial and gender stereotypes, lawyers have often exploited peremptory challenge to get rid of jurors in a way that deprives them of their right to participate as democratic equals. For instance, an African-American defendant may be forced because of peremptory challenges to face an all-white jury, as one by one, every potential African-American juror is struck, for no reason but prosecutorial racial stereotyping.

The Supreme Court has responded to this problem, in cases such as Batson v. Kentucky

-- but the very nature of peremptory challenges (particularly, the fact that they need not be justified) makes the problem difficult to solve. Lawyers can explain their strikes on the basis of idiosyncratic hunches, even if these hunches are not the real reason for the strikes.

Statistics can help expose some discrimination -- but due to the small size of juries, statistics alone cannot really cure the evil. With only a handful of peremptories, there are simply not enough data points to prove that it was racism, rather than lawyer hunches, that led to the exclusion of all potential African-American jurors. If juries had a hundred members, statistics might work better; with only twelve members at most (and fewer in many civil juries), and five or six peremptory strikes, statistics won't do the job.

Of course, there's no question that the Fifteenth and Nineteenth Amendments prohibit the disenfranchisement of Americans on the basis of race or gender -- including their disenfranchisement as jurors. But there's still a big question as to whether we can truly honor these Amendments, and yet retain peremptory challenges as part of our jury system.

Indeed, policing peremptory challenges to ensure that they are free from race or gender bias has proven - as a matter of practical experience -- to be nearly impossible. The Supreme Court has erected elaborate procedural frameworks to try to ferret out illicit race and/or gender prejudice. But the simple fact is that in practice, it is be virtually impossible for judges to see through lawyer pretexts and punish invidious decisions.

By contrast, discrimination is easier to prove in other settings. For instance, an employer's idiosyncratic explanations for terminating an employee could be contrasted with hard evidence, such as the employee's performance evaluations, or sales figures, or the like. But with jurors, there is no similar comparison: No one is allowed to show what a fair, excellent juror he or she would make.

Moreover, often lawyers do base non-invidious peremptory challenges on bizarre personal superstitions (in a way that employers do not). If a tattooed juror was the holdout in her last case, a lawyer may never pick a tattooed juror again -- regardless of the irrelevance of the tattoos. So just as decisions that are supposedly based on hunches may actually be racist or sexist, decisions that seem racist or sexist may actually be based on a superstition.

In the end, the only real way to eliminate improper discrimination in peremptories is to eliminate peremptories themselves. Any juror who is truly biased can be removed through "for cause" challenges, even in the limited form I have described.

The Fourth Reform: Restore the Notion of Duty, and the Sense of Exercising a Right

Until now, I have focused largely on the selection of the jury among those who've showed up at the courthouse. But the question of who is showing up in the first place is also crucial.

Jury service is a right, but few are eager to exercise that right. Civics classics should focus on the fact that ability to sit as a juror is a right -- a right that has not always been extended to all Americans. Keeping in mind that white, propertied, highly-educated males once kept for themselves the prerogative of serving on juries, may inspire more potential jurors to exercise that same prerogative.

Currently, though, that's not the reality. A few years back, the Economist magazine reported that fully half of Californians called for jury duty in the state's criminal courts simply ignore the summons. Citizens should not escape so easily. Jury service is not just a right, but also a duty -- and this duty must be enforced.

To begin with, exemptions should be extremely limited. If you are the brother-in-law of the plaintiff, or if you have major surgery scheduled, you should, of course, be excused. But you should not be excused merely because you happen to read the newspaper or work in a profession (including the legal profession).

The idea of the jury is rooted in equality; just as all defendants are treated equally before the law, all jurors have equal claims, as well as obligations, to play a part in the administration of justice. Limiting exemptions would expand the size of the jury pool, enforce the universality of required service, and raise the average education level of juries.

And how should this obligation be enforced? Progressive fines are one option. If you miss your date, you should pay one week's salary. (Flat fines, by contrast, would overpenalize the poor and the middle-class, and create incentives for highly-paid citizens to dodge service.)

If for some reason fines don't work, perhaps we could consider a more radical recoupling of jury service with voting in elections: If you opt out of your responsibilities of collective self-government, fair enough - but then you forfeit all of your political participation rights.

On this view, you are not entitled to vote outside juries if you are unwilling to serve and vote inside juries. While such a coupling of jury service and other voting rights might pose certain constitutional questions, it may still be worth considering.

The Fifth (Possible) Reform: Relax Unanimity?

Some may argue that eliminating peremptories, and forcing citizens to take their duty to serve seriously, may result in more hung juries; as juries are more inclusive, they may include more eccentric outliers who will prevent agreement between all twelve persons. This possibility leads me to wonder whether perhaps, just perhaps, we should move, even in criminal cases, away from an absolute unanimity requirement toward a supermajority rule on juries.

Founding history on this point is relatively clear - a criminal jury had to be unanimous. But this clear understanding was not explicitly inscribed into the Constitution, and the modern Supreme Court has upheld state rules permitting convictions on 10-2 votes. (England today also permits 10-2 verdicts even in criminal cases.)

Two big arguments support my suggestion that nonunanimous verdicts should be upheld, if their constitutionality were to be challenged in court. First, most of the analogies between juries and other institutions cut against unanimity. Majority or supermajority rules are used by legislatures, appellate benches, voters and grand juries. (Even in the high-stakes context of impeachment, for example, a two-thirds vote of the Senate -- not a unanimous vote -- is required for conviction.)

Second, and more important, at the Founding unanimity may have drawn its strength from certain metaphysical and religious ideas about Truth that are no longer plausible -- to wit, the idea that all real truths would command universal assent - and from the fact that blacks, women, the poor, and the young were excluded from voting and jury service. Peremptory challenges made juries even more homogeneous.

Now, however, we have eliminated undemocratic barriers to jury service and permitted all adult citizens to serve on juries (and eliminating peremptories, as I have suggested, would remove even more barriers). In this context, preserving unanimity might also be undemocratic, for it would create an extreme minority veto of a kind unknown to the Founders.

In this column, I have addressed ways to make juries more representative. In a later installment of the series, I shall consider ways that they might become more deliberative and more respected, as well.

Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author of the Cohen and Varat constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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