The representative jury requirement: Jury representativeness and cross sectional participation from the beginning to the end of the jury selection process

The paper specifically addresses the many ways in which the facially neutral procedures actually fail to secure representative jury pools. Although the Sixth Amendment's fair cross‐section requirement forbids systematic discrimination in the creation of the jury venire and panel, it does not guarantee that the criminal jury will in fact reflect an accurate cross‐section of the community. As a result, not only does the Court fail to focus on nonlegally recognized screening mechanisms and factors such as exemptions, excuses, failure to followup jurors, etc., may affect jury representativeness, but also the Court never examined cross‐sectional representation at the entirety of the jury selection processes, except jury panels and final juries.

The first section of this paper presents a brief overview of the constitutional law impacting impartial juries, especially addressing the fair cross‐section doctrine that is the focus of contemporary jury selection procedures. In providing empirical and systematic comparisons of jury participation at each of the distinct jury selection stages encompassing a general population, jury wheels, jury qualified pools, jury eligibles, jury panels, and actual trial jurors, the second section of this paper makes critical analyses of the cumulative effects of screening mechanisms in jury selection. The paper assesses jury compositions by looking at demographic, socio‐economic, and ideological profiles of prospective jurors, illustrating that those jury profiles do not necessarily reflect cross‐sectional representation of the community population at comprehensive stages of the jury selection process. The analytical findings show that unless some deep seated reforms are made to eliminate cumulative effects of selection biases and correct representative imbalances of jury wheels, qualified pools, jury panels, and trial juries, historically underrepresented groups such as racial minorities, the poor, and part‐time employees will continue to be underrepresented on juries, negating the public's shared responsibility for the administration of justice in one of America's most heralded democratic institutions.     

The Peremptory Challenge Accused of Race or Gender Discrimination? Some Data from One County

Some view the peremptory challenge as crucial to a fair jury selection process, whereas for others, it is a tool for invidious race or gender discrimination. Nevertheless, debates utilize little empirical data regarding uses of this challenge. Data are reported from observation of a small number of criminal trials in one, largely biracial southeastern county. In the aggregate, there was no association between race and selection for a jury, and only a modest relationship for gender and selection. However, the null finding for race masks a pattern of strikes by each party: When dismissed, Whites were likely to be excused by the defense, and African Americans by the state. A trial-by-trial analysis showed that when disparities between venire and jury composition existed, the direction usually pointed to overrepresentation of African Americans and women on juries. Despite limited generalizability, the data suggest the need for a more informed debate about the peremptory challenge's use in modern criminal trials.     

Changing views of jury power

This article highlights the major events and empirical research in the continuing debate over the power and competence of the jury in civil and criminal trials. The concept ofjury nullification, the power of the jury to return a verdict based upon their moral conscience despite the evidence and the law, is used as a convenient filter to discuss the legal and behavioral assumptions about jury power and performance. The legal, historical, and even behavioral contexts reflect a bipolar theme in the level of trust Americans have exhibited towards the jury system. One pole reflects the notion that juries lack predictability and rationality in their verdicts and are moved by emotional concerns. Antipodally, juries have been thought to reflect an historical competence at applying common sense notions of equity and rationality to conflicted and ambiguous cases. This article traces the history of these two views of jury power and competence. A critical review of the empirical research that may inform the debate about the jury's competence in both criminal and civil arenas is provided.     

“... By a jury of his peers” — The issue of multi-racial juries in a poly-ethnic society

Conclusion Thus the conclusion should be to introduce a wider measure of participation by ethnic minorities in the jury service, in that every jury, regardless of the defendant's race or creed, ought to be composed of an appropriate mixture of racial groups according to the distribution of those quotas in the sampling area. The execution of the selection procedure should be left in the hands of the administration and not given to the individual judge in order to avoid any conceivable misuse of judicial powers and to keep the legal system free from yet another issue which might unnecessarily kindle racially founded suspicion, distrust or even hatred with those members of society whose protection a multi-racial jury is designed to serve in the first place.I would like to thankMr. Geoffrey Mercer, Barrister, Exeter, for reading and commenting upon the first draft of the article, and for checking the English.     

Law teaching at colleges of further education

Scholars have long agreed upon the interrelated rationales for a diverse law faculty, which include the recognition of the value of multi-perspective and multicultural education and scholarship, the promotion of non-discrimination and prevention of discrimination in the legal academy and legal community at large, and the benefits of minority mentors and role models for minority students. This article will make use of the United States Supreme Court’s 2003 landmark decision in Grutter v Bollinger to illuminate how its diversity rationale in the admission of law students should extend to the hiring of minority law faculty members. Further, it will argue that “racial minorities” should include not only African Americans, Hispanics, and Native Americans, but also Asian Americans. Finally, law schools should include foreign professors in their affirmative action hiring efforts in this era of globalisation. Although this article focuses more upon faculty hiring than student admission, to the extent that it appropriates the Grutter rationale to discuss affirmative action hiring, affirmative action admission will also be a significant part of the discussion. After all, a diverse law faculty and a diverse student body are inseparable components of a supportive and friendly law school environment.     

Doing Justice: Perceptions of Gender Neutrality in the Jury Selection Process

There is a paucity of research on juries in general including the jury selection process. Very little of it examines the effect of gender. This study surveyed 138 potential jurors to determine whether jurors believed they were excluded from jury service due to gender. Additionally the study assessed whether gender affected attitudes about women serving on juries and whether perceptions about women and jury service were associated with general views about the fairness of the justice system. Findings suggest that gender had little effect on jury service or views about women serving on juries, but views about women and their role in jury service was associated with perceptions of general fairness in the system, regardless of the respondent’s gender. These findings point to the need for a more complex understanding of gender when examining the jury selection process.     

Criminal Procedure Code of the Republic of Kazakhstan,No. 231-V of July 4, 2014 (with amendments and additions as of November 24, 2015)

This issue contains translations of the remaining Articles 484–674 of the Criminal Procedure Code of the Republic of Kazakhstan, which define cassational review proceedings, reopening of cases in light of newly discovered circumstances, application of compulsory medical treatment, criminal misdemeanor proceedings, proceedings against minors and persons with immunity, international legal proceedings including extradition, procedural agreement with the defendant, jury trials, and pre-sentence confiscation of property of the defendant.     

Too Many Black Men: The Sentencing Judge's Dilemma

Legal reform sometimes has unanticipated, even ironic, results. A good example is federal legislation adopted in the 1980s that was supposed to enhance equity in sentencing. Congress, like many state legislatures in this period, reduced judicial control over sentencing by adopting presumptive sentencing guidelines for all serious criminal offenses and mandatory sentences for some specific crimes. Reformers did succeed in reducing judicial discretion in the sentencing process, but racial disparities have gotten much worse. Unprecedented numbers of minorities, particularly black men, are going to jail for long terms. The situation leaves trial judges in a difficult position. They are legally bound to implement a sentencing regime that many of them believe is racially discriminatory. Herbert Jacob's work on criminal trial courts provides a framework for investigating this problem. As Jacob's organizational approach predicts, judges were initially more troubled by the diminution of their powers than by the emerging pattern of increased minority incarceration. Nevertheless, some judges have criticized the racial implications of the sentencing law, protesting in various, resourceful ways. Judicial resistance to a law on moral grounds, though rare, is significant because it represents a break in the ranks of officialdom that enhances the moral credibility of critics of the current law.     

Crime,politics, and minority populations: Use of official statistics in the united states and Japan

Although the governments of the United States and Japan differ markedly in racial ideology, official crime statistics in both nations reflect political arrangements which marginalize minority populations. In both nations, official crime statistics reveal more about the attempts of majority populations to label minority populations as a criminal class than about variations in criminal behavior across racial populations. While there is no racially pure Black population in the United States, there is a “black” category within official statistics, and the statistics are used to justify crime control policies which have a disparate impact on the diverse peoples who are socially‐perceived as Black. While there are undeniably non‐Japanese populations in Japan, there are no racial categories for them in official statistics which define them out of existence; except where crime statistics are concerned, so that the police can monitor the criminality of “foreigners.” In both societies, official categorization of race in crime statistics implies that crime is a minority problem; government statistics reinforce official ideology that crimes by “foreigners” and “black violence” are the real threats to civil society.     

The role of victim characteristics in the disposition of murder cases

Using data from prosecutors' files in a sample of 33 U.S. counties, we examine how victims' conduct and victims' demographic characteristics affect the disposition of murder cases at various stages of the criminal justice process. We find that victims' age and past conduct do not significantly influence legal outcomes in murder cases, but their race, gender, and conduct at the time of the incident do so. Although these effects vary across the criminal justice decision-making stages considered, they generally are consistent with the claim that killings of disreputable or stigmatized victims tend to be treated more leniently. We also find some evidence that the effects of victim characteristics are stronger in jury proceedings than in bench proceedings, and that the influence of a victim's race on the disposition of murder cases is conditioned by the racial composition of the county in which the case is processed.     

Racial and ethnic perceptions of injustice: Testing the core hypotheses of comparative conflict theory

Comparative conflict theory is a theoretical statement proposed by Hagan, Shedd, and Payne (2005) to explain racial and ethnic variation in perceptions of injustice. Their theory asserted that White respondents perceive considerably less injustice than both African Americans and Hispanics (the racial-ethnic divide hypothesis) and that African Americans perceive less injustice than Hispanics (the racial gradient hypothesis). They also proposed that prior criminal justice experiences serve as a “tipping point” for Hispanics in that Hispanics with prior negative criminal justice contacts will perceive more injustice than African Americans with similar prior negative experiences. This study tested these three hypotheses, finding support for the racial-ethnic divide and racial-gradient hypotheses, but not the differential sensitivity hypothesis. In addition, this study explored the racial and ethnic identity of Hispanics (i.e., “White Hispanic” and “Black Hispanic”) and found that Hispanics, who were younger, less educated, and perceived some forms of injustice were more likely to identify themselves as being both Hispanic and Black.     

A JURY OF PEERS

The frequent inquiries received at our Chicago offices about juvenile juries prompted us to allot some space to it here. To date the National Council has taken no position on their use. A study done in 1965 by the National Council on Crime and Delinquency of eighteen teen-age juries showed many of the claims made on behalf of the teen-age jury—for example, that it gives a teen-ager “a fair trial by a jury of his peers”—are dubious. “The juvenile jury lacks legal foundation and signifies a de facto surrender of judicial authority and responsibility. No substantial evidence was found to support the assertion that the teen-age jury reduces juvenile delinquency and youth crime. The procedure perpetuates the archaic and unsound practice of jury sentencing long abandoned, even for criminal cases, in all but a few states.”     

The basis of citizen's perceptions of the criminal jury

Two studies examined citizens' perceptions of the criminal jury and their evaluations of 6- or 12-person juries operating under unanimous or majority decision rules. Study 1 was a telephone survey of 130 adult citizens in which respondents evaluated alternative jury structures in the abstract. In Study 2, students were asked to evaluate jury structures for a hypothetical trial in which they were either the defendant or the victim in a crime with a mild or serious outcome. In both studies, jury size and decision rule were related to ratings of procedural cost, and the severity of the crime moderated procedural evaluations. In Study 1, juries were preferred to judges and the 12-person unanimous jury was preferred over other jury structures when the crime involved was serious. In Study 2, there were no direct effects due to variations in jury structure, but subjects appeared to trade off procedural cost and thoroughness of deliberation as a function of the seriousness of the crime. Procedural fairness emerged as the strongest independent predictor of desirability for jury procedures, and fairness was related to representativeness and accuracy. The role manipulation did not influence subjects' responses. In both studies, respondents were very supportive of the jury as an institution, despite a perception that erroneous jury verdicts do occur.     

Lay Juries, Professional Arbitrators, and the Arbitrator Selection Hypothesis

Do civil juries follow the broad dictates of the law? For example,do those plaintiffs who suffer greater damages receive greaterawards? Are juries consistent? Do juries empty deep pockets?In many states automobile accidents are first tried by a professionalarbitrator and then by a jury if one of the litigants is dissatisfiedwith the outcome. How do the decisions made by professionalarbitrators compare to the decisions made by juries? This articleseeks to answer these questions by first developing a modelof arbitrator selection and then undertaking an empirical studyof 380 automobile accident cases that went through both an arbitrationand a jury trial.     

A Meta-Analysis of the Effects of Jury Size

In a series of opinions in the 1970s, the U.S. Supreme Court concluded that juries smaller than 12 persons would be constitutional if they performed no differently than traditional 12-person juries. In a meta-analysis, we examined the effects of jury size on the criteria the court specified as the basis for making such comparisons. A search for all relevant empirical studies identified 17 that examined differences between 6- and 12-member juries. The total sample for the 17 studies was 2,061 juries involving some 15,000 individual jurors. Among other findings, it appears that larger juries are more likely than smaller juries to contain members of minority groups, deliberate longer, hang more often, and possibly recall trial testimony more accurately.     

Fair and impartial railroad: The jury,the media,and political trials

The clash between social movements and political authority is often played out in the court rooms in criminal cases which are loosely described as “political trials.” While prosecutors, judges, and defendants rarely agree as to the “political” nature of a particular case, all parties usually regard the jury as the pivotal factor. The jury, of course, is enshrined in Anglo-American legal theory as the final check against suppression of liberty by the state. Plea bargaining is out of the question when the very legitimacy of the state is challenged and when dissident defendants are determined to use the trial process as a means of political expression. The crucial question is whether the jury has in fact lived up to its Constitutional role.The article attempts to answer this question at two levels. First, the history of political trials in the United States is reviewed with the general finding that radicals have faced juries which were both grossly unrepresentative of the general population and typically hostile to the ideas, life styles, and social origins of the defendants. Second, the article considers in some detail the impact of media coverage on potential jurors on one particular recent political case, the 1977–1978 trial of accused “guerrilla-bombers” Richard Picariello and Eduard Guilion in the Federal District Court of Southern Maine. The survey opinion data presented for this case strongly indicate that any chance of a fair trial for the defendants was compromised by effects of sustained hostile media coverage before the onset of the trial. Finally, the article considers available remedies in the form of either legislative reforms designed to ensure representative juries, or voir dire procedures aimed at eliminating biased jurors. A review of these remedies offers little hope that future political trials will be substantially fairer than in the past. Moreover, the direction of current criminal justice reforms, as in the proposed S-1722 Federal Criminal Code, promise to criminalize further important forms of political expression.The conclusion is not that jury trials should be avoided or minimized, since judges are apt to be even more predisposed against dissidents. Rather, the point is that the social and ideological biases which intrude especially in political trials are rooted in the political economy of capitalism which underlies the legal system itself. The jury system remains the best available defense against legal repression, but “justice” must ultimately await the outcome of continued social struggle, rather than further refinements of legal process.     

Jury nullification

The present study was conducted to determine the effects of nullification information to the jury from two sources, judge's instructions and lawyers' arguments, on juries' verdicts and decision making in three criminal cases. In addition, the research tested the impact of challenges to nullification information on trial outcomes. The results, gathered from 144 six-person juries, indicated that when juries are in receipt of nullification information from the judge or defense attorney they are more likely to acquit a sympathetic defendant and judge a dangerous defendant more harshly than when such information is not present or when challenges are made to nllification arguments. Analysis of the juries' decision-making processes suggested that nullification information may alter the way in which juries perceive and use the trial evidence. In those trials in which a nullification defense was successful, juries used the outcome of the case, as well as the intent of the defendant, to evaluate the worth and weight of the evidence. Pronullification conditions devalued the currency of the evidence and permitted juries to utilize nonevidentiary factors in deciding the cases used in this study.This research was supported by a grant from The University of Toledo Graduate School.     

Mapping the Racial Bias of the White Male Capital Juror: Jury Composition and the “Empathic Divide”

This article examines the nature of racial bias in the death sentencing process. After reviewing the various general explanations for the continued significance of race in capital cases, we report the results of an empirical study in which some aspects of racially biased death sentencing are examined in depth. Specifically, in a simulated capital penalty‐phase trial setting where participants were assigned to small group “juries” and given an opportunity to deliberate, white male jurors were significantly more likely to sentence black defendants to death than were women and nonwhite jurors. This racialized pattern was explained in part by the differential evaluation of the case facts and the perceptions of the defendant that were made by the white male jurors. We discuss these findings in light of social psychological theories of contemporary racism, and we conclude that the demonstrated bias in capital jury settings should be understood as an interaction of several factors, including individual juror characteristics, group‐level demographic composition, and group deliberation processes.     

Passive Observers or Active Participants? Jurors in Civil and Criminal Trials

What was the role played by jurors in civil and criminal trials from the late eighteenth to the late nineteenth century? This article establishes that during this period, juries in Ireland played a relatively active role. It examines individual reports of civil and criminal trials and considers the nature of juror participation during this period, establishing that jurors frequently questioned witnesses, berated counsel, interrupted judges, demanded better treatment and added their own observations to the proceedings. This article compares the nature and level of interaction from different categories of jury – civil and criminal, common and special. It asks why Irish jurors continued to be active participants until late in the nineteenth century, and how the bench and bar received their input. It also suggests that English jurors may have played a more active role during this period than previously thought. Finally, the article considers some possible reasons for the silencing of Irish jurors by the late nineteenth century.     

The Politics of Racial Disparity Reform: Racial Inequality and Criminal Justice Policymaking in the States

Racial inequalities in criminal justice are pressing problems for policymakers. Prior literature suggests elected officials promulgate punitive, racially disparate criminal justice policies due to partisanship and racial fears, but scholarship has yet to explain how and why elected officials address racial problems in criminal processing. This article introduces the framework of racial disparity reform policymaking. A racial disparity reform is a policy that seeks to reduce distinctions in criminal justice institutions’ treatment of racial groups. Elected officials pursue these policies due to ideological beliefs in civil rights ideals and political interests in appearing to solve social problems. Using an original database of policy enactments, this article first presents the distribution and types of reform measures adopted by elected officials in all 50 states between 1998 and 2011. It then examines social and political explanations for when state legislatures and executives adopt racial disparity reforms. Policy enactment is predicted by worsening problems of racial disproportion in criminal processing, Democratic control of elected branches, and the absence of judicial efforts to improve racial fairness within a state’s criminal justice system. Similar dynamics encourage the development of different measures types within policies. Such ideological and problem-solving explanations for racial disparity reform show a potential for elected officials to forge more racially just criminal justice practices.