By Michael Pressman, Research Fellow
The challenges presented by the current pandemic have seemingly affected all areas of society, and jury trials are no exception. As courts seek to resume jury trials, they confront a number of obstacles, one of which will be the focus of this article: how to avoid running afoul of the Sixth Amendment’s guarantee that a jury be selected from a representative cross-section of the community.
There are two ways in which jury trials during current times might confront this obstacle. First, as in-person jury trials resume in courthouses, there is a concern that certain segments of the population might be more likely than others—as a result of their concerns about health risks of in-person jury duty—to either not report for jury duty or to be excused. Second, to the extent that courts carry out jury trials where jurors serve remotely over videoconference, there is a concern that certain segments of the population might be excluded either due to not possessing the necessary technology or due to not having sufficient facility or comfort with the technology.
This article explores whether or not the fair-cross-section guarantee is violated in these contexts, and it analyzes the pros and cons of (1) in-person juries, (2) remote juries and (3) juries blended with both in-person and remote jurors.
One final caveat before we start. It goes without saying that the demographics vary widely from court to court. The demographics in Silicon Valley will be different from the demographics in a rural county in the Midwest. Only when summonses issue and jurors respond will we be able to assess issues regarding a fair cross-section of the community. We are currently working with one court system on designing a jury summons that gives the potential juror the choice between in person or remote service.
Part I describes, in general, the law regarding the fair-cross-section guarantee.
Part II applies the law (1) to the context of in-person jury trials during current times, and (2) to the context of remote jury trials. The article argues that the chance of there being successful fair-cross-section challenges in the current in-person context is quite low, but that the chance of successful challenges in the context of remote jury trials is greater—though even in the latter context it is not clear whether they would be successful.
As long as there is a chance that a challenge would be successful, however, it would behoove us to explore options that would minimize the chances of a successful challenge. Furthermore, even if there were no risk that exclusions would give rise to a successful challenge , we still want for there to be as few exclusions as possible and for the jury pool to be as inclusive as possible. Inclusiveness of the jury pool benefits both the judicial system and society on the whole. In light of this, what can be done? Part III addresses the pros and cons of all in-person juries, all remote juries and a blended approach of mixing both types of jurors.
I. The law regarding the fair-cross-section guarantee
In order to keep the newsletter to a reasonable length, Part I can be found here.
We now explore whether or not fair-cross-section challenges are likely to be successful in the context of (1) cases where jurors report in-person at the courthouse but where many potential jurors in particular demographics stay home because of concerns about catching the coronavirus during (or in transit to) jury duty, and (2) cases where jurors carry out jury duty over videoconference from their own home, but where certain groups are less likely to report for jury service because of the digital or technological divide.
Before exploring these questions, we provide some interesting data from a recent national opinion poll carried out for—and presented by—the National Center for State Courts (“NCSC”). See NCSC, Jury Service and Accessing Court Services Remotely in a (Post) Pandemic America: Results from a New National Public Opinion Poll , June 18, 2020, available at https://www.ncsc.org/newsroom/public-health-emergency/webinars. Aspects of this data will be relevant to the analysis below.
The NCSC survey asked the following question: “Are you more comfortable with in-person or remote jury service?” In response, 23% said “in-person,” 44% said “remote,” and 32% said “no difference.” The NCSC also broke down the data by the demographics of those who responded, and the main demographic groups that were noted were age, race, and gender (though education and ideology were also noted). From greatest to lowest likelihood of reporting in-person, the demographic groups fell into three broad categories. The group most likely to report in-person, at about 80%, was young white men (and especially those who were conservative and non-college-educated). Next, at the median likelihood of reporting in-person of 67-75%, from most to least likely, were: Hispanic men, younger white women, older and college-educated white men, older Hispanic men, and older African American men. Last, those with the lowest likelihood of reporting in person—below 67% and, for some groups, below 50%—were, from most to least likely: younger Hispanic women, younger African American women, older white women, older Hispanic women, and older African American women (below 50%).
It’s not completely clear what types of concerns those who responded to the survey had in mind when they expressed their answers to the survey’s question, but it seems likely that, while various considerations might be relevant, concerns about the virus would affect one’s comfort with in-person jury service, and possession of and facility with technology would be among the factors relevant to comfort with remote jury service.
A. Application to in-person jury service (during current times)
For in-courthouse trials during the current pandemic and going forward, many potential jurors are likely to be concerned about jury service—even if measures are taken in courthouses to reduce the amount of risk. These potential jurors are more likely to not come to the courthouse or, if they do, they might be more likely to be excused. As for whom these jurors might be, any person might fall in this category, but those who are at higher risk for severe responses to the virus (e.g., the elderly and those with underlying health conditions) are particularly likely to fall in this category.
The data from the NCSC survey are consistent with this expectation. The data showed that older individuals are considerably less likely to be comfortable with in-person jury service during the current times than are younger individuals. Additionally, racial minorities are also much less likely to be comfortable with in-person jury service during the current times than are white individuals. As we know, the African American population has been particularly hard-hit by the virus, and thus the data’s finding is consistent with the expectation that African Americans would feel less comfortable than would whites, for example, with reporting for in-person jury service during these times.
In light of the fact that older individuals and African Americans are less likely to take part in in-person jury service, the question presented is whether this could give rise to a fair-cross-section challenge that is likely to be successful. Accordingly, we apply the Duren burden-shifting framework that was described in Part I, above.
Prong 1: Are age and race “distinctive” groups in the community? Race unquestionably will satisfy this prong. Age is less likely to. Age has never been a distinctive group for the purpose of fair-cross-section challenges. See NCSC, Reestablishing Jury Pools in the COVID-19 Era , June 4, 2020, available at https://www.ncsc.org/newsroom/public-health-emergency/webinars. Characteristics of groups found to be “distinctive” have typically been things that are immutable. This is the case for race but not for age. Id.
Prong 2: Is the representation of these groups in venires from which juries are selected not fair and reasonable in relation to the number of such persons in the community? The answer to this question will be a function of how substantial the underrepresentation of these groups is, and it will then also depend on which of the tests, described in Part I, is employed by the courts. Accordingly, depending on how substantial the underrepresentation is, Prong 2 very well might be satisfied for both groups.
Prong 3: Is the underrepresentation due to systematic exclusion of the groups from the jury-selection process? As explained in Part I, systematic exclusion requires the exclusion be a result of the jury mechanism or caused by a rule or practice that a state actor controls. Here, courts would likely find this to fail the systematic-exclusion prong. The courts have no control over the virus, and it likely would be found, applying the rules described in Part I, that this would not be systematic exclusion. As stated in Part I, however, courts have taken different approaches to the topic of underrepresentation due to socioeconomic factors, so it is not inconceivable that a court could find Prong 3 to be satisfied for some groups.
Thus, the race challenge would likely fail Prong 3, and the age challenge would likely fail Prong 1 and Prong 3. Thus, both challenges would likely fail to establish the prima facie case. Even if a prima facie case were satisfied with respect to either group, however, it seems likely that the opposing party would not have difficulty satisfying its burden when the burden then shifts. The state has a compelling justification for the exclusion: The health risks are compelling. Further, the Supreme Court has given broad discretion to states in defining what will be the criteria for qualifications, exemptions, and excusal. See, e.g. , Berghuis , 559 U.S. 314.
B. Application to remote jury service
If jury service were to be held remotely, there are fair-cross-section concerns associated with the technological divide and the digital divide. Not all Americans both possess a computer and have internet access at home and even for those who have both, some either do not know how to use the technology or feel uncomfortable doing so. Generally speaking, it seems that those who do not have a computer and internet will likely be those who are in poverty, and there might then also be data showing a correlation between computer and internet possession and race. As for the second issue, it seems that those who do not know how to use the technology or who feel uncomfortable doing so are likely to be those who are older. Would a fair-cross-section challenge based on the exclusion of these groups be likely to succeed?
Prong 1: Again, age is unlikely to be found to be a “distinctive” group. Socio-economic status, too, as discussed, is unlikely to be found a “distinctive” group—though it’s possible that it could. If there is a correlation between race and computer and internet possession, then Prong 1 would be satisfied because race indeed constitutes a “distinctive” group.
Prong 2: Here, again, it depends on how large the underrepresentation is and also on which test the courts employ. It is conceivable, however, that this prong could be satisfied.
Prong 3: Here, Prong 3 is clearly satisfied, as exclusion due to the use of remote technology for jury service would be exclusion that is a result of the jury mechanism and a rule or practice that state actors control. However, this could be substantially mitigated if courts would supply low-cost videoconferencing devices to all remote jurors. This would also assure that each juror had the same quality of video and audio.
Accordingly, if there is a correlation between race and the technological or digital divide (and if the underrepresentation is substantial enough), it is quite likely that there could be a successful fair-cross-section challenge based on the underrepresentation of a racial group. As for the claim based on the underrepresentation of older individuals, this would depend on whether courts find them to be a distinctive group and it seems unlikely that courts would do so.
Burden shifting: In the event the prima facie case is established by the fair-cross-section challenger, the opposing party could perhaps satisfy its burden of showing that there is a compelling state justification for the exclusion. The justification would arguably be very similar to the justification provided in the context of in-courthouse trials explored above. It might not be quite as easy for the burden to be satisfied in this case, however, because it could perhaps be argued that there are a variety of other ways to bring about jury service without using this method that allegedly brings about underrepresentation—e.g., it could be argued that jury service could instead be carried out in person in courthouses and that social distancing mechanisms could be employed (though, as discussed in Part II.A, there are exclusions and fair-cross-section concerns associated with this strategy as well).
Ultimately, it is unclear whether a fair-cross-section challenge in the context of remote jury service would be successful or unsuccessful. A number of the sub-questions seemingly could come out in either direction—based on what the facts are, based on which tests courts employ, and based on which legal conclusions courts come to.
III. The alternatives: (1) All in person jurors, (2) all remote jurors or (3) a blending of remote and in-person jurors.
So far, it has not been concluded that a fair-cross-section challenge to either of the two options discussed above—jury service by videoconference, and jury service in person during the current pandemic—would necessarily be successful. (The chance of success in the in-person context seems quite low, but the chance of success in the videoconference context seems greater.) As long as there is a chance that a challenge would be successful, however, it would behoove us to explore options that would minimize the chances of a successful challenge. Furthermore, even if there were no risk of exclusions giving rise to a successful challenge , we still want for there to be as few exclusions as possible and for the jury pool to be as inclusive as possible. Inclusiveness of the jury pool benefits both the judicial system and society as a whole. In light of this, what can be done?
A. Juries either fully in-person or fully remote
This option avoids the very real, practical concerns for both court and counsel that are confronted by the blended jury (See Part III.B below) with some jurors being in-person and some remote.
A concern with this approach arises out of the fact that the demographic makeup of the two types of juries would likely be different. This concern about fair-cross-section challenges could be mitigated by having attorneys agree to which type of jury their trial would employ, and this agreement could involve waiving any fair-cross-section challenges. However, while sometimes opposing parties might agree on this score, there might be times where they do not agree and thus where the challenges aren’t waived—and, accordingly, where the “con” described here remains. We elaborate on this topic below in Part III.C.
B. All juries as blended juries
Under this version, jurors would be randomly assigned to jury pools regardless of what choice these jurors have made about whether to serve remotely or in person. As a result, the jurors in every venire (and on any jury panel) could include some jurors who are serving remotely and some who are serving in person.
As for how this proposed blended jury system would work, the jurors who appear in person could all appear in one tile of a videoconference screen, or, if desired, all of the in-person jurors could be given their own tiles on the videoconference screen, even though the in-person jurors are all located in the same room. Various other details would need to be worked out, but there do not appear to be any insurmountable obstacles.
This version would avoid the concerns raised above regarding all in-person or all remote juries. It should of course be noted that there will still be exclusions—as will always be the case regardless of what method is used for obtaining a venire. In particular (and in addition to any exclusions that arise as a result of what source data—e.g., voter registration data, driver’s license data, etc.—is used to determine to whom summonses are sent), there might be some individuals who are among those excluded by both the remote jury service possibility and the in-person (in times of pandemic) possibility. Despite the fact that some individuals will fall into both categories, it seems that giving individuals the choice between the two options will substantially minimize the number of excluded individuals.
Although the practical obstacles to this version might not be insurmountable, there are various concerns that one might have with this approach. Many of these concerns arise out of the way in which this approach sets up two “classes” of jurors. The concerns are as follows:
C. All options available
Courts could give attorneys and clients all of the options regarding the makeup of their trial’s jury. Depending on response rates and social distancing in courthouses many judges may be telling attorneys, “If you want an in-person jury, your trial will be approximately six months away. If you want a remote jury, we can hold the trial in three months. If you want a blended jury, the trial will begin at some point between three and six months from now.”
If the two sides agree, the agreement could then constitute a waiver of fair-cross-section challenges. The problem arises when one side disagrees or simply wants to delay since avoiding a trial of any kind is their overall goal. If this occurs, then the judge will be the one to weigh the pros and cons of an in-person jury, a remote jury, or a blended jury. Judges should require an attorney who objects to a certain type of jury to provide the court with a good faith basis for the objection. Only when we see the demographics of those responding to jury summonses will we have an idea about whether we can achieve a representative cross-section in any particular area of the country.
IV. Final Thoughts
Due to the pandemic, the pool of potential jurors is more shallow. Many jurisdictions call jurors for service based on more than one source. For example, many jurisdictions employ not only voter registration lists (or actual voter lists), but also driver’s license lists or taxpayer lists. Drawing from a master list that combines more than one source allows for a more inclusive juror pool. Efforts are being made around the country to deepen the pool. Those efforts include adding people on welfare lists as well as those who have a felony conviction, but have completed their sentence. The deeper the pool, the better the cross-section.
Michael Pressman holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D in philosophy from the University of Southern California. His scholarship bridging the intersection between philosophy and law has been published in several law reviews and journals. Before getting his Ph.D., Michael clerked for the Honorable Nicholas G. Garaufis on the United States District Court for the Eastern District of New York and the Honorable Robert E. Bacharach on the United States Court of Appeals for the Tenth Circuit.