Last week the issue of non-citizen jurors was in the news because the CA Assembly passed AB 1401, a bill that would allow non-citizens to serve on state juries if they are in the country legally.
Although the idea of non-citizen jurors may seem like a novel concept it has actually been around for hundreds of years. For example, England, for close to 500 years, (the practice was eventually abolished by the Naturalization Act of 1870) permitted the jury de medietate linguae, or “jury of the half tongue.” In a jury de medietate linguae a non-citizen defendant was allowed the right to request that half of the jury consist of non-citizens. The practice was used to help non-citizens receive fair treatment under the law. Some have advocated resurrecting the jury de medietate linguae to improve minority representation in the jury box.
In addition to recommending the jury de medietate linguae, defense counsel, representing non-citizen defendants, have repeatedly filed motions requesting that non-citizens be included in the jury array (list of jurors summoned to appear for jury duty). Generally speaking, judges have ruled against these motions finding that the possible prejudice to the defendant's 6th Amendment Rights is outweighed by the government's substantial interest (understanding the proceedings and committment to carry out the government's laws) in having only U.S. citizens serve as jurors.
I find these rulings somewhat dubious because being a citizen in and of itself does not ensure that an individual understands the trial proceedings or is committed to following the laws of this country. This is reflected every day in voir dire where many citizens summoned to jury duty regularly state that the defendant must testify or prove his innocence. These same citizens then go on to routinely ignore the rules about discussing or researching the facts in the case.
AB 1401 does not remove any requirement that jurors understand the English language; it only expands the number of individuals eligible for jury service. This bill also increases the likelihood that those tried for criminal offenses in CA are truly judged by a jury of their peers.
In addition, by having non-citizen jurors, we can ensure that those receiving the benefits of living in the U.S. are also fulfilling the civic responsibilities that come with those benefits. This change may also lead U.S. citizens to better appreciate and value the importance of serving on a jury and how such service helps to preserve democracy.
It should also be noted that very few seem bothered by having non-citizens serve in our armed services where they protect this country and safeguard our constitutional principles. However, for some reason, these same individuals cannot be trusted to serve as jurors. Ironically, non-citizen service members can actually serve on military juries if summoned.