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Monday, September 21, 2015

Encouraging Jury Service

In Civil Procedure, we spend a lot of time teaching students how to determine when the Seventh Amendment provides a right to juries in civil trials, but very little time talking about how juries actually function and why they are important. In studying post-trial motions, we focus on debates about whether small amounts of circumstantial evidence are sufficient to create a fact issue and whether apparently aberrant verdicts allow the imposition of a new trial.  The result can be that law students, despite legal training, share the public's general misconception about jury competence, which in turn may make them avoid jury trials as lawyers and encourage clients to fear juries.

But whatever we do in law school, the prejudice is out there. Bad joke: the problem with juries is that people who serve on them are too stupid to get out of jury duty. It's disrespectful to the many people who understand that jury service is important to the rule of law, an important political right, and personally rewarding. It also ignores the substantial body of empirical evidence that juries mostly get it right.

Nevertheless, the nugget of truth that makes the joke work is that sinking feeling we get when we receive a jury summons, and the reality that many jurisdictions have very high no-show rates. The system would function better if summoned jurors would appear and if the pool of potential jurors better reflected a cross section of the community.  Are there measures that court systems could take to increase participation?  Absolutely. Many are identified in the ABA's Principles for Juries and Jury Trials (Principle 2). This blog entry will focus on three ways to get more people to the courthouse.

1.  Who gets summoned? The choice of sources used to create master jury lists (aka jury source lists or jury wheels) affects both the size and composition of the pool. Voter registration and drivers license lists (the two most common sources) are not reliably updated. Use of these lists results in a large (often about 20%) number of undeliverable summonses, and it leads to a pool that tends to over-exclude young, poor, and urban citizens. What might be more reliable? New York, for example, also uses addresses of state income tax filers and the recipients of unemployment insurance and family assistance benefits. Those are addresses that the recipients have a strong incentive to keep current.

2.  Can people afford to serve? Juror pay also deters many people from showing up when summoned. When I was on a jury and spent four days at the courthouse, I had to rearrange my schedule but still got paid. For those who get paid only while working, however, especially those with little extra room in the family budget, jury duty is a hardship.  Take a look at this list of jury fees -- there's not a state that pays enough to compensate even a minimum wage worker for a lost day of work. This, too, is apt to skew the composition of empaneled juries.

3. Can we allay anxieties? The first two suggestions are politically difficult (admitting that something as simple as choosing an address list implicates political and social policies) and expensive (increasing juror pay to income replacement would be extraordinarily costly). But some people avoid jury service because they don't know how to drive downtown and park, don't know what to expect, and fear a long, boring day in an uncomfortable chair. That barrier to service can be addressed with a combination of internet communication and actual amenities. Not free, but very doable.  Watch this excellent YouTube video, Jury Service 101, from the Mecklenburg County, NC courts. In addition to a street level view of where to park and where to report, it notes that jurors have access to a comfy kitchen area, business center, fresh air balcony, game room, movies (and popcorn!), and free onsite child care. This well produced video could be a model for court systems around the country.

As an academic, I'm going to rethink how I teach my students about the role of juries and the judge/jury relationships. As a citizen, I'm going to advocate more juror-friendly policies.  Join me?


Posted by Beth Thornburg on September 21, 2015 at 09:00 AM in Civil Procedure, Judicial Process, Teaching Law | Permalink


Thanks. I ask since voting rolls often are important in being called to jury service & that -- not being taxed -- was flagged in the past as one reason why racial discrimination in voting was an issue. Since if you weren't on the voting rolls in some areas, you wouldn't be called to service. How in works ea

Posted by: Joe | Sep 22, 2015 12:48:34 PM

On average every two years or so. I have moved around a bunch (7 apartments in 12 years) but so do a lot of young-ish people in NYC.

Posted by: Brad | Sep 22, 2015 12:22:39 PM

If he wishes to say, did Brad vote in that span?

Posted by: Joe | Sep 21, 2015 6:39:03 PM

I lived in NYC and filed taxes here for the last 12 years and have never so much as received a jury notice. Something isn't working.

Posted by: Brad | Sep 21, 2015 5:53:33 PM

I refused to serve on a Texas jury because I couldn't in good conscience support the Texas Constitution, which still insults atheists, agnostics and humanists in its clause that requires all who serve as lawyers, jurors and judges to "acknowledge the existence of a Supreme Being." This requirement has been nullified in Federal Court, but who wants to serve a state that continues to insult on the basis of conscience or belief?

Added to that insult is the insult of "So help me God" and of oaths in general, which are fundamentally religious in nature. And I wouldn't do anything to humor a state that, if I were on trial, would not allow me a judge, lawyer or jurors who had not already confirmed their belief in superstition?

Posted by: Jimbino | Sep 21, 2015 1:41:16 PM

Here's a link to Judge Bennett's article: http://www.law.nyu.edu/sites/default/files/upload_documents/Reinvigorating-and-Enhancing-Jury-Trials.pdf

Posted by: Beth Thornburg | Sep 21, 2015 11:51:58 AM

This is useful & we should be encouraging jury service.

Cost is a major issue. For instance, to take a matter that can easily be addressed, travel costs can be a problem. This is particularly the case, e.g., if you are called for service in the lower Manhattan (NY) court house & live outside the city. The use of MetroNorth could cost a person over $20 a day; usage of a bus to the train, five hours of travel time.

Even if you get this money back, this potentially can result in over $100 of out of pocket cost. Why not simply provide a voucher/pass upfront? I put aside for some, including the young who are temp workers & might at best get a few days pay from their employer, jury service is a significant financial burden. For those who get paid by their employer, it can actually be a nice break. For others, not so much.

I don't think we should encourage only certain people to serve. So, one way to address the second part is to upfront inform people they have a duty to serve & figure out a way to work around their schedule. For instance, those in college can serve during a break. Those who temp & have some money or time can choose their spot conveniently. I am allowed to postpone the last time but if it might be best to encourage people to schedule things pro-actively like this.

Posted by: Joe | Sep 21, 2015 11:35:36 AM

Judge Mark Bennett has an article out with useful suggestions about using jurors' time sensibly.

Posted by: More | Sep 21, 2015 11:17:40 AM

Excellent points. Andrew Ferguson (@JuryDutyMatters) has done a lot of writing on this topic, both in the popular press and in a book, "Why Jury Duty Matters" but I haven't seen anyone else pick up on it.

Posted by: JBellin | Sep 21, 2015 9:51:55 AM

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