Juries

Religious Convictions

Anna Offit

Religious Convictions

The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious conviction in American jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the anti-discriminatory Batson doctrine has given religious beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. On the other, they seek to reinforce the primacy of a secular legal perspective on justice—even if it conflicts with a prospective juror’s deeply-held religious beliefs and the broader imperative to build inclusive juries.

The open question is how legal actors—both judges and lawyers—should navigate the ambiguous position of religion in voir dire to build juries. This Article draws on original empirical research with judges and lawyers to show that in today’s legal system the treatment of religious conviction is strikingly inconsistent, guided by personal bias, and affected by misunderstandings of the particular features of various religious traditions. To address this arbitrary treatment of religion, this Article outlines a new approach to navigating religious convictions in jury selection proceedings. Special attention is paid to the prevention of exclusion, as well as the practice of empaneling jurors with certain religious commitments to gain a strategic advantage. The Article concludes by making the case that insofar as the legitimacy of the American jury system hinges on the inclusive involvement of a diverse—and diversely religious—public, it must find a way to reconcile religious convictions with lay participation

The Interested Expert Problem and the Epistemology of Juries

Alexander Guerrero

Abstract

The existence of experts raises a host of interesting questions in social, legal, and political epistemology. This article introduces and discusses interested experts – people who are experts on some topic, but who also have a distinct set of values and preferences regarding that topic, so that they are not well-described as “disinterested” parties. Interested experts raise several distinct problems in social, legal, and political epistemology. Some general questions arise: can we rationally or justifiably form beliefs relying on interested expert testimony? Do they constitute knowledge? Under what circumstances? This article focuses on a specific question in legal epistemology: should interested experts be allowed to serve on juries and, if so, should it be permissible for lawyers to strike them from the pool of potential jurors? Concentrating on this question will provide insight into the more general questions concerning the epistemology of testimony with respect to interested experts, while also providing concrete recommendations for jury reform to improve the epistemic performance of juries.

The Constitutional Right to Bench Trial

Guha Krishnamurthi

University of Oklahoma College of Law

Abstract

Sometimes juries are prejudiced against the defendant. Juries may be predisposed to find a defendant guilty because of the nature of the charges. They may be predisposed to find a defendant guilty because of the reputation and demeanor of the defendant. They may be biased against a defendant for bigoted reasons, either consciously or not. Juries may also lack the ability to understand and apply the law in some cases. And indeed such kinds of juror prejudice may pervade the jury pool.

The resulting pervasive juror prejudice imposes constitutional harms on the defendant. Among other things, pervasive juror prejudice contravenes a defendant’s presumption of innocence and a defendant’s right to fair trial procedures. The way our current law handles such pervasive juror prejudice is inadequate: Courts are unlikely to delay trial when appropriate, instead relying on voir dire and jury selection. But this is no solution, because voir dire and jury selection are unable to cure pervasive juror prejudice.

In this Article, I proffer the first comprehensive, multimodal argument that defendants have a constitutional right to bench trial. First, I explain that as a theoretical matter, providing the defendant with the unilateral option of a bench trial with the requirement of a reasoned opinion is the only effective way to combat pervasive juror prejudice. Second, I show that the empirical and historical evidence confirm that the problem of pervasive prejudice is substantial: it arises frequently, including in the most high-profile cases; prosecutors do refuse consent to bench trial in cases where prejudice may arise; and the purported solutions of voir dire and jury selection are ineffectual. Finally, I show that, as a doctrinal matter, the interpretation of the Sixth Amendment—including with respect to the right to waive counsel, the right to a unanimous jury trial verdict, and the Court’s response to racism in jury selection and jury deliberations—shows that the defendant has the unilateral right to bench trial.

Book Review: A Felon Among Us: Should Felons Be Allowed on Juries?

Michael Conklin

Abstract

This is a review of James M. Binnall’s new book, Twenty Million Angry Men: The Case for Including Convicted Felons in Our Jury System. The federal government and a majority of states have complete bans on felons serving on juries. Binnall makes a strong case for ending these bans, supported by his own personal experience as a felon who was denied jury service and by his own novel, empirical research. However, in his zeal to advocate for this position, he overstates favorable evidence and ignores potential counterarguments. This Review examines the strengths and weaknesses of Binnall’s arguments and provides missing counterarguments against allowing felons to serve on juries.

The Surprising Views of Montesquieu and Tocqueville about Juries: Juries Empower Judges

Renee Lettow Lerner

Abstract

Both Montesquieu and Tocqueville thought that an independent judiciary was key to maintaining a moderate government of ordered liberty. But judicial power should not be exercised too openly, or the people would view judges as tyrannical. In Montesquieu’s and Tocqueville’s view, the jury was an excellent mask for the power of judges. Both Montesquieu and Tocqueville thought that popular juries had many weaknesses in deciding cases. But, as Tocqueville made clear, the firm guidance of the judge in instructions on law and comments on evidence could prevent juries from going astray and make the institution a “free school” for democracy.

The article explores Montesquieu’s legacy concerning judges and juries in the arguments of both the Federalists and the Anti-Federalists. It also examines the American antecedents of Tocqueville’s idea of the jury as a school for democracy.

Benevolent Exclusion

Anna Offit

Abstract

The American jury system holds the promise of bringing commonsense ideas about justice to the enforcement of the law. But its democratizing effect cannot be realized if a segment of the population faces systematic exclusion based on income or wealth. The problem of unequal access to jury service based on socio-economic disparities is a longstanding yet understudied problem, and it will only be exacerbated by the unevenly distributed economic fallout of the COVID pandemic. Like race and sex-based jury discrimination during the peremptory challenge phase of jury selection, the routine dismissal of citizens who face economic hardship excludes not only people but the diversity of ideas, experiences, and frames of interpretation that characterize the American population. By failing to make sure that the poor can serve, we impoverish our shared understanding of doing justice.

This Article offers a historical and empirical account of how socio-economic exclusion cuts prospective jurors from juries. It argues that the dominant rationale for such exclusion is a perception that poor and otherwise burdened prospective jurors should be excused from jury service for their own benefit. The effect of this superficially benevolent rationale, I argue, has been the concealment and reinforcement of class-based jury discrimination. The Article concludes that addressing this seemingly benign but exclusionary practice is an essential task for legal reformers. Further, it recommends instituting structural changes that would make it possible for any eligible person to serve, regardless of income or wealth.

Keywords: discrimination, poverty, juries, litigation, democracy, criminal procedure, race discrimination, poverty law, prosecution, judicial discretion, defense attorneys

Playing by the Rule: How ABA Model Rule 8.4(g) Can Regulate Jury Exclusion

Anna Offit

Abstract

Discrimination during voir dire remains a critical impediment to empaneling juries that reflect the diversity of the United States. While various solutions have been proposed, scholars have largely overlooked ethics rules as an instrument for preventing discriminatory behavior during jury selection. Focusing on the ABA Model Rule 8.4(g), which regulates professional misconduct, this article argues that ethics rules can, under certain conditions, offer an effective deterrent to exclusionary practices among legal actors. Part I examines the specific history, evolution, and application of revised ABA Model Rule 8.4(g). Part II delves into the ways that ethics rules in general, despite their limited use, have spurred legal and cultural change. Focusing on jury exclusion Part III shows how ABA Model Rule 8.4(g) in particular might be applied to more effectively challenge and sanction instances of discrimination based on race and sex during voir dire. In so doing, this article reaffirms the productive role that ethics rules can play in preventing forms of misconduct that undermine confidence in the American jury and justice system.

An Unbroken Thread: African American Exclusion from Jury Service, Past and Present

Alexis Hoag

Abstract

The right to an impartial jury and the right to serve on a jury are defining aspects of the American legal system. However, this nation has yet to fully make good on these guarantees to African Americans. Black people are routinely underrepresented in jury pools and Black defendants often face juries that fail to reflect the communities in which they are prosecuted. Despite laws prohibiting racial discrimination in jury selection and legislation to improve jury representation, the under-representation of Black people on juries persists.

This article draws an unbroken thread from the history of total exclusion of Black people from juries to the contemporary under-representation of Black people in jury pools. Historically, the framers excluded Black people from citizenship, and by extension from serving on juries. Although the Reconstruction Amendments extended citizenship rights to African Americans, racially neutral, but vague juror qualifications enabled state officials to continue excluding Black people from juries well into the Twentieth Century. Today, felony disenfranchisement prevents millions of Americans from being eligible to serve on juries, including a disproportionate number of African Americans.

This article argues that policies to increase racial diversity on juries must account for the centuries’ long exclusion of Black people. Such reforms must be large scale and transformational, addressing juror eligibility standards, fair cross section jurisprudence, and policies governing juror summons. Only then can America’s promise to Black people of an impartial jury selected free from racial discrimination be recognized.

The Curtis Flowers Saga: A Failure of Prosecutorial Accountability

Allison Lantero

Abstract

The job of a prosecutor is to both “do justice” and advocate for the state. Our justice system ensures that they are able to perform this dual duty free from public criticism through the doctrines of prosecutorial discretion and immunity. These doctrines allow prosecutors to exercise great power with very little consequence. They decide whether to charge, what to charge, how many charges to bring, and at what level. They negotiate plea agreements with impunity. And when they are caught behaving badly — withholding evidence, asking improper questions, making prejudicial statements during closing argument, or even using strikes to remove all the persons of color from a jury — most face no consequences at all. In fact, they often get a chance to try again.

This can be seen most recently through the multiple trials of Curtis Flowers, a man who has been tried, retried, and retried again on the same charges by the same prosecutor six different times. Appellate courts, including the U.S. Supreme Court, have found that Doug Evans, the prosecutor in that case, has engaged in misconduct. At various points he has made improper statements during trial, withheld evidence, and most damningly, struck all or most of the black members of multiple juries in violation of the Supreme Court’s ruling in Batson v. Kentucky. And yet, though Mr. Flowers is now out on bail, his future still depends on a decision by prosecutor Doug Evans, the same man who engaged in misconduct in at least four out of the previous six trials.

This paper will analyze the current state of prosecutorial accountability, different forms of prosecutorial misconduct, the checks that currently exist, and why those checks tend to be ineffective. It will do so through the lens of the Curtis Flowers case. It will analyze how and why District Attorney Doug Evans was able to retry the case six times, even after multiple appellate court findings of prosecutorial misconduct and Batson violations. Finally, this paper will conclude with an argument for a simple, albeit partial solution: once a prosecutor is found guilty of serious misconduct in a case, he must recuse himself and his entire office from re-arguing the case. This will help to ensure a defendant’s right to a fair trial without overturning past jurisprudence or punish a prosecutor too harshly for a “technical error.” It will also give prosecutors incentive to act ethically if they want to win the case.

The Pandemic Juror

Melanie D. Wilson

Abstract

While the deadly and highly contagious COVID-19 virus rages across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and concern for the rights of the accused. Overlooked in this calculus is the importance of juror safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” There is no justice without jurors.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely personal questions. During the pandemic, courts have intensified this mistreatment of jurors by exposing them to serious health risks – sometimes to decide cases with minor charges. This exploitation of jurors is irresponsible and short-sighted. By endangering jurors, courts are creating serious due process concerns for the accused and eroding public confidence in an already beleaguered system. If jurors are forced to serve on jury duty without adequate protections, verdicts will be suspect, mistrials will prevail, and many citizens who are fearful or susceptible will fail to appear, creating juries less representative of the community.

Concerns about the virus are already resulting in some jurors defying their legal obligation and refusing to appear for service. Recent surveys show that because of COVID-19, three out of four jurors are at least somewhat nervous about attending a trial and that people of color, Democrats, and older Americans are very concerned about spreading and contracting the virus. When jurors are worried and distracted, they may rush to a verdict – any verdict – or fail to appreciate all of the evidence, resulting in wrongful convictions and erroneous acquittals. And, if even one juror tests positive during the trial, a mistrial may be declared to allow trial participants to quarantine. If we are going to require jurors to serve during this dangerous time, we must protect them to protect the criminal justice system itself.