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Terms and conditions may apply. It's

0:20

a right guaranteed not once but

0:22

twice in our Constitution, a trial

0:24

by jury. And many of us are asked to

0:26

serve on them whether we want to or not. For

0:29

some, getting a jury summons in the mail brings

0:32

to mind scenes from courtroom dramas and popular culture,

0:34

like the 1957 film, 12

0:37

Angry Men. I gave you my arguments. We're

0:41

not convinced. I'm not convinced. I'm

0:43

not convinced. I'm

0:45

not convinced. We're

0:48

not convinced. We want to hear

0:50

them again. We have as much time as

0:52

it takes. We have as much time as it takes. Everything,

1:02

every single thing that took place in

1:04

that courtroom, but I mean everything, says

1:06

he's guilty. For others,

1:08

jury duty is a chore to get out

1:10

of any way you can. Remember when Tina

1:13

Fey's character in 30 Rock showed

1:15

up dressed like Princess Leia, for

1:17

instance. Excuse me, Imperial Guard,

1:19

how long do these arson

1:21

trials typically last? A

1:23

couple of weeks probably? You

1:25

can drop the voice. Oh, this used

1:27

to get me out of jury duty

1:29

in Chicago all the time. Whether jury

1:31

duty is a responsibility you dread or

1:33

relish, the trial of former President Trump

1:35

in Manhattan put the spotlight on the

1:37

jury selection process, one that happens in

1:40

courthouses across the country. Today,

1:42

we speak with legal experts about the role

1:44

juries play in our justice system and the

1:46

psychology of jury selection. But first, after the

1:48

break, we hear from someone who served on

1:51

a jury for another high-profile case. I'm

1:53

Jen White. You're listening to the 1A Podcast, where we

1:55

get to the heart of the story. Stay with us.

1:57

We've got a lot to get to. The

2:04

Indicator for Planet Money is a daily podcast that

2:06

helps you make sense of what's happening in the

2:08

economy. And video games are

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a growing slice of that economy, with

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as gamers. That's why we're

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dedicating a week-long series to the growing business

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of video games. Listen to

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The Indicator for Planet Money Podcast on NPR.

2:48

Joining us from New York is Philip Bump. Philip,

3:16

welcome back to the program. Thanks

3:25

for having me. The Astor Trial, or

3:27

people of the state of New York,

3:29

the Anthony Marshall and Frances Morrissey was

3:31

this very high-profile criminal case. The son

3:33

of philanthropist, Brooke Astor, was accused of

3:35

stealing millions of dollars from her during

3:37

the final years of her life. What

3:39

do you remember about the selection process

3:41

for that trial? It

3:44

was fascinating. I was doing consulting work at the

3:46

time and just had a job complete, and so

3:48

I didn't really have a lot on my plate.

3:50

I got this jury summons and went in. My

3:52

wife had recently had jury duty, and I was

3:54

very enthusiastic about it. I'm one of these nerds

3:56

that's very excited about civics and so on and

3:59

so forth. So I was very excited

4:01

and I went in and I remember sitting in this very, you

4:04

know, institutional room if you will, in an old

4:06

building down in lower Manhattan, and there was at

4:08

some point a question posed, who might be able

4:10

to be on a jury that could last for

4:13

a month or two? And I was

4:15

able to do so. And so I raised my hand and that

4:17

sort of kicked it off. And we went through a process that

4:19

was remarkably similar to the one

4:21

that we saw in Manhattan earlier this month

4:24

with the Trump trial. Do

4:26

you know why you were selected? Did you get a sense

4:28

of why they thought you would be a good choice? Yeah,

4:31

I mean, this is, I say this

4:33

a lot due to humility, but I was

4:35

told at the time that they were looking

4:37

for people who had some sense of the

4:39

complexities of the case. We obviously didn't know

4:41

what it was that the case

4:43

was about until the arguments were presented to us. You

4:46

know, we were weeded out so that we didn't have

4:48

preconceived notions about the case.

4:51

But they told us that they were looking

4:53

for people who had some background in something

4:55

that that that indicated that we would be

4:57

able to follow. I mean, it was a

4:59

complex case involving, you know, wills and

5:02

cottosols to wills and and institutional

5:05

donations to charities in New York City. And there's

5:07

a lot to it. And they just wanted to

5:09

make sure they had people that were able to

5:11

track the case. I know that sounds sort of

5:13

self-promoting, but that's why we're told. Going

5:15

into it, how did you view your responsibility

5:17

as a juror? I

5:20

mean, very seriously, right? The

5:22

nice thing about the case from my standpoint was

5:24

that I legitimately didn't know anything about it. I

5:26

knew the Astor name. I had heard

5:29

the name Burke Astor. I didn't know that's the case

5:31

for which I was being selected. And I didn't know

5:33

a whole lot about it. And, you know, I approached

5:35

it in the way that one would

5:37

hope a juror would, I believe, which is that

5:39

you kept an open mind and you looked at

5:41

the evidence that was presented to you in court.

5:44

And I had the benefit of not having had

5:46

any preconceived notions when I went in. As

5:50

you think about the process, what did you

5:52

not understand about what it meant to

5:54

be a juror until

5:56

after you went through that experience? I

6:00

think one of the, there are a number of revelatory moments

6:02

over the course. And this, you know, this lasted months. I

6:04

mean, they said who could be on it for a month

6:06

or two, it ended up lasting five or six months from

6:09

basically April to October of 2009. There

6:13

were a number of revelatory points. One was that, you

6:16

know, this probably should have been obvious to me coming

6:18

in, but your task there as a juror is not

6:21

to look at the defendant and say, hmm, I think

6:23

he committed the crime. It is

6:25

instead to say, you know, here's the evidence that I have

6:27

available and here's the letter of the law, which I think

6:29

is a nuance that's missed, that you're not just, you know,

6:32

judging guilt, you're judging

6:34

specifically to the statutes

6:37

that are at issue. And

6:39

that was not sort of my expectation coming in. I just

6:41

sort of thought you were presenting and you say, oh, you

6:43

know, guilt, you're not guilty. But, you know,

6:45

it's almost technical, it's almost mathematical, you know,

6:47

does this add up to the letter of

6:50

the law? The other big revelatory moment was

6:52

when we got into deliberations

6:54

and I realized that the other 11 people had

6:56

a different take than I did. You know, I

6:58

went into it and was like, oh, I see

7:01

all the evidence and I assume everyone has the

7:03

same conclusions as I do. And

7:05

that obviously is very much not the case.

7:07

Well, Anthony Marshall was convicted in 2009 on

7:09

charges that he defrauded his mother out of

7:11

tens of millions of dollars. And as you said,

7:13

Philip, the trial took close to six

7:16

months. How did your life change? That's a long

7:18

time to serve on a jury. It

7:21

is. You know, we made I think

7:23

it was like 40 bucks a day after three weeks

7:25

had jumped up to $49 a day.

7:28

So it was a real boost in the income there. But, you

7:30

know, from the standpoint of just getting

7:32

by, it was difficult. It was challenging.

7:34

I didn't have an external employee who

7:36

was paying me. It

7:38

was also just weird because my wife knew

7:40

what case I was on and she was

7:42

tracking the news.

7:47

And, you know, there'd be times I'd come home

7:49

after a particularly interesting to the outside world

7:51

witness. And she'd sort of be looking at me

7:53

expectantly trying to read my face to get a

7:55

sense of how things had gone, which

7:57

I was used to because in the courtroom, the same thing

7:59

happened and the lawyers all scrutinize you

8:01

over the course of the trial to try to

8:03

time, you know, sense how you're, how you're perceiving

8:05

things. But it's just, it's just

8:07

odd to have a job that you spend all

8:10

day and then you get home and you literally

8:12

can't talk to your spouse about it. It is,

8:14

it's unusual. And, you know, once the trial was

8:16

over, we spent a lot of time sort of

8:18

debriefing what each of us had experienced. We're

8:21

talking to Philip Bump. He served as a

8:23

juror in the 2009 trial of Anthony Marshall.

8:26

Marshall was found guilty of defrauding his elderly mother,

8:28

Brooke Astor, out of millions of dollars. We're

8:30

also hearing from you. One of you texted,

8:32

I've gotten several summons over the years. It

8:34

feels like an annoyance, but I know it's

8:36

important. I was chosen as a juror for

8:38

the first time recently in a civil trial

8:40

in Houston. The judge and his staff were

8:42

so kind and professional to the jurors. I

8:44

was kind of blown away. The deliberation process

8:46

was intense, but I was proud of the

8:48

verdict we came to. It was an experience

8:50

I'll remember. And another of you shares this

8:52

being from Kentucky, I was thrilled to serve

8:54

on a three week trial involving a dispute between

8:56

partners in a horse racing business. I find

8:58

the whole process fascinating. Jury selection,

9:01

opening and closing arguments, evidence allowed

9:03

and not allowed, deliberation and people

9:05

watching. Thanks for those messages. Philip,

9:08

more broadly, how did serving on a jury change

9:10

the way you think about our justice system? It

9:13

really did make me more attuned to

9:15

A, the difficult role

9:17

that jurors play. You know, I

9:20

mentioned earlier that that comparison between the statute and

9:22

the evidence, which I think is new and

9:24

a lot of people miss. But then secondarily

9:26

that just gave me a better sense

9:28

of how difficult it is to have

9:30

those two things line up, right? You

9:33

know, we we

9:35

distill the process of adjudicating people's

9:37

guilt in these things through the

9:40

lens of public opinion often. You

9:42

know, we look at it and say, yes, I think he

9:44

did this right. You know, I think I think she didn't do this.

9:46

And this this gave me a much better

9:49

sense of I Am

9:51

I am less likely to jump to

9:53

conclusions about how juries did well or

9:56

did poorly, because I am not privy

9:58

to the. The

10:00

Dow Jones, the oven to the have I did

10:02

not study the letter of law in the way

10:05

that they did or in a were presented to

10:07

you were able asked the judge questions about the

10:09

letter of law A may be much more cautious

10:11

about assuming that someone got it right or wrong

10:14

because you're simply not in that room and under

10:16

the same conditions of their to. This case received

10:18

a lot of media attention at the time that

10:20

what was it like serving on a jury for

10:22

such a high profile case. Honestly,

10:26

we do. You didn't get a sense as

10:28

a juror that there was a whole lot

10:30

of attention being paid to reprise his. We

10:32

didn't get the news we didn't read about

10:34

Bob was happening. They know we've found out

10:36

For example, the deaths of four percent on

10:38

our case had been attacked on the subway

10:40

or from her in the room. and right

10:42

oh my gosh it's terrible later to find

10:44

out that as a big story and your

10:46

posts for like we see ourselves in that

10:48

with at the moment at which you know

10:50

obvious we have a lot of high profile

10:52

witnesses and resistance or came to death by

10:54

anathema. Winter. Came to test flights you know

10:56

there are a lot of we knew from

10:58

that standpoint that did that there was a

11:00

significance to it's the moment at which I

11:02

realize that this something on people were tracking

11:04

was after we had to them are are

11:06

verdict and we walked out of the building

11:08

and then for the first time reporters were

11:10

able to speak with us and the new

11:12

all of our names and were asking very

11:14

specific questions by with us it's very weird

11:16

experience is his if you're not used to

11:18

having you know you are to walk out

11:20

of building and have that's the likes of

11:22

reporters to say name is rumpus bumps on

11:24

that. Was the moment which is like oh did

11:26

this This is me, a sense of the skeleton.

11:29

When I got home in there was a report

11:31

from the Times Within taught me my doorstep that

11:33

in that be sad and upset and he was

11:35

that context. How are you thinking about what might

11:37

be on the minds of jurors who are serving

11:40

in Trump's case in Manhattan? Yeah,

11:42

I'm really obviously. the to

11:44

aren't comparable a minute the scale of

11:46

this case is so much larger than

11:48

when we went through would seem very

11:51

big at the time i'm deeply deeply

11:53

ah and as at with what they're

11:55

going through the is a very difficult

11:57

thing to have to exclude news ah

12:00

To exclude any sort

12:02

of mention of this very, very high-profile case to not

12:04

be able to talk to anyone about it. And then,

12:06

of course, they had this added layer of there

12:09

is a real risk to them being

12:11

known as members of this jury. We

12:13

didn't have that. I didn't need to

12:15

worry about it. I wasn't

12:17

telegraphic that I was a member of this

12:20

jury, but they have to worry about that.

12:22

So it is a very, very difficult task

12:24

in the best of circumstances, and they are

12:26

under a particularly challenging circumstances as well. That's

12:29

Philip Bump. He's a national columnist at the Washington

12:31

Post. He served as a juror in the

12:33

2000 case known as the Aster trial. Philip,

12:35

thanks for speaking with us. Of

12:38

course. Coming up, how are juries

12:40

selected, and can we ensure they're impartial?

12:42

We'll get to that after the break.

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14:16

We're discussing jury duty. The criminal trial

14:18

of former President Trump put the jury

14:21

selection process in the spotlight, but every

14:23

day, juries are seated in courthouses across

14:25

the U.S. Joining us in

14:27

studio is veteran trial consultant Leslie Ellis. She

14:30

holds a doctorate in social psychology and is

14:32

the founder of the KAISA Group, that's a

14:34

litigation consulting firm. Leslie, welcome to the program.

14:36

Thanks for having me. Also with

14:39

us from Tampa, Florida is Jeff Schwartz. He's

14:41

a professor of law at Cooley Law School

14:43

and a former judge with the Miami-Dade County

14:45

Court. Jeff, thanks for joining us. Thank

14:48

you for having me. I appreciate it. And

14:50

with us from Newton, Massachusetts is Ron Sullivan.

14:52

He's director of the Criminal Justice Institute at

14:54

Harvard Law School, where he's also a professor.

14:56

Ron, welcome to 1A. Good morning.

14:59

Ron, just explain how central are

15:01

juries to our legal system? They're

15:04

absolutely central to our legal system. So

15:06

we have a system where we believe

15:08

that we can be judged by a

15:10

jury of our peers and that that's

15:12

the best system in

15:14

the world in order to adjudicate

15:16

guilt or innocence in the criminal

15:18

context or whether to or how

15:20

to apportion financial responsibility

15:22

in the civil

15:25

context. So it has worked well

15:27

and consistent with your call

15:30

or your writer's email or

15:32

text. There's an old

15:34

saying that our system of justice is

15:36

the worst in the world, except for

15:39

all the others. And that's probably

15:41

true. And the point here is

15:43

that it has its issues here and there, but

15:46

net net, it does a pretty

15:48

good job at getting to the truth.

15:51

Jeff, how are jurors typically summoned?

15:54

Well, jurors are typically summoned to come to

15:56

the courthouse, either by way of the fact

15:58

that they have a driver's license. or

16:01

some are taken off of the voter registration

16:03

rolls. The state of Florida, we used to

16:05

use voter registration rolls, but now we use

16:07

the driver's license. You have a driver's license,

16:09

you're gonna get a summons sooner

16:11

or later. That's how they end up coming to

16:13

the courthouse. Have you ever been summoned, either while

16:15

working as a judge or as a professor? Surprisingly,

16:19

I never got summoned until about

16:21

a month after I got elected

16:23

as a judge. And just

16:25

before I took office, and of course at that point,

16:28

there's no way I'm gonna be on a jury. And

16:30

now even if I got a summons, there's no way

16:32

a judge is going to let a former judge be

16:34

on a jury. Ron, what

16:37

types of cases get juries? So

16:41

for criminal cases, juries

16:43

are required for felony

16:46

cases. So you have felony cases

16:49

versus misdemeanor cases. And in most

16:51

jurisdictions, the

16:54

felony case is

16:56

triggered by potential prison

16:58

exposure of more than six months.

17:00

That tends to elevate cases from

17:03

a misdemeanor to a jury. So

17:05

for those cases, you

17:07

get a jury and that's

17:09

required by the constitution. In

17:12

civil cases, it varies

17:14

from state to state in terms

17:16

of whether they're jury eligible and

17:18

the number of jurors. But in

17:21

very many civil cases,

17:23

these are cases for money damages.

17:26

One will have a jury as well. Now,

17:29

Leslie, you've worked as a trial consultant

17:31

for more than two decades. How are

17:33

trial consultants used in jury cases? So

17:36

jury consultants can be used in a lot

17:39

of different ways in jury cases. And we

17:41

can be retained anywhere from before

17:43

a civil case is even filed or when

17:46

an indictment is expected, all

17:48

the way through the end of

17:50

trial. Specific to jury selection, we

17:52

work with our clients to help

17:55

develop a profile of who we

17:57

think are good, but more importantly, bad

18:00

jurors are going to be, which types of people

18:02

do we think are going to be most biased

18:04

against our case. We can

18:06

help our clients draft what your questions, either to

18:09

submit to the judge or to ask themselves. We

18:11

help with drafting juror questionnaires for

18:14

jurors to complete in advance of

18:16

the trial, and then we can

18:18

be there during jury selection to

18:20

advise and follow up. And

18:22

then sort of the ultimate end

18:24

of jury selection is who should be

18:26

struck with primary challenges so we can help

18:28

our clients make those decisions as well. Now

18:31

we've heard that term vaudier quite a bit

18:33

in recent weeks, just to find that for

18:35

us. Sure. Jury

18:37

selection is the whole process of jury

18:39

selection. Vaudier is Latin for to speak

18:41

the truth, and that generally refers to

18:43

the process of questioning jurors during the

18:45

process of jury selection. Now jurors are

18:47

supposed to be impartial, but what other

18:50

qualities are you looking for? Well

18:52

impartiality really is what

18:56

we're looking for. So that's

18:58

the most important thing we're looking for. Something

19:00

else that we're also focused on in jury

19:02

selection is leadership skill.

19:06

Really when we're trying to decide who we

19:08

might want to strike with those primary challenges,

19:12

there are people who may or may not be the most

19:15

open to our clients' cases, but the ones

19:17

we're the most worried about are the ones

19:19

who are likely to take a leadership role

19:21

during deliberations. Subscribed

19:23

consensus, very likable people can bring

19:26

people along with them. They

19:28

are more quote-unquote dangerous than

19:30

those who are quieter, more likely to

19:33

go along with the group. Jeff, what

19:35

role do judges play during vaudier?

19:39

It depends on whether you're in federal court

19:41

or many state courts. In federal court, it's

19:43

very rare that lawyers really get to ask

19:45

very many questions, if any at all. Usually

19:49

they have to submit their questions in writing

19:51

and the judge does all of the questioning.

19:54

There may be some follow-up questions that are

19:56

requested at a sidebar and the judge in

19:58

fact will ask those questions. questions. In

20:01

state courts like in Florida, for example,

20:03

and I practice in Ohio also, the

20:06

lawyers do most of the questioning. A

20:09

judge will ask some basic questions about

20:11

the jurors and then turn it over

20:13

first to the prosecutor or

20:16

the plaintiff and then to the defendant

20:19

to ask follow-up questions and to ask

20:21

questions that are important to them to

20:23

determine whether they have any preconceived notions,

20:25

whether they know any of the witnesses.

20:27

There's a lot of reasons why they

20:29

would ask, try to get their attitudes

20:31

on things by asking questions like what

20:33

kind of magazines do you

20:35

read, what television programs do

20:37

you watch, and then they

20:40

try to formulate a thought process of what

20:42

kind of juror they want and whether those

20:44

people fit that. So it really does

20:47

depend on what court you're in, whether

20:50

it's federal or state courts. That's

20:52

just kind of the way it works. Run,

20:55

you worked as a public defender in DC. You've

20:57

selected more than 100 juries for trial.

21:01

When you were going through that process, were there

21:03

certain characteristics that you kept

21:05

an eye out for in a potential

21:07

jury? Indeed, but

21:09

it really was dependent on the

21:11

type of case. So by

21:14

way of example, if

21:16

there was a case where we

21:19

had a very technical defense,

21:23

I might look for a juror who has some

21:25

sort of technical background because that juror

21:27

may be able to understand. So if I

21:29

had a complicated DNA

21:31

case in a homicide, then

21:34

while in the normal course, I

21:36

would not prefer a biochemist on

21:38

my jury. If one were there,

21:40

then that might be someone I'd

21:43

look to, or an engineer, or

21:45

someone who has some sort of

21:47

technical background. It really, really depends

21:49

on the type of case. And

21:51

depending on the type of case, that's the

21:53

sort of juror that you're looking for. Now

21:55

I agree wholeheartedly with

21:58

what the jury consultant said. or

22:00

as a baseline, you want someone

22:02

who you think will be fair,

22:05

impartial, and follow

22:08

the instructions. However,

22:10

beyond that, each side is looking for

22:12

a juror who they think is more

22:14

disposed to their side of the case

22:16

than the other case, and that is

22:18

very much case-dependent. Hostess Jeff, I'm sure

22:20

during your time on the bench, you

22:22

probably heard quite a few excuses for

22:24

people trying to get out of jury duty.

22:27

How did you either respond to

22:30

those excuses? What did you tell

22:32

people? There are some

22:34

people who honestly have a

22:36

problem with the idea of judging other

22:38

people's actions, and those are the religious

22:40

or moral objections, and

22:42

those are the kind of people that

22:45

obviously are excused almost immediately when they

22:47

state that. Then there's always the

22:49

one who doesn't want to be there, and

22:52

it's a criminal case, and this has

22:54

happened where they say, well, I

22:56

don't think I can be fair because I

22:58

think he's guilty or he wouldn't be sitting

23:00

here. The minute

23:02

someone says something like that, I

23:05

don't excuse them, and I have on occasion when

23:08

they become very insistent upon it that they're overplaying

23:10

it, I said, okay, you're not going to be

23:12

on the jury, but you're going to sit in

23:14

the back of the courtroom and you're going to

23:17

listen to this whole case, and you will report

23:19

every morning. I

23:21

want them to understand and carry with

23:23

them the message that

23:25

we need jurors, and I'm

23:27

sorry you're busy, but everybody's busy, and

23:30

this is something that is part of being a

23:33

citizen in this country and that is sitting on

23:35

juries. You

23:37

really have to look at attitude, you have

23:39

to look at the way that they're ... You look at

23:41

body language, you look at a lot of things to see

23:44

if they're really being serious about it. If

23:46

you have unchangeable

23:48

plans like vacations or medical treatment

23:51

or things like that, then

23:53

you have to let them go and they'll just get

23:55

re-noticed for another time. You really have

23:58

to be very careful about how you do this. You

24:00

have to walk in there with an understanding that

24:02

there's a duty that you're performing and you really

24:04

need to stay and do that duty And briefly

24:07

what happens if someone is summoned but they don't

24:09

show up That

24:11

depends on the jurisdiction in federal court a

24:13

lot of times They will get a notice

24:15

from the judge on a rule to show

24:17

cause why weren't you here? They

24:19

are subject to contempt of court for failure to

24:21

obey the summons It's pretty much that

24:23

way in every state, but most of

24:26

the time in state courts They just don't want

24:28

to push that button. They'll just re-notice them for

24:30

another time if they're repeat offenders

24:33

And it's a different story then you have to bring them in

24:35

and explain the facts of life to them Let's

24:37

take a quick pause here still to come

24:39

ever wonder why you haven't been chosen

24:41

for duty We explore the psychology of

24:43

jury selection in just a moment Do

24:50

you want in on a secret? It's

24:53

why your favorite pop star is so popular

24:55

or why a makeup fab is suddenly

24:58

sweeping your feed It's

25:00

that none of these things happen by

25:02

accident on the it's been

25:04

a minute podcast I don't just tell

25:06

you what's trending I dig deeper to find

25:09

out why Join me. Let

25:11

me loose on it's been a minute

25:13

from NPR Go

25:15

back to jury duty the US

25:17

citizens have a right to a trial

25:19

by a jury of their peers But

25:21

that right has not been granted equally

25:23

black Americans in the South were frequently

25:25

excluded from juries That led

25:27

to the case Norris v. Alabama in 1935 The

25:31

court ruled that the exclusion of African Americans

25:33

from jury service violated the equal protection clause

25:35

of the 14th Amendment The

25:37

case originated in Alabama nine African American

25:40

teenagers known as the Scottsboro nine Had

25:42

been falsely accused of raping two white women in 1931

25:46

The jury in that Alabama trial has

25:48

no African American members eight

25:50

of the teenagers were sentenced to death The

25:53

Supreme Court was able to reverse the conviction of

25:55

one of the young men Clarence Norris because of

25:57

jury discrimination Ron would

25:59

have been someone the more recent Supreme Court

26:01

rulings related to the racial composition of

26:03

juries? Well, Batson

26:06

v. Kentucky probably

26:08

was the most significant case to

26:10

follow, Norris, and that has to

26:13

do with the exercise of peremptory

26:16

strikes. So Norris

26:18

had to do with the jury

26:20

pool, whether you could systematically exclude

26:22

blacks from the jury pool. Batson

26:26

says, once they're in the pool, you

26:28

can't just get rid

26:31

of them by exercising peremptory

26:33

challenges. So Batson's

26:35

progeny has gone on to say that

26:37

just as you cannot exclude people

26:41

from using peremptory strikes based

26:43

on race, you cannot do

26:45

it based on gender and

26:47

sexual orientation either. So

26:50

these are all safeguards to

26:52

help ensure that it is,

26:54

in fact, a representative sample.

26:57

Leslie, when you're advising clients, how do

27:00

you advise them with that

27:02

context to help them avoid breaking the law?

27:05

Sure, sure. There

27:08

are a lot of stereotypes around

27:10

jurors and demographics and which demographics

27:12

would make a, quote unquote, good

27:14

or bad juror. What

27:17

we know from the research is

27:19

that there's very little relationship between

27:21

demographics and verdict preferences or how

27:23

they'll see the evidence. The

27:25

real issue is experiences, attitudes, beliefs,

27:28

and those affect how people view

27:30

and evaluate and weigh evidence. So

27:33

when I talk to clients about this, what I

27:35

say is not only

27:37

should you not base jury selection

27:39

decisions and peremptory challenge decisions based

27:41

on race or gender because it's

27:43

unconstitutional. You shouldn't do it because it's just a

27:46

bad use of a strike. If

27:49

we get enough information during jury selection,

27:52

which is another issue, we

27:54

should be looking more importantly at

27:56

those case-relevant attitudes and experiences and

27:59

world beliefs. that are more likely

28:01

to have an impact on whether a juror is going to

28:03

be biased for or against a party. And

28:06

yet, Ron, we do see across

28:09

Supreme Court cases this

28:11

issue being raised about the racial

28:14

composition of juries. So if

28:16

the research says, well, demographics isn't a

28:18

good way to decide or figure out

28:21

how a jury is going to decide

28:24

a case, why hasn't it been important

28:26

to address this issue of racial

28:28

bias on juries? Well,

28:32

that's a very complicated question

28:34

and a very complicated issue.

28:37

So a couple

28:39

things, and several states

28:41

have made strides to try to

28:44

remedy the following. But what we found

28:46

over the years is that the jury,

28:49

the mechanisms that states use

28:52

in order to draw jurors

28:55

to the pool were

28:58

underrepresentative. That

29:01

is, maybe voter

29:03

rolls, for example, would

29:06

disproportionately favor some races as

29:08

opposed to others because

29:10

some people registered to vote with

29:13

more frequency than others. So you

29:15

didn't draw as much from the

29:17

pool. So states that do

29:19

a good job will use all sorts

29:21

of inputs in order to bring

29:24

people onto the

29:26

jury pool, voter registration,

29:29

driver's licenses, ID

29:34

cards for libraries, I

29:36

mean, just tax records

29:38

for homeownership, I

29:40

mean, all sorts of places

29:43

to draw. So that's one

29:45

way to help. A member of our text club

29:47

writes, one time I got as far as being

29:49

in the jury pool, I asked

29:51

how the defendant would get a fair trial

29:53

if none of us on the jury were

29:55

people of color. The defendant was Hispanic. I

29:57

was immediately removed. My question was not answered.

30:01

Jury polls often come from voter rolls

30:03

or DMV records, as we discussed. That

30:05

can skew jury pools to people who remain at one

30:07

address for a longer time, though

30:10

citizens tend to be more white. Additionally,

30:12

according to a 2023 Gallup poll,

30:14

about 40 percent of Black Americans

30:17

say they are likely to be treated unfairly

30:19

by police compared to less than 20 percent

30:22

of white Americans. And admitting to

30:24

a negative experience with law enforcement can keep someone

30:26

from being selected as a juror. Ron,

30:29

how do you ensure that juries

30:31

reflect their communities? That's

30:34

tough. So when people

30:36

hear that a jury is supposed to

30:38

be a jury of one's peers, that

30:41

does not literally mean that

30:43

there is a sort of

30:46

numeric representation that is consistent

30:49

with who the defendant or defendants

30:51

are. What that means is

30:53

that it's drawn from the community in

30:55

which the person lives. So

30:59

it is tough. There are structural reasons that

31:01

explain it as well. That

31:04

is to

31:07

say that many Black and brown

31:09

people cannot afford

31:11

to sit on juries. So

31:14

I have a trial coming up in May. It's going to be

31:16

a six-week trial. I'm not optimistic

31:18

that I'm going to get a lot of Black

31:20

or brown people on that jury. One

31:23

of the reasons is that you have to have

31:25

a job that pays you in

31:28

order to serve on a jury. Many

31:30

people do not have jobs that pay, and

31:33

they simply can't pay their mortgage or their

31:35

rent or their light bill if they sit

31:37

on a jury for four, five,

31:39

six weeks. So

31:41

that skews a jury in a

31:43

certain direction already. One

31:46

of the things we have to do is

31:49

make jury service affordable. What

31:52

jurisdictions pay varies from state

31:54

to state, but it's basically

31:56

enough to pay your parking

31:59

fee. and get a sandwich for

32:01

lunch, but it doesn't make up for

32:03

what you lose. So with

32:06

minority candidates on a jury, it's

32:08

usually people who have state jobs

32:10

because states are required by law

32:12

to pay their employees when they

32:15

get jury service, or

32:19

folks who tend to

32:22

have some other income

32:24

that allows them to spend time

32:27

on a jury. So that's a

32:29

tough one. It's structural, it's extrajudicial,

32:31

meaning that the solutions have

32:34

to come outside of the

32:36

judiciary as well as making

32:39

some changes inside of the judiciary.

32:41

Leslie? One other thing

32:43

that I think is helpful, or

32:45

will be helpful, as Ron said, Batson has

32:47

been around since 1986. It

32:51

hasn't been terribly effective. It's difficult to

32:53

implement the steps that are required. What

32:56

some states have started to do just in the

32:58

last few years is change the

33:00

way their state

33:03

Batson procedures happen. And so they're

33:05

making it easier for a

33:08

litigant, for an attorney to make a

33:10

Batson challenge, meaning to say that the other

33:12

party has struck somebody based on race or gender

33:14

or sexual orientation, and

33:17

lowered the burden to try to prove

33:19

to the court and for the court

33:21

to rule that that

33:23

juris-constitutional right has been violated. So

33:26

people are trying to make Batson a little bit

33:28

easier to implement. That

33:31

is, as Ron said, sort

33:33

of one of the few tools that you

33:35

actually have in the courtroom. Jeff, as a

33:38

judge, were you able

33:41

to intervene in the jury selection

33:43

process if you felt one

33:47

side or the other was skirting

33:49

close to violating the

33:52

rules? Yeah,

33:54

but that normally comes up in the

33:57

context of an objection to at least

33:59

the And what we've set up

34:01

under what we call the Neil and

34:03

Slappy cases in the state of

34:05

Florida, that if in fact someone

34:09

is striking, for example, all of

34:11

the African-Americans off the jury, and

34:14

it's an African-American defendant, the defense

34:17

attorney is going to stand up and say

34:19

after one of them, and then you get

34:21

to the second one, judge, we want a

34:23

race-neutral reason why this

34:26

prosecutor is striking African-Americans off

34:29

the jury. If

34:31

that reason isn't really

34:34

palatable to the judge, then

34:37

the judge can say, I am denying your

34:40

peremptory challenge. You can use,

34:42

if you really have a reason that you don't

34:44

like this juror, then you can use one

34:47

of your challenges for cause. And

34:49

it's our way of kind of regulating that. It

34:52

doesn't matter what the minority

34:54

might be or the class of

34:56

person that we're talking about that

34:59

they're striking, whether it has to

35:02

do with gender or it has

35:04

to do with sexual preference.

35:08

It doesn't really matter. If in

35:11

fact that's happening, then the judge has the

35:13

right upon the objection of the opposing counsel

35:15

to say, no, I'm not going to let

35:17

you exercise a peremptory here. Leslie,

35:19

what types of group dynamics emerge

35:21

during jury deliberations? Group

35:24

dynamics are a lot of fun to watch, particularly

35:27

among juries. There's

35:29

a lot of research that shows the way

35:32

the majority feels at the beginning

35:34

of deliberations, so the majority of

35:36

the individual verdict preferences, tends

35:39

to be what the outcome is. What

35:42

happened in the 12A agreement is not what normally happens.

35:45

But a lot of it depends on the

35:47

decision rule. Some juries have to be unanimous.

35:50

Some juries can decide by a majority vote.

35:52

How those group dynamics work in

35:54

that deliberation process is

35:56

very different if the verdict has to

35:59

be unanimous versus majority. And the

36:01

unanimous jury, they have to get everybody

36:03

on board. In

36:05

a majority decision rule, they can sort of

36:07

take an initial vote, see

36:09

how many, where everybody lies, and then

36:12

they can sort of ignore the strongest

36:14

jurors who the majority knows they'll never

36:16

be able to convince and sort of

36:19

pick off the sort of weaker links.

36:22

Going back to the early discussion of

36:24

representative juries, that is also a

36:26

really important issue when it comes to jury dynamics,

36:28

because we know from a

36:31

lot of research from experience that diverse

36:33

groups make better decisions in general. And

36:36

what we also know from some

36:38

very interesting research is that racially

36:41

mixed juries deliberate better than all

36:43

white juries. They discuss

36:45

the evidence more thoroughly, they

36:47

remember more of the evidence, they see

36:49

they pay better attention during the trial

36:51

itself. And so that can

36:53

really affect the group dynamics as well. Well, we'll have

36:56

to leave it there, but there's definitely still lots to

36:58

discuss. Our thanks to our guests

37:00

today. Leslie Ellis is a trial consultant

37:02

and founder of the Kaisa Group.

37:04

That's a litigation consulting firm in

37:06

Washington, DC. Ron Sullivan, a

37:08

professor and director of the Criminal Justice

37:11

Institute at Harvard Law School, and Jeff

37:13

Schwartz, a professor at Cooley Law School

37:15

and a former judge with the Miami-Dade

37:17

County Court. Thanks to you all. Today's

37:20

producer was Anna Casey. This

37:22

program comes to you from WAMU,

37:25

part of American University in Washington,

37:27

distributed by NTO. And

37:29

Jane White, thanks for listening. This

37:32

is Dene. For

37:54

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