A friend recently pointed me to a fascinating 2012 study of the role of race in criminal juries (h/t Marginal Revolution). The study is entitled “The Impact of Jury Race in Criminal Trials” and was authored by Shamena Anwar, Patrick Bayer and Randi Hjalmarsson. The study looked at the connection between verdicts in two Florida counties and the racial composition of jury pools–that is, the groups of about 27 from which actual juries of 6 to 7 are chosen. In short, all-white jury pools convicted black defendants at a higher rate, but the study found that that disparity evaporated if the jury pool–not the jury itself–included at least one black member.
Here’s the abstract:
This article examines the impact of jury racial composition on trial outcomes using a data set of felony trials in Florida between 2000 and 2010. We use a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants, and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool.
A significant portion of the study attempts to explain how the presence of a black individual in the jury pool could affect conviction rates, even if that person is never seated in the jury that votes on the defendant’s guilt. In a footnote, the paper briefly notes that exposure to the prospective juror during jury selection could have an effect on other jurors. To my mind, that possibility seems worth taking seriously. However, the paper focuses overwhelmingly on establishing the plausibility of a different explanation. During jury selection, the parties can use a certain number of “peremptory strikes” to exclude members of the jury panel from the jury. According to the study’s authors, in choosing to strike the black member of the jury pool, the prosecution is forced to give up the chance to strike a relevantly equivalent white juror. Thus, the presence of the black member of the jury pool can indirectly affect the ultimate verdict.
The paper’s findings underscore the importance of the legal rule known as the “fair cross-section requirement.” Under that doctrine, jury pools over time must be roughly representative of the population from which they are drawn. This requirement played a particularly significant historical role in increasing gender parity in criminal juries, but it has had a less prominent role in recent decades. Of course, that change partly reflects the greater equality of recent jury selection systems. But it also partly reflects a number of doctrinal rules that, whether right or wrong, preclude fair cross-section claims in certain contexts. For instance, some courts have adopted tests that would make it impossible to establish a fair cross-section violation where the underrepresented group comprises less than 10% of the overall population. Notably, the Florida study reviewed data from a population that was less than 5% black.
Perhaps doctrine should change in light of the study, assuming its results can be generalized. As noted earlier, the fair cross-section requirement asks only about jury pool compositions over time–not the composition of each individual jury pool. This feature of the doctrine might make sense if the ultimate value being protected is the prospective juror’s right to participate in a jury. But if the point of the fair cross-section requirement is to promote equality in verdicts, then perhaps the requirement should be stricter: even if every empaneled jury shouldn’t have to be demographically representative–a tall order given the small size of juries and the tradition of peremptory strikes–maybe that demand of representativeness should be made of each jury pool. More fundamentally, the doctrine currently purports to value only the odds of having members of particular groups empaneled on the jury, not the indirect verdict effects proposed in the study.
Commentators often focus on the Batson rule, which prohibits prosecutors from using peremptory strikes to exclude jurors based on their race. But the structural features of jury selection may be even more important to criminal justice.