Cornell University Law School Social Science and Law

Jury Representativeness

The American jury is designed to serve as an impartial fact finder in criminal and civil cases.  The jury is supposed to contain a representative cross section of the community, resulting in a jury of one’s peers.   Moreover, a jury that is composed of members from diverse racial backgrounds is enhanced by the various backgrounds and experiences of its members.  Although racial diversity on juries provides many benefits, racial minorities have historically been underrepresented on juries.  In fact, throughout history African-Americans have had to fight for the right to serve as members of juries. Despite several Supreme Court cases overturning laws that excluded blacks from jury service, modern juries still lack significant racial representativeness.  Many reasons have been posited for the continuing lack of jury representativeness, including insufficient methods for obtaining the list of potential juries and lower response rates to jury summonses among racial minorities.   Several states have attempted to implement changes to their jury system, however, the problem still remains.

Importance of Diversity on Juries

12 Angry Men Clip This clip taken from the 1957 film 12 Angry Men shows one member of an all-white jury openly expressing his prejudice against a minority defendant during jury deliberations.

Rodney King Jury This clip is taken from a news story in which a juror in the 1991 Rodney King police brutality case discusses her belief that the racial makeup of the jury, defendants, and victim did not influence the decision.

Racially Based Jury Nullification This is a 60 minute news clip featuring Professor Paul Butler discussing his belief that blacks should use jury nullification to free black defendants accused of non-violent “victimless crimes.”

Valerie Hans asserted in a statement for the Public Hearing on Jury Diversity before the New York Standing Committee on Judiciary and Codes, that juries reflecting diverse social, economic, political perspectives and experiences are better at incorporating community values and fact-finding.  In their book American Juries, Neil Vidmar and Valerie Hans reported:

“a diverse group is likely to hold varying perspectives on the evidence, encouraging more thorough debate over what the evidence proves. . . . The inclusion of minorities and women in the representative jury adds their life experiences and insights to the collective pool of knowledge.  Research on heterogeneous decision-making groups supports the claim that diverse juries are better fact-finders.  Minority jurors contribute their unique knowledge to the general discussion.  Furthermore, when whites anticipate participating in a diverse jury, they tend to give more careful assessment of the evidence.” (p. 74).

A substantial body of empirical research demonstrates that jurors may be influenced by the race of the defendant and race of the victim. (Deidre Golash, Race, Fairness, and Jury Selection, p. 168).  Jurors who would reach a different result based on the defendant (or victim’s) race should be disqualified; however, in practice jurors are disqualified for cause only when they are conscious of their bias, and are willing to admit it.  Therefore, selecting jurors from diverse backgrounds becomes an important method to mitigate juror bias. The resulting diverse jury includes members with opposing biases that may in effect cancel each other out.

Furthermore, juries exercise their sense of justice by interpreting the law in a way that is consistent with their sense of justice. To the extent that members of different demographic groups have different sets of standards, jurors from the defendant’s demographic group should be more likely to apply standards to which the defendant subscribes. A jury distant demographically from the defendant is more likely to apply standards different from the defendant’s.  The demographic makeup of the jury may also affect determinations of whether the defendant’s or the victim’s conduct satisfies community standards. (Golash, pp. 168-170).

Finally, juries that are not reflective of the community may be seen as illegitimate, especially if they arrive at decisions that are contrary to the community’s inclinations.  In Georgia v. McCollum, United States Supreme Court Justice Clarence Thomas wrote that an “all white jury” was often highlighted in news stories, demonstrating the fact that people take into account the race of the jury when evaluating the verdict.  Courts will not be able to convey to defendants that their conduct is unacceptable or to the community that unacceptable behavior will be appropriately punished if the jury’s verdict is not perceived to be fair. (Golash, p. 171-172).

History of American Juries

The first “jury of peers” consisted of elite members of society (other nobles, at the time of the Magna Carta) and to some extent the jury continues to overrepresent the more elite and privileged members of society. One consequence of the fact that voter registration was used to compile lists of prospective jurors was that many African-Americans were excluded from juries because they did not have the right to vote. In addition, some states used the “key man” system in which important community members such as clergy, local leaders, and bankers recommended names of potential jurors.  This method facilitated the exclusion of blacks on juries.

In 1880, in Strauder v. West Virginia,the Supreme Court held that a statute excluding blacks from jury service violated the U.S. Constitution.  Strauder, however, had little immediate effect on increasing the number of blacks on juries because blacks were not allowed to vote (and thus excluded from juror lists based on voter registration) and were unlikely to be picked for service by “key men” in the community.  In 1935, in Norris v. Alabama, the Court ruled against de facto jury discrimination, holding that officials excluding blacks from jury service in criminal prosecutions violated equal protection.  In 1965, in Swain v. Alabama,Robert Swain presented evidence that even though 26 percent of Talladega County Alabama’s population was black, in the previous ten years prior to Swain’s trial, blacks comprised only between 10 and 15 percent of jury panels and no black person had served on a petit jury since 1950.  Finding that the purpose and function of preemptory challenges does not require an examination of a prosecutor’s motives, the Swain Court established a presumption that the conduct was not discriminatory and placed the burden of proof on the defendant to rebut that presumption. Under Swain, a defendant would have to “show the prosecutor’s systematic use of peremptory challenges against Negros over a period of time.”  In 1986, in Batson v. Kentucky, the Court drastically reduced the burden of proof required to show a prosecutor’s equal protection violation in the use of peremptory challenges.  Under Batston, defendants could base their discrimination claim on their own cases rather than a history of systematic discrimination.

Problems Achieving Representative Juries

Researchers believe that problems achieving representative juries can result from:

(a) Using source lists that are not completely inclusive;
(b) Having an excessive number of reasons for disqualification, exemption, and exclusion from jury service;
(c) Experiencing differential response rates to jury summonses; and
(d) Requiring lengthy or onerous terms of service.

Source Lists

In his article, The Promise and Challenges of Jury System Technology, G.T. Munsterman noted that over half of states use multiple source lists as the source of names for potential jurors. (p. 17).  The most common combination combines registered voters and licensed drivers. (Munsterman, p. 17).  Using voter registration lists alone tends to overlook young people, racial and ethnic minorities, and the poor, all groups who are less likely to be registered to vote. (Vidmar & Hans, p.76).  One study by Ronald Randall, James A. Woods, and Robert G. Martin, Racial Representativeness of Juries: An Analysis of Source List and Administrative Effects on the Jury Pool, conducted in Lucas County, Ohio, found that more whites and fewer blacks and Hispanics are registered to vote than suggested by their relative percentage of the population.  Moreover, when the same calculations were performed using the list of licensed drivers, whites were again overrepresented and blacks and Hispanics were underrepresented.  The study concluded that moving from voter registration to licensed drivers lists for the jury source list would increase the degree of underrepresentation for blacks but would increase the degree of representation for Hispanics.

The greatest problem combining lists is the identification and elimination of duplicates.  (Munsterman, p. 17).  Two possible errors have been found: “1) a ‘false duplicate,’ where a unique individual is removed from the merged list, and 2) an ‘unrecognized duplicate’ where two names are thought to be different people but are not.” (Randall, p. 76).

Jury Summons

Researchers estimate that 20 percent to nearly two-thirds of citizens receiving jury summonses do not respond.  (Randall, p. 77). One study that investigated people receiving summonses in one hundred jurisdictions found that “African-Americans are slightly more likely not to respond to their summons.” (Randall, p.77).  The Lucas County study noted that a major reason for the high number of unanswered summonses among blacks and Hispanics is the high rate of undelivered summonses.  (Randall, p. 81).  The researchers attributed this to bad addresses and moving frequently.  A 1993 study conducted by the Capitol District Bar Association in Albany, New York, discussed by Jeff Barge in Reformers Target Jury Lists, revealed that nearly 70 percent of juror qualification questionnaires mailed in predominantly low-income and minority ZIP codes were returned as undeliverable, compared to 30 percent in wealthier and white neighborhoods.

Approaches to Achieving Representative Juries

The American Bar Association Jury Project suggests courts implement these recommendations in order to improve jury representativeness: “a limited set of juror eligibility requirements; (b) avoidance of discrimination in jury selection; (c) use of short terms of service such as one day/ one trial; (d) minimization of waiting time; (e) a suitable environment; and (f) reasonable fees to compensate jurors for their service.

For example, New York State has attempted to drastically alter its jury system.  New York has stopped using its former permanent qualified list from which to draw potential jurors, eliminated automatic exemptions from jury service, reduced the length of service, and increased its juror daily pay to $40.00 per day. In addition, New York uses five source lists: the list of registered voters; holders of drivers’ licenses or Division of Motor Vehicles issued ids; New York state income tax filers; recipients of family assistance; and recipients of unemployment insurance.   New York also allows residents to volunteer for jury service.  Furthermore, New York participates in the U.S. Post Office’s automatic address updating and automatically sends follow-up correspondence to non-responders.

Additional Resources:

Jury Pool Diversity in New York State: Public Hearing on Jury Diversity Before the Assem. Standing Comm. on Judiciary and Codes (April 30, 2009) (statement of Professor Valerie P. Hans, Cornell Law School).

Neil Vidmar & Valerie P. Hans, American juries: the Verdict (2007).

Deidre Golash, Race, Fairness, and Jury Selection, 10 Behav. Sci. & L. 155 (1992).

Strauder v. West Virginia, 100 U.S. 303 (1880).

Norris v. Alabama, 294 U.S. 587 (1935).

Swain v. Alabama, 380 U.S. 202 (1965).

Batson v. Kentucky, 476 U.S. 79 (1986).

Georgia v. McCollum, 505 U.S. 42, 52-53 n.1 (1992) (Thomas, concurring).

Ronald Randall, James A. Woods, & Robert G. Martin, Racial Representativeness of Juries: An Analysis of Source List and Administrative Effects on the Jury Pool, 29 Just. Sys. J. 71 (2008).

G.T. Munsterman, The Promise and Challenges of Jury System Technology, 17 (2003).

Jeff Barge, Reformers Target Jury Lists,  Jan. A.B.A.J. 26 (1995).

More Perfect: Object Anyway. This podcast (presented by Radiolab) focusing on the Supreme Court discusses the ins and outs of Batson v. Kentucky (and includes an interview with James Batson!).