Black, White, and Grey: The American Jury Project and Representative Juries

Georgetown Journal of Legal Ethics, The, Summer 2005 by Campbell, Mary Catherine

I. INTRODUCTION: GREY AREA

On August 10, 2004, Robert Grey accepted the office of president of the American Bar Association ("ABA") and announced his intention to examine and reform the American jury system.1 His American Jury Initiative is a two-pronged effort to create better juries and better attitudes towards them. First, the Commission on the American Jury is charged with improving public information and attitudes. Second, the American Jury Project is charged with improving jury service-for example, drafting a set of jury standards the ABA can propose as a model at the end of the process.2 Once the draft is completed, the standards will go to the ABA's House of Delegates for consideration during the ABA Midyear Meeting, scheduled for February 2005.3

The American Jury Project ("Project") may have the more difficult task. President Grey, in his acceptance of office, announced the results of a Harris Interactive poll conducted for the ABA showing that Americans generally have a high regard for, and an eagerness to participate in, the jury system,4 despite a low turnout ratio of those Americans actually called for jury duty.5 Americans apparently support the jury system as long as support does not include service.

Although the Project's motivation seems to stem mainly from a desire to bring juries into accordance with modern ideas about how people learn and process information,6 some standards under review from the Project's formation seem less concerned with the ease of service than with creating a uniform and modern administration of the law-for example, a proposed requirement of unanimity for verdicts.7

On October 15, 2004, the Project met at the Washington and Lee University School of Law to draft the model standards.8 The resulting proposed standards proceed from a set of nineteen general principles. From each principle, the Project has elaborated specific standards covering all stages of the jury, from summons and voir dire9 to post-verdict counsel and investigation of juror misconduct.10 This Note focuses on the two standards addressing the issue of minority underrepresentation on the American jury. While there are many factors contributing to such underrepresentation, the two that the Project chose to address most comprehensively were (i) increasing the representativeness of jury pools and venire panels and (ii) enhancing the scrutiny of peremptory challenges that may be used to exclude minority jurists. If the right to be tried by a representative jury has constitutional status, the two Standards discussed below are guarantors of rights fundamental to American citizenship.

The Sixth Amendment to the U.S. Constitution guarantees a criminal defendant a "public trial, by an impartial jury of the State and district wherein the crime shall have been committed";11 the Seventh Amendment preserves the right to a jury trial for civil defendants in suits at common law.12 The effect of these Amendments is to elevate to the highest level of American rights the right of a defendant to a "fair and impartial jury of one's peers."13 When minorities are disproportionately excluded from jury service, minority defendants particularly, and all defendants to some extent, are deprived of such a jury of peers.14 The current system, therefore, may be providing defendants with a purportedly fair trial that may in reality be unfair, and juries may be deciding guilt or innocence under an authority granted only by a representativeness that does not actually exist.

II. INCREASING THE REPRESENTATIVENESS OF JURIES

There is no one factor that can be held responsible for the systematic underrepresentation of minorities on the American jury. For example, minorities may be less willing or able to serve due to a perceived alienation from the criminal justice system fostered by poverty.15 This condition will not improve unless jurors are protected from financial sanctions on account of their service and compensated fairly for it. Although many state and some federal statutes forbid employers from dismissing jurors for missed time,16 and some require that jurors be compensated at or similarly to their normal wages during their service,17 only seven states require employers to pay jury fees.18 The amount of fees paid by any organization or individual to jurors varies widely.19 The Project has articulated no principle or standard specifically dealing with these issues. Nor has the Project addressed in detail concerns about the length of jury service, which might also disproportionately deter minority service.20

However, the most fundamental obstacle to minority representation on juries occurs at the beginning of the process, with underrepresentative source lists and the selection of names from them. The Project has attempted to correct source lists that, for whatever reason, systematically underrepresent minorities and to mandate that comprehensive source lists not be diminished by biased jury pool selection.

A. PROPOSED STANDARD

Principle Ten directs courts to use "open, fair and flexible procedures to select a representative pool of prospective jurors."21 In Standards 10(A)-(E), the Project addresses the creation and use of exceptions and challenges to jury source lists. Standard 10(A) mandates that jury source lists be compiled from "two or more regularly maintained source lists of persons residing in the jurisdiction."22 It not only mandates, but defines, representativeness: a list is representative or inclusive "to the extent the percentages of cognizable group members on the source list are reasonably proportionate to the corresponding percentages in the population."23 The court is given discretion to review and correct jury source lists.24