Jury Representiveness Redux – A Lament for a Good Measure

Having proposed or otherwise advocated for various performance measures that have not seen the light of a court day, I should be accustomed to the low use of measures that I happen to believe have high value. But, alas, I continue to puzzle over why one such measure in particular – jury representativeness -- is not used more by courts.

Jury representativeness – as I defined it in a two-part Made2Measure posting on April 12 and April 22 last year – is the comparative parity (i.e., the absence of disparity) -- expressed as a percentage -- between the representation of minority groups in the population and the representation of the same groups in the final juror pool or venire. How well juries mirror the community from which they are drawn is widely considered a reflection of the equality, fairness and integrity of our justice system.

Arguably, identifying a combination of demographic characteristics as the source referent -- including gender, age, income level, and education -- may be better than looking at race and national origin alone to determine jury representativeness. However, because race and national origin are the most salient demographic characteristics in law, policy debate, and jury utilization and management, disparities in race and national origin may be seen as reflective of disparities in other demographic categories. That is, if the jury pool fairly represents the community in terms of racial and national origin, most other demographic characteristics are likely to be represented fairly as well.

Filling the Jury Box

Nationally, only about half of the people summoned actually show up at the courthouse. Courts across the country are going to extraordinary lengths to fill their jury boxes -- to increase their juror yield (the proportion of people who show up when summoned) and their utilization of the jurors once they show up at the courthouse. The National Center for State Courts’ CourTools two-part output measure, effective use of jurors, focuses on the efficiency of processes of jury management and utilization.

But what outcomes that might reflect equality, fairness and integrity of our justice system do we get with our increased efficiency? Who is showing up for jury duty? Are they representative of the communities from which they are drawn?

Everybody seems to want to know, but few are taking this measure the way it ought to be taken.

A Quick Quiz

You are a jury commissioner, a court administrator, a court clerk, or a presiding judge responsible for jury management and utilization in your jurisdiction. Although your qualification and summoning process is designed to identify a representative sample, something tells you that those who actually appear in your jury pool do not necessarily reflect the race and national origins of the community. You feel the pressure of increasing attention being paid locally and nationally to the representativeness of the race and national origin of those who show up for jury duty. Which one of the following actions do you take?

A. You do nothing.

B. You grant access to your juror pools to a local academic who identifies the race and national origin of potential jurors in the pool by sight and computes the disparity of race and national origin between the juror pools and the eligible population of jurors in the jurisdiction.

C. You rely on individual judges to dismiss a panel of jurors if they believe that they do not look like general population in terms of race and national origin.

D. As part of your key management processes, you regularly monitor, analyze and manage jury representativeness, a measure of parity in race and national origin between jurors who are qualified and available to serve, on the one hand, and that of the eligible population of jurors in your the jurisdiction, on the other hand.

And the Answer Is …

“D” is, of course, the preferred answer. But “A” is definitely the most likely answer given.

Even though jury representativeness is not included as part of Measure 8 of the CourTools, and perhaps as a consequence, not used routinely as a core performance measure by courts, at least a few courts have been willing to consider it as a measure of fairness and equality.

For example, the measure “Effective Use of Jurors,” designed by the Maricopa County Superior Court (Phoenix, Arizona) is an index composed of four elements: (1) jury representativeness; (2) juror satisfaction -- the percent of jurors giving favorable rating's to the court's accessibility, convenience and treatment of them; (3) juror yield – the number of citizens called for jury duty who are qualified and report to serve, expressed as percentage of the total number of prospective jurors available; and (4) juror utilization – the rate at which prospective jurors are used at least once in trial or voir dire.

The composite measure serves as a performance indicator of the Court’s fairness and equality (by the element of juror representativeness), the satisfaction of an important category of the Court’s customers and stakeholders (juror satisfaction), as well as an indicator of the effectiveness and efficiency of the Court’s jury management and utilization (juror yield and utilization). Only the last two elements of this measure – juror yield and juror utilization – are prescribed by the CourTools Measure 8, effective use of jurors. The court’s design team agreed that the enhancement of this measure by the addition of the first two elements, especially juror representativeness, elevates the measure to that of a “core” mission measure in a balanced scorecard of measures.

Strange But True

As strange as it may seem, the answers “B” and “C” in our Quiz are not hypothetical but based on real occurrences, as reported in the June 29 and July 20 editions of National Center’s Jur-E Bulletin.

The story line for “B” comes from a survey that was conducted from November 2006 until February 2007 by two researchers who studied more than 12,000 prospective jurors in New York City by sight alone. They identified people based on "physical characteristics like skin color rather than by asking them." The story was picked up by the New York Times. Some concerns were raised in the story by these research methods since physical characteristics are often not an appropriate measure of race and ethnicity.

Well yeah! Skin color? Looks can be deceiving, or worse. But wait, there’s more.

With regard to “C,” the other strange answer, it seems that D.C. Superior Court Judge Neal E. Kravitz had never seen a jury pool quite like the one that walked into his courtroom for the trial of Donnie Ray Horne earlier this year. At the request of the defense lawyer and over prosecutors' objections, Kravitz sent back all 70 prospective jurors -- 61 white, eight black and one Asian -- and called for a new group. He claims to have "never had a panel in a criminal case that looked like this," according to the Washington Post which picked up the story on July 15, 2007.

The Challenge

So here’s the puzzle and the challenge. How do we respond to ever increasing demands for representative juries without resorting to questionable and unsustainable research techniques and innovations by judges? How do we convince jury commissioners, court managers, clerks and judges that direct measurement of jury representativeness on a regular and continuous basis is not only possible, but feasible?

As noted by the Jur-E Bulletin, the back stories for the Quiz answers “B” and “C,” remind us that race and national origin data can be a valuable tool not only for answering criticisms from counsel and the public at large about specific cases but for addressing larger questions about equality, fairness and integrity of our justice system. Courts have the ability of which the New York City researchers and D.C. Judge Kravitz did not avail themselves - to query jurors directly about their race and ethnicity. While it may seem challenging to collect such data, it can be as simple as distributing a simple questionnaire to prospective jurors sitting in juror assembly room tomorrow morning.

We press ever forward.

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