Diversity and the civil jury.

• Author: Carbone, Christina S.
• Position: The Civil Jury as a Political Institution

TABLE OF CONTENTS INTRODUCTION I. CONCEPTIONS OF DIVERSITY IN THE CIVIL JURY CONTEXT II. JURY SERVICE AS A FORM OF POLITICAL, DEMOCRATIC PARTICIPATION III. JURIES INCREASE PUBLIC CONFIDENCE AND LEND LEGITIMACY TO VERDICTS A. Procedural Fairness and Perceived Legitimacy B. Representing a Community's Moral Sense C. Increasing Perceptions of Legitimacy Through Jury Service IV. JURY SERVICE AS AN EDUCATIVE OPPORTUNITY A. Learning About Political Institutions and Rights B. Engaging with and Learning About One's Political Community V. NORMATIVE CONSIDERATIONS AND CONCLUSION INTRODUCTION

Much focus (and criticism) has been given to the jury's role as fact-finder, including its ability to handle complex evidence, listen to and properly weigh expert and scientific testimony, conduct meaningful and productive deliberations, render appropriate damage judgments, and understand and properly apply instructions on the law. (1) The literature on diversity has also given attention to decision-making processes, the key question being whether more diverse groups render better decisions. (2) Although the competency and accuracy of jury decisions and the decision-making qualities of diverse groups are certainly important, this Article focuses instead on the jury's political functions and the role that diversity has in fulfilling these functions. What are the main political functions of the civil jury, and is jury diversity necessary for the fulfillment of these functions?

In this Article, we explore four of the primary political justifications for the institution of the civil jury, highlighting how jury diversity works to promote its underlying political and civic goals. Part I begins by explaining what we mean by the term "diversity" in the jury context. We adopt the definition of diversity that pervades current jurisprudence, particularly the fair cross-section requirement governing the composition of the jury venire and equal protection claims governing the selection of the jury panel under Batson v. Kentucky and its progeny. Part II moves to our analysis of the first of four political justifications for the institution of the civil jury commonly found in the literature: jury service as a form of democratic participation. We argue that diversity helps to reflect the voice of the community. Part III discusses a second political justification: the jury's role in increasing the legitimacy of both individual verdicts and the legal system more broadly. Here, we first inquire into the relevance that jury diversity has to perceptions of legitimacy and how different understandings of diversity might moderate this relationship. We then evaluate evidence regarding the link between group identities and divergent viewpoints, an empirical fact lying at the heart of the legitimacy argument. Lastly, we evaluate the capacity of jury service to influence the legitimacy of the jury system from the perspective of those participating as jurors.

Part IV evaluates the final two political justifications of the civil jury, both of which consider jury service an educative opportunity for citizens. First, jury service represents an opportunity to learn about governance, the operation of the legal system, and citizens' rights. Second, jury service presents a unique moment for members of a political community to interact and learn about and from each other regarding their lives and viewpoints. Here as well, we demonstrate the central role that diverse juries can play in advancing these two aims. With respect to the first, as with the democratic participation function, we argue that the educative benefits of the civil jury should be made available to all members of society. With respect to the second, we suggest that, notwithstanding the potential for the duplication of social status relations and other negative side effects of intergroup contact within the jury room, diverse juries represent an opportunity for learning across differences, especially when the environment is inclusive. Finally, having evaluated diversity's relevance to the political functions of the civil jury, Part V concludes by offering some normative suggestions on how the efficacy of juror diversity can be increased through structural and other reform efforts.

1. CONCEPTIONS OF DIVERSITY IN THE CIVIL JURY CONTEXT

   What do we mean by "diversity"? People can differ along an almost infinite number of characteristics, but the term diversity has most commonly been understood in terms of certain social categories (often ones with historical significance in this country), such as race and ethnicity, gender, sexual orientation, and religion. (3) In the jury context, jury diversity is shaped or constrained by the strategies used to generate the venire (for example the use of voter registration and/or driver's license lists), the fair cross-section requirement, and the limitations placed on the exercise of peremptory challenges under Batson v. Kentucky and its progeny. (4) Whereas others have commented on the efficacy of these measures in actually producing more diversity on juries, (5) a brief look at these latter two components sheds some light on how diversity is currently conceptualized under the law.

   The right to an impartial jury drawn from a fair cross section of the community has mostly been expounded upon in the context of the Sixth Amendment's right to a jury trial in criminal cases, (6) but has been applied to civil cases as well. (7) In order to ensure that juries serve "as instruments of public justice," this requirement is designed to create "a body truly representative of the community." (8) The fair cross-section requirement protects against the exclusion of a "distinctive group" and requires, in part, a showing that "the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community." (9) In determining what constitutes a distinctive group, some courts have required that (1) "there must be some factor which defines and limits the group"; (2) "there must be a common thread which runs through the group, a basic similarity in attitudes or ideas or experience which is present in members of the group"; and (3) "the group must have a community of interest which cannot be adequately protected by the rest of the populace." (10) The development of this requirement stemmed from a concern about the jury becoming "the organ of any special group or class" (11) or "the instrument of the economically and socially privileged." (12) In particular, courts were responding to a history of continuing underrepresentation and strategies of exclusion for women, African Americans, and other minorities. (13) This focus on particular groups with a history of marginalization in the United States has continued to shape our understanding of diversity on juries, with a few exceptions. (14)

   Just as the fair cross-section requirement can shape the jury venire, Batson v. Kentucky and its progeny (15) can shape the composition of empaneled juries by placing limitations on the use of peremptory challenges during jury selection. (16) It does so under the Equal Protection Clause of the Fourteenth Amendment by prohibiting the exercise of peremptory challenges on the basis of a juror's race, ethnicity, gender, or religion. (17) In order to prevail on a Batson challenge, a party must first make a prima facie case for discrimination of a member of a group capable of being singled out for differential treatment. (18) The range of cognizable groups under a Batson-type challenge is generally more restrictive than that found under the fair cross-section requirement, although some have commented that the two standards have become conflated. (19)

   Considering the fair cross-section requirement and the Batson line of cases together, these legal provisions generally focus on groups that historically have been excluded from the jury process, particularly racial and ethnic minorities and women. This translates into what has been called demographic diversity, even as doctrinal reasoning often treats demographic characteristics as proxies for viewpoint diversity (or different perspectives and ways of viewing and interpreting the world). (20) Additionally, given the historical development of these doctrines, the laws shaping jury diversity also can be understood in terms of culturally, socially, and historically embedded group differences in power and status.

2. JURY SERVICE AS A FORM OF POLITICAL, DEMOCRATIC PARTICIPATION

   In Powers v. Ohio, the Court observed that "with the exception of voting, for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process." (21) Despite common references to jury duty, scholars have argued that jury service should nonetheless be conceptualized as a political right on par with voting and holding office. (22) As with other democratic institutions, jury service is part of a larger system of checks and balances against the exercise of power. Whereas juries in the criminal context provide a check against the overzealous prosecutor, they restrain judicial arbitrariness or abuses of power in the civil context. (23) Juries also lend a local voice to laws that have been legislatively enacted at broader levels of government. Even without reaching the level of jury nullification, juries are sometimes situated to determine how to fairly apply laws to particular facts, especially when the law incorporates vague standards that require some amount of subjective interpretation. The political voice afforded jury members is arguably more direct than the model of participation typically operating in the voting context. Even the popular referendum process does not afford citizens the chance to be individually heard in the same way they can be during jury deliberations. As Alexis de Tocqueville noted, "[T]he jury puts the people themselves...