IN SEARCH OF IMPARTIALITY
The Sixth Amendment right to an impartial jury is rooted in “the essential demands of fairness.” Aldridge v. United States, 283 U.S. 308, 310 (1931). Prosecutors and defense attorneys alike use the pre-trial process of voir dire to determine if a potential juror can be fair and impartial during trial. During voir dire, the prosecutor, defense attorney and the judge question jurors in order to identify any potential biases, prejudices, or conflicts of interest that may improperly impact case outcomes. If either party identifies potential biases, that juror may be eliminated "for cause" meaning the challenging party can articulate a legitimate basis for eliminating that juror. Peremptory challenges are the vehicle litigants use to express an arbitrary challenge to a potential juror "without cause."
Peremptory challenges are a “creature of statute,” Ross v. Oklahoma, 487 U.S. 81, 89 (1988), that aren't derived from Sixth Amendment rights or in the right to an “impartial jury.” See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000). Therefore an improper denial of the use of a peremptory challenge is not a Sixth Amendment or Federal constitutional violation.
One of the primary issues impacting jury impartiality in jurisdictions across the country is the under-representation of racial and ethnic minorities. This dynamic has historic origins as women and minorities were systematically excluded from jury service. The Supreme Court has since attempted to address these issues by generating a rule that requires juries be selected from a "fair cross-section" of society.
The selection of a petit jury from a representative cross section of the community is an essential component of the Sixth Amendment right to a jury trial.
-Taylor v. Louisiana, 419 U.S. 522, 528 (1975)
Jury pools that are a result of “systematic exclusion” in the selection process violate the fair cross section guarantee.
In order to establish a prima facie violation of the fair-cross-section requirement, the defendant must show (1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process." Duren v. Missouri, 439 U.S. 357, 364 (1979).
The Court has not defined the term "distinctive," but indicated that it " must be linked to the purposes of the fair cross-section requirement." Lockhart v. McCree, 476 U.S. 162 (1986), In Taylor v. Louisiana, the Court described the purpose of the fair cross-section requirement as (1) "guard[ing] against the exercise of arbitrary power" and ensuring that the "common sense judgment of the community" will act as "a hedge against the overzealous or mistaken prosecutor," (2) preserving "public confidence in the fairness of the criminal justice system," and (3) implementing our belief that "sharing in the administration of justice is a phase of civic responsibility."
ISSUES IMPACTING JURY REPRESENTATIVENESS
Reasons vary as to why juries still lack the diversity of the communities from which they are drawn. Below are some examples of how certain processes may ultimately create less diverse jury pools.
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A Defender’s Guide to Federal Evidence: A Trial Practice Handbook for Criminal Defense Attorneys
This Guide to Federal Evidence is the only federal evidence handbook written exclusively for criminal defense lawyers. The Guide analyzes each Federal Rule of Evidence and outlines the main evidentiary issues that confront criminal defense lawyers. It also summarizes countless defense favorable cases and provides tips on how to avoid common evidentiary pitfalls. The Guide contains multiple user-friendly flowcharts aimed at helping the criminal defense lawyer tackle evidence problems. A Defender’s Guide to Federal Evidence is an indispensable tool in preparing a case for trial.
Modern Digital Evidence & Technologies in Criminal Cases
Modern cases need modern defenses, and modern lawyers can't practice with an outdated playbook. This program is a contemporary training that identifies emerging technologies and digital evidence encountered in today's criminal cases and arms you with the tools necessary to combat expert witnesses, prosecutorial overreach, and an uneducated judge and jury. This comprehensive CLE program covers both general aspects of new technologies as well as practical courtroom application and legal challenges to the use of these new technologies.
Top Shelf DUI Defenses: The Law, The Science, The Techniques (2021)
If you are serious about being an effective DUI defense advocate, or if you’re considering adding DUI defenses to your portfolio, you need to know the latest scientific and legal strategies to optimize your success at trial. Learn from the best-of-the-best in the field in this unique CLE Program, updated for 2021.
Defending Modern Drug Cases (2021)
From challenging the arrest and seizure to picking a jury and cross-examining police officers, defense attorneys handling drug cases must be able to construct a defense that will increase the chances of the client getting a positive result for your client.
Effective motion practice, juror selection, and storytelling have never been more important. This seminar will introduce defense counsel to techniques that have been used at recent drug trials to rebut specific claims and overcome the emotion created in today’s criminal legal system.
Since the onset of the COVID-19 pandemic, court administrators have faced increasing challenges to ensuring that juries are representative. The pandemic’s disproportionate impact on communities of color, elderly and lower-income individuals, and those with predisposed health conditions have exacerbated existing racial, socioeconomic, and gendered dynamics on juries. Given these trends, during the height of the pandemic, young white men became the most likely group of individuals to show up for jury duty. As vaccine rollout continues and the risk associated with participating in a jury trial decreases, these demographics are beginning to shift. Despite this, the systemic issue of unrepresentative jury populations remains – with COVID-19 merely bringing to light the existing inequities in an unjust system.
Fundamental Issues with Jury Source Lists
Most jurisdictions draw their potential jurors from some combination of voter registration rolls and licensed drivers/state identification records. If voter registration rolls tend to be filled with older, white and more affluent individuals, one should expect the juries drawn from these rolls to be similarly older, white and more affluent. Similarly, every state has some version of a categorical exclusion from serving on juries for individuals who are incarcerated, or have a record of felony or misdeameanor crimes. These laws bar over 20 million people, reducing racial diversity by disproportionately Black and Latinx people (Prison Policy Initiative, 2021).
Jury Service is Cost-Prohibitive for Some
In other cases, jury service is difficult for those who don't have the means to take time off from work or transportation to the courts. If racial diversity tends to decrease as incomes increase, one should again expect juries to be less racially diverse.
Discriminatory Use of Peremptory Strikes in Jury Selection
In Batson v. Kentucky, 476 U.S. 79 (1986), the Supreme Court created a two-step inquiry in order to determine whether the use of peremptory strikes were racially biased. In what is now known as a Batson challenge, defendants may object to the use of peremptory strikes on the ground that they are being used to exclude a potential juror on the basis of race. In Georgia v. McCollum, 505 U.S. 42 (1992), the Supreme Court expanded that rule to bar criminal defendants from using peremptory strikes to exclude members of a jury on the basis of race. In J.E.B. v. Alabama, 511 U.S. 127 (1994), the Supreme Court banned strikes based on gender. Despite repeated admonishments from the Supreme Court regarding the systematic preclusion of certain groups from jury service, the practice continues across the country.
In 2010, the Equal Justice Initiative conducted a comprehensive study that showed that the racially biased use of peremptory strikes still persists. Indeed, in his prescient concurring opinion in Batson, Justice Thurgood Marshall cautioned that,
“any prosecutor can easily assert facially neutral reasons for striking a juror,”
Study after study has shown that the discriminatory use of peremptory strikes has disproportionately eliminated black jurors. The detrimental impact of these practices cannot be overstated since black and other racial and ethnic minorities are over-represented as criminal defendants.
Importantly, research has shown that that diverse juries tend to deliberate longer, discuss more evidence and make fewer factual errors. One study in Florida indicated that all-white juries convicted black defendants 16 percent more often than white defendants.
Given what's at stake during the course of a criminal prosecution, it is immensely important that legal system stakeholders evaluate what challenges and barriers are impacting the representativeness of juries and work to effectuate change.
If you are interested in obtaining Training and Technical Assistance (TTA) related to strengthening Sixth Amendment protections in your jurisdiction, click the link below.
|APPLY FOR TTA HERE|
RESOURCES ON IMPARTIAL AND REPRESENTATIVE JURIES
- The Center for Jury Studies: This tool can be used to look at state jury systems
- Assessing and Achieving Jury Pool Representativeness, By Judge William Caprathe (ret.), Paula Hannaford-Agor, Stephanie McCoy Loquvam, and Shari Seidman Diamond.Judges’ Journal • Vol. 55 No. 2, 2016.
- Principles for Juries and Jury Trials
- Miller-El v. Dretke, 545 U.S. 231 (2005)
- Miller-El v. Cockrell, 537 U.S. 322 (2003)
- J.E.B. v. Alabama, 511 U.S. 127 (1994)
- Georgia v. McCollum, 505 U.S. 42 (1992)
- Batson v. Kentucky, 476 U.S. 79 (1986)
- Duren v. Missouri, 439 U.S. 357, 364 (1979)
- Castaneda v. Partida, 430 U. S. 482 (1977)
- Taylor v. Louisiana, 419 U.S. 522 (1975)
- Peters v. Kiff, 407 U.S. 493 (1972)
REPORTS AND STUDIES
- Race and the Jury (EJI, 2021).
- Rigging the jury: How each state reduces jury diversity by excluding people with criminal records (Prison Policy Initiative, February 2021).
- Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors (Berkeley Law, Death Penalty Clinic, June 2020)
- Motion: Prosecutors excluded black jurors in seven death-penalty cases (September 2018)
- Report on Jury Selection Study (Barbara O’Brien & Catherine M. Grosso, December 2011)
- Illegal Racial Discrimination in Jury Selection: A Continuing Legacy (Equal Justice Initiative, 2010)
- On Racial Diversity and Group Decision-Making: Identifying Multiple Effects of Racial Composition on Jury Deliberations (Samual, R. Sommers, Journal of Personality and Social Psychology, 2006)
LAW REVIEW ARTICLES
- Offit, Anna, Benevolent Exclusion (2020). Wash. L. Rev. (2021 Forthcoming), SMU Dedman School of Law Legal Studies Research Paper No. 490.
- Yokum, David V. and Robertson, Christopher T. and Palmer, Matt, The Inability to Self-Diagnose Bias (July 18, 2019). 96 Denver Law Review 869 (2019).
- TRichard L. Jolly, The New Impartial Jury Mandate, 117 MICH. L. REV. 713 (2019).
- Thomas W. Frampton, The Jim Crow Jury, 71 Vanderbilt Law Review 1593 (2018).
- No Records, No Right: Discovery & the Fair Cross-Section Guarantee Nina W. Chernoff, 101 Iowa L. Rev. 1719 (2016).
- Marder, Nancy S., "The Changing Composition of the American Jury" (2013). 125th Anniversary Materials. 5.
- Cynthia Lee, A New Approach to Voir Dire on Racial Bias, 5 U.C. IRVINE L. REV. 843 (2015).
- Jeffrey Bellin and Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075 (2011).
- Sanjay K. Chhablani*, Re-Framing the 'Fair Cross-Section' Requirement, 13 U. Pa. J. Const. L. 931 (
- Jasmine B. Gonzales Rose, The Exclusion of Non-English Speaking Jurors: Remedying a Century of Denial of the Sixth Amendment in the Federal Courts of Puerto Rico, 46 HARV. C.R.-C. L. L. REv. 497, 498 (2011).
- Paula Hannaford-Agor, SYSTEMATIC NEGLIGENCE IN JURY OPERATIONS: WHY THE DEFINITION OF SYSTEMATIC EXCLUSION IN FAIR CROSS SECTION CLAIMS MUST BE EXPANDED, Drake Law Review, Vol. 59, pp. 761, 2011.
- Justin D. Levinson & Danielle Young, Different Shades of Bias: Skin Tone, Implicit Racial Bias, and Judgments of Ambiguous Evidence, 112 W. Va. L. Rev. (2010).
- Dale Larson, Fair and Implicitly Impartial Jury: An Argument for Administering the Implicit Association Test During Voir Dire, 3 DePaul J. for Soc. Just. 139 (2010).
- What is the Impact of Racially Diverse Juries?, By Michael Tarm, The Appeal, March 15, 2020.
- As Jury Attendance Declines, Lackawanna Judges Can Nix Peremptory Challenges. Will Others Follow?, By Max Mitchell, Law.com, November 19, 2020.
- Resumption of jury trials in D.C. Superior Court remains uncertain as victims, families long for justice, By Keith Alexander, The Washington Post, October 23, 2020.
- California Adopts New Laws to Fight Racism in Jury Selection, By Kyle C. Barry, The Appeal, September 30, 2020.
- Judge Declines to Halt State's First COVID-19 Trial After Jury Selection Challenge, By Charles Toutant, Law.com, September 28, 2020.
- After 6 Murder Trials and Nearly 24 Years, Charges Dropped Against Curtis Flowers, By Nicholas Bogel-Burroughs, The New York Times, September 4, 2020.
- There’s overwhelming evidence that the criminal justice system is racist. Here’s the proof., By Radley Balko, The Washington Post, June 10, 2020.
- Why Is It So Easy for Prosecutors to Strike Black Jurors?, By Gilad Edelman, The New Yorker, June 5, 2015.
- Something has gone wrong with jury selection in Mississippi, and the Fifth Circuit is to blame, By By Ian Millhiser, Thinkprogress, April 5, 2018.
- The truth about the US jury system, By David Anderson and Jessica Orwig, Business Insider, February 27, 2018.
- Exclusion of Blacks From Juries Raises Renewed Scrutiny, By Adam Liptak, The New York Times, August 16, 2015.
- Black jurors more likely to be struck from Caddo juries, By Alexandria Burris, The Shreveport Times, August 17, 2015.
- Next Pre-Trial Question for Jurors: Are You Vaccinated? Bloomberg Law, May 2021
- AZ Supreme Court to end peremptory challenges to potential jurors, By Paul Davenport, Associated Press, 2021.
OTHER LEGAL SOURCES
VIDEOS, BLOGS, WEBINARS, PODCASTS
This video is used with the express permission of the United States District Court for the Western District of Washington.
The video was created by a committee of judges and attorneys and will be presented to jurors in every case with the intent of highlighting and combating the problems presented by unconscious bias. (March 2017).
Patrick Bayer on Impact of Race on Juries in Two Florida Counties
Juries formed from all-white jury pools in Florida convicted black defendants 16 percent more often than white defendants, a gap that was nearly eliminated when at least one member of the jury pool was black, according to a Duke University-led study. (April 2012).
The big problem with how we pick juries
Juries: Last Week Tonight with John Oliver (HBO)
(warning: explicit language)
John Oliver takes a look at why people of color are routinely excluded from becoming jurors, who their absence impacts, and what we can do to create a fairer system.
Illegal Racial Discrimination in Jury Selection
Equal Justice Initiative video on the origins of racial discrimination in juries.
Twenty Million Angry Men: A Conversation about the Importance of Including People with Felony Convictions in Our Jury System
Offered by the Harvard Radcliffe Institute in collaboration with the Institute to End Mass Incarceration at Harvard Law School, this program explores questions of jury service, civic participation in the criminal legal system, and the importance of such participation by people with prior convictions.
More Perfect Podcast
"At the trial of James Batson in 1982, the prosecution eliminated all the black jurors from the jury pool. Batson objected, setting off a complicated discussion about jury selection that would make its way all the way up to the Supreme Court. On this episode of More Perfect, the Supreme Court ruling that was supposed to prevent race-based jury selection, but may have only made the problem worse." For more information, click here.