By Michael Pressman, Research Fellow
This month, we sent a survey to our Judicial Advisors that contained a variety of questions about what they have recently been observing in their courtrooms regarding juror demographics. In June, the NCSC (National Center for State Courts) asked 1000 people whether they would prefer serving as a juror (1) in-person, (2) remotely or (3) had no preference either way. We reported on this survey in our July newsletter found here.
The responses to the NCSC poll showed some clear differences in demographics for those likely to report for an in-person jury trial. The survey found that gender (fewer females), age (younger), and race (fewer minorities) were the most relevant variables. We wanted to get a sense of what was happening in the courts that have started jury trials with regard to these demographics. The NCSC survey analysis can be found here.
We received 83 responses, and we extend our sincere thanks to everyone who took the time to respond. The full survey results can be found on our website by clicking here, but this article provides a selection of the notable results.
Before providing the selection of the notable results, however, we first mention the main takeaways:
· The main takeaway is that 79.5% of those responding have not started in-person trials. As a result, the findings as to what has been observed by those who have started trials are drawn from a considerably smaller sample than the total number of those responding. As a result, we plan to conduct an additional survey with similar questions further down the road.
· 44.4% of those who resumed trials have noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic), and the main demographic difference reported is that potential jurors are now younger than before the pandemic. It is encouraging that 55.6% did not notice any change in jury demographics.
· All who have resumed trials have noted an increase in requests by potential jurors to be excused for hardships.
· Almost all who have resumed trials have increased the number of jury summonses being sent.
The following is a selection of all of the notable results:
1. Have you started in-person jury trials?
2. If you answered “No”, when do you expect in-person jury trials to begin in your court?
Not Yet Determined: 58.5%
3. If you have started in-person jury trials, have you noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic began)?
4. If you have noticed a difference in the demographics of gender, age or race please check all that apply. If you do not check a box in a demographic category of age, gender or race that will be recorded as the demographic remaining the same as before the pandemic. (Please check all that apply)
Older than before the pandemic: 0/18
Younger than before the pandemic: 8/18
More minorities than before the pandemic: 2/18
Fewer minorities than before the pandemic: 4/18
More women than before the pandemic: 3/18
Fewer women than before the pandemic: 0/18
5. Have you noted an increase in requests to be excused for hardships by potential jurors?
If yes, please estimate the percentage increase in those requests.
Most responses ranged between 2% and 52%.
Please estimate the percentage of those requests that you granted.
Most responses ranged between 60% and 100%.
6. Has the standard you have been using for excusing jurors been more forgiving, less forgiving, or the same as before the pandemic began?
More forgiving: 93.1%
Less forgiving: 0%
7. If a potential juror falls into a high-risk category due to age (65+), being a member of a minority community or caring for a high-risk individual do you:
Automatically exempt that individual with no inquiry: 51.7%
I make my usual inquiry about service and then decide: 48.3%
8. If you have increased the number of jury summonses being issued as a result of the pandemic, please estimate the percentage increase:
Most responses ranged between 10% and 30%, but there were a number of responses that departed significantly from this range.
9. Additional comments: (For example, if your demographics are the same as before the pandemic but you are excusing more people in the high-risk categories, we would like your thoughts on ways to achieve a true cross-section of the community.)
[The following is a selection of some of the responses we received to this question.]
“Use of video-based voir dire tends to increase participation, and increase the juror’s comfort level with coming to court.”
“[Our] Court has added a check off box in the jury summonses for persons over 65 with concerns about Covid. If the box is checked, the person will not be called to report for jury duty. This will skew juror demographics in favor of younger jurors, a concern of both sides of the bar.”
“Biggest issue here is not juror availability but lack of many trials going forward. pleas in crim cases are more favorable, due to prosecutor discretion.”
“Due to increasing summons to populations more likely to seek hardship requests, we have not seen a significant change in our actual reporting jury pools.”
“We have had more juror response in that we have had more jurors planning on appearing than we needed. I have presided over 3 jury trials since June 8th (2 civil and 1 criminal) and in all three cases we did not have any issues having a cross-section of the community on the jury. I start another civil (patent) trial next week.”
“The start up of in-person is still dependent on the orders of our State Supreme Court and the directives issued by our local Health District. We are attempting to pilot zoom jury trials from start of impaneling to verdict.”
“This is difficult to respond to. There are definitely more hardship requests. But part of our reopening protocol involves our court prescreening for hardship requests and dealing with a large percentage of them before they even reach the courthouse. So for the trial judge, we are not seeing as many as we were pre-Covid because they have been dealt with before the individuals ever come to the courthouse.”
“The demographic concern, to be fair, should also look at self-exclusion of older people who tend to be much more conservative. I have actually seen this in a recent situation. If anything, COVID has tilted the jury pool in favor of defendants in criminal cases, and plaintiffs in civil cases. But the likely scenario is a wash. Fewer lower-end demographics, but ALSO fewer upper-end demographics (older, wealthy people).”
“I just concluded a jury trial. No one asked to be excused because of Covid. They enjoyed their service and appreciated the steps we took to make them safe. Jury trials are essential. We must and can continue to have jury trials. The results I found in my Division are consistent with courts in other parts of my District.”
“We are excusing more in high risk category particularly age, but previously older jurors were overrepresented.”
“We have started some criminal trials on a limited basis. My first jury trial will be September 9. Given our criminal backlog, we will not start civil jury trials until perhaps early 2021; more likely 2nd quarter 2021.”
Thank you, again, to all who responded. To see the full results, click here. We plan to send a similar survey out once it seems that more courts have begun jury trials. Please stay tuned.