Jury diversity has been an often-discussed problem in many legal cases for decades. Prior to the Civil Rights Movement in the 1960s, jury diversity did not exist. Juries were almost entirely composed of white Christian males. Racial minorities, women, and non-Christians were never given a jury of their peers. Instead, these groups had a jury of the majority, which directly affected their right to a fair trial. Now, over 60 years later, jury diversity has drastically increased, though it still does not reflect the demographics of the population. White individuals still are the majority in the United States but in some jurisdictions, such as Los Angeles and Houston, white individuals make up less than one-third of the city’s population. However, most cases in those jurisdictions still have juries made up of mostly white individuals. Why is that? The answer is more complicated than you might think.
Why Does Jury Diversity Matter?
All US citizens have the right to a fair trial and the right to a jury consisting of their peers. Without juror diversity, these rights are only given to the majority. Famous criminal cases have shown what a lack of diversity in a jury can lead to. A prime example is the real-life case of Walter McMillian, an African American male who was wrongfully accused and found guilty of murder. The jury that charged him with murder was made up of 11 whites and a single African American. This lack of jury diversity and the resulting injustice is highlighted in the film following McMillian’s trial and eventual exoneration called Just Mercy. More recently, research conducted in Florida, found that all-white juries convicted black defendants 81% of the time whereas white defendants were only convicted 66% of the time. This shows that a lack of diversity contributes to African American defendants getting convicted 1.25 times more than White defendants. However, juries with at least one black juror resulted in a 76% conviction rate for black defendants and a 77% conviction rate for white defendants. A diverse jury is not a luxury but is a right for minority defendants to have a fair trial among a jury of their similar race and gender peers.
Reasons for Lack of Diversity
It is obvious that jury diversity is of the utmost importance in the United States. When on trial, you are to be judged by a jury of your peers. Peers should mean a generalizable sample of people from all races, ethnicities, and religions in your jurisdiction. Diversity in a jury means diversity in viewpoints, experiences, and beliefs. Though all US citizens have this right, it rarely happens. Many times, juries are quite homogenous. Even in major cities that are racially, ethnically, and religiously diverse, juries may still lack diversity. This problem has become more prominent due to the COVID-19 health crisis facing the United States. Since COVID-19 began spreading, these minority groups have been found to be less likely to show up for jury duty due to fears of catching the virus and a higher likelihood to face hardship due to the virus. However, COVID-19 is just a single reason as to why so many civil and criminal cases lack diversity in their juries.
Failure to Enact Guidelines
The United States views diversity in the workplace as being of the utmost importance, why should courts be held to a different standard? According to guidelines enforced by the Equal Employment Opportunity Commissions (EEOC), businesses with more than 14 employers need to somewhat reflect the population in which they work. This means that a business in an area with high numbers of minorities should have a similar representation of race in the workplace. The EEOC has even implemented the 4/5ths rule where the selection rate for the minority group can be no less than 4/5ths or 80% of the majority group. The current guidelines for diversity in juries are very vague. In two cases, Strauder v. West Virginia and Batson v. Kentucky, the Supreme Court found that you cannot remove a juror based on race, but no individual is entitled to a jury with any specific makeup of race. This means that attorneys simply have to come up with a race-neutral reason to remove a juror. Yet, the courts do not seem to take into account the adverse impact some factors have on certain groups of people. For example, lack of childcare, higher levels of mental and physical health issues, and greater hardship can be found among many minority groups in major cities. This is especially prominent with COVID-19 where minority groups are far more likely to face an undue hardship due to the pandemic, such as becoming unemployed, lacking childcare, being at higher risk for infection, and financial issues. This is a problem that is very salient but also very difficult to solve.
Requirements to Be a Juror
An additional issue is the criteria needed to be on a jury. Many states require that the jurors be registered, voters. This, in and of itself, decreases the likelihood that minorities will serve on a jury. Minorities are less likely to be registered voters due to a multitude of reasons, such as lack of time, faith in the electoral system, and emphasis on voting in their community and schools. Over time, this may change but it has historically been a major reason for the lack of diversity in juries for the last 50 or more years. Additionally, felons are not allowed to be on a jury. Felons are disenfranchised, meaning that they cannot vote and in turn cannot serve as jurors. This raises an oft-discussed major societal problem. Minorities have a far higher chance of becoming a felon than white individuals. According to a recent study of the Sentencing Project, 2.5% of the US population, or 1 in 40 adults, are unable to be a juror due to a current or past felony charge. However, for African Americans, this number skyrockets to 7.4%, or 1 in 14 African American adults while non-African American individuals reflect 1.8% or 1 in 56 non-African American adults. In some states, the percentage of disenfranchised African Americans is extremely high. Kentucky, for example, has 26% of their African American population as disenfranchised, that is 1 in every four African American adults have some type of felony charge. These trends are mirrored for Hispanic Americans as well. They tend to have a far higher chance of being charged with a felony than white Americans. There are no quick fixes for these societal problems. They have slowly gotten better over the last half-century, but is that good enough? It takes emphasis and support at the individual, organizational, and government levels to find solutions to these problems and expedite any changes that need to be made.
Voir dire is an extremely important component of a trial. During voir dire, prosecuting and defense attorneys are allowed to remove certain jurors until twelve remains. Though many potential jurors can be removed during voir dire based on cause, meaning they have valid and sensible reasons to remove the juror, attorneys are also allowed peremptory challenges. These peremptory challenges have no reasoning, or at least not a spoken reason. Striking jurors for cause during voir dire can occur for a number of reasons, such as bias, employment, and racial prejudice. However, peremptory challenges are an often-criticized tactic in trials that allows attorneys to simply strike anyone they want. Peremptory challenges have been proven to have a very problematic effect on jury diversity. In many cases, whether accidentally or purposefully, minorities are removed as jurors. Attorneys may have biases and stereotypes that cause them to believe minorities may be beneficial for the other side, causing them to strike them without cause using peremptory challenges. This tactic is a major problem that has come under fire in the last decade. However, very few solutions have been found. Many people in the law industry want the complete removal of peremptory challenges while others have requested the judge to assess if adequate diversity was found in the jury, if not, then a retrial must be conducted. This problem has also led to a large number of appeals where many minorities have stated that their juries did not adequately represent a sample of their peers.
Major Economic Events
In the United States, opportunities are not evenly distributed throughout our society. Many minority groups tend to have a lower income, less education, and higher rates of mental and physical health issues. Though these problems are not solely found among minority groups, statistics show that on average minorities are worse off than the majority group. This becomes increasingly important during major economic events, such as the housing crisis of 2008 and the current COVID-19 pandemic. These major economic events affect the entire country but have a much larger impact on those who are lower-income, less educated, and have higher levels of mental and physical health issues. During times of crisis, minority groups are far more likely to state they have an undue hardship compared to the majority group. Minorities can lose childcare, employment, and even benefits during an economic decline that may make them unable to perform efficiently as a juror or cause jury duty to become more of a burden than a duty.
What Can Be Done?
Many things can be done to address this societal problem, ranging from federal and state guidelines and laws to the behaviors of individual attorneys and firms. The federal and state governments can bring an end to peremptory challenges. If not fully remove them, perhaps apply stronger guidelines for their use or have rules to support the challenges. Additionally, government entities can also enact something similar to the EEOC’s 4/5ths rule where they require all juries to have at least one minority member or possibly two depending on the jurisdiction’s demographic makeup. Firms can help educate their staff and promote more inclusive tactics in jury selection. Lawyers can reject stereotypes and find more empirically-supported and data-driven tactics to select the jury. For example, many attorneys believe that liberal women are usually the best jurors but generational changes have complicated these stereotypes making them less reliable. The best individual behavior an attorney or firm can do is to hire jury research firms, such as Jury Analyst, to better understand juries and find data-driven and validated ways to choose a jury. Jury selection should be similar to employee selection. You should want the best performing jurors, but you need to select them in a valid and fairway. We at Jury Analyst can help instill this change in the process by providing you with an in-depth look into what demographic, psychographic, beliefs, and values matter most to jurors for your case.
For more information, please watch the below video of Brian Panish interviewing Benjamin Crump. The video discusses the importance of jury diversity and the effect it can have on civil rights as well as other types of cases.