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Tuesday, October 20, 2009

The Social Costs of Juries

Over at NPR, there's an interesting story about how the rough economy has made the jury system buckle a bit (more). It's called: Recession Hits the Jury Box.  Some excerpts and reactions after the jump.

As the recession continues across the country, an increasing number of court officials are hearing people say financial hardship will not allow them to take a seat in the jury box. No one is keeping national statistics on how hardship excuses are affecting courts. But to get a sense of the problem, the Center for Jury Studies — which provides assistance to state courts on jury trial management — conducted an informal poll of jury administrators earlier this year.  Responses varied — some locales said it wasn't a problem, others, like one county in Nevada, said they were hearing more desperation in the voices and letters of potential jurors. Paula Hannaford-Agor, director of the Center for Jury Studies, says the impact on juries depends on how hard the recession has hit a given community, how long courts require citizens to serve, and the actual jury fee.  "The national average, I think, is $22 a day, and there are still a number of states where the payment is $10 a day," Hannaford-Agor says. "It's certainly adding insult to injury with people who are feeling emotionally frazzled by the economic situation now."

... "As a trial attorney, you never want people on your jury that don't want to be there" says David S. Kestenbaum, a criminal defense lawyer. Kestenbaum says that in recent months, the issue has caused both prosecutors and defense attorneys in L.A. County to stipulate that a juror be removed when a judge has already denied their financial hardship excuse. "We've had to, because especially in serious long cases, you want people that are paying attention to the testimony and the evidence presented in court — not feeling they really need to provide for their family and would like to be somewhere else," Kestenbaum says.

I confess I am always a bit surprised that more states haven't retreated from the provision of the jury trial. What do you think explains the persistence of the jury institution outside the constitutional realms when it appears that so few people enjoy the prospect of service on it, and so few voters, ex ante, suspect they'll be desirous of a jury of their peers someday? Indeed, why wouldn't there be more constitutional fomentation to reduce jury service incidence? Though I have expressed normative concerns with juries in other contexts, this post is purely motivated by a desire for an explanatory theory. Is there, for example, a public choice account that explains the persistence of juries?


Posted by Dan Markel on October 20, 2009 at 11:39 AM in Criminal Law, Current Affairs, Dan Markel | Permalink

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Comments

I'm not very surprised that there hasn't been a retreat from jury trials.

The are very few civil juries period, and those juries are generally juries of six rather than juries of twelve.

State have no choice under prevailing constitutional law to eliminate jury trials in cases where six or more months of incarceration are possible.

There are a lot of jury trial that aren't constitutionally required in misdemeanor and petty offense cases (which also have juries of six or less, rather an juries of twelve), but those trials are short, often heard in a single day or a few hours, while the felony cases can last weeks. Further, since minor misdemeanors and petty cases involve less publicity, pose less of a burden per juror, and there are fewer pre-emptory challenges in those cases, it takes many few people per juror to fill a petite jury panel in these cases than it does in a long felony trial where challenges for cause and pre-emptory challenges significantly narrow the jury pool.

Thus, while you can reduce the number of jury trials a great deal by eliminating the right to a jury trial in minor cases, you make only a modest dent in the demand for jurors by doing so.

Increased guilty plea rates have reduced the frequency of jury trials even in cases where they are constitutionally required.

People who don't want to be jurors, and often fail to report for jury duty and try hard to get dismissed from serving, overlap heavily with people who don't vote. Judges, who are almost always well politically connected in the U.S. also have a strong interest in shifting responsibility for decisions in controversial cases (which are not always big dollar cases or serious felonies) away from them and towards juries. Since crime victims and criminal defendants (who greatly value juries) strongly overlap, there is little organized movement to limit the right to a jury trial from crime victims. In the civil context, businesses have lobbied for outright limits on jury awards rather than taking on the politically mythic jury itself.

The real surprise in my view, is not that a right to the vanishing jury trial persists, but that jurors actually seated, who heavily overlap with the most reliable group of voters, are paid so little for their time. It wouldn't cost much and would greatly reduce a sense of resentment.

The numbers are also not huge in absolute terms. Colorado has about 4.6 million people. Something on the order of 3-4 million are eligible to serve on juries. In 2006 (a year chosen because I have complete data), the total number of jury trials in Colorado, broke out as follows:

Juries of Six or Less (trials are rarely more than one or two days):
State Limited Jurisdiction Court Civil Jury Trial 17
State Misdemeanor Jury Trial 651
Number of Jurors Needed To Deliberate: 4,008

Juries of Six or Less (longer trials than misdemeanors/limited civil):
State General Jurisdiction Court Civil Jury Trial 277 (about 75% tort)
Federal District Court Civil Jury Trial 43*
Juvenile Jury Trial 35 (Parental Rights Terminations)
Number of Jurors Needed To Deliberate: 2,340

Juries of Twelve (longer on average):
State Felony Jury Trial 857 (Mostly Felonies)*
Federal District Court Criminal Jury Trial 22*
Number of Jurors Needed To Deliberate: 10,584

Total Number of Jurors Needed To Deliberate: 16,932

Odds Of Deliberating On A Jury: About once per 25 years.

Two-thirds of federal criminal jury trials last three days or less. Nationally, only 2% of federal criminal jury trials last more than four weeks.

Once alternate jurors are considered, the odds of serving on a jury drop to about once per 20 years. Quite a bit more than a quarter of the cases where one actually serves involve only a day or two of service, and the number of cases involving more than four weeks of service is tiny. Being called to jury service and the not ending up serving is more common, but still happens, on average, only once every few years and generally lasts only a half of a day to a day (only modestly more onerous than voting).

* jury trial rights almost always required by the federal constitution. Jury trials are often required in serious misdemeanor cases as well. Some states (not Colorado) have a state constitutional right to a jury in a civil case. More states have a state constitutional right to a jury in all criminal cases.

Posted by: ohwilleke | Oct 20, 2009 3:00:31 PM

One more data point on the length of federal trials in a recent year in Colorado (state trials in felonies and general jurisdiction civil cases are probably shorter on average than the federal numbers, state trials in misdemeanors and limited jurisdiction civil cases are probably much shorter on average than the federal numbers, usually one day and almost always 1-3 days):

How long are federal trials in Colorado?

Criminal
1-3 days - 24
4-9 days - 10
10-19 days - 1
20+ days - 2

Civil
1-3 days - 42
4-9 days - 31
10-19 days - 4
20+ days - 0

The odds that a juror will be called, serve and spend more than two weeks on a jury are exceedingly low.

Posted by: ohwilleke | Oct 20, 2009 3:06:32 PM

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