"A jury of our peers": is that right? The IADC A Jury of Our Peers Committee reports on projects around the United States to improve the workings of the civil jury system.

• Author: Mooney, Harry F.
• Position: International Association of Defense Counsel

I do not know whether the jury is useful to those who have lawsuits, but I am certain it is highly beneficial to those who judge them; and I look upon it as one of the most efficacious means for the education of the people which society can employ. --ALEXIS DE TOCQUEVILLE (1835) JOHN STUART MILL observed that the jury system is at the very heart of democracy. Therefore, to preserve the very essence of democracy, its citizens must be willing to serve on juries.

For this reason, the A Jury of Our Peers Committee was established in 1996 by then president of the International Association of Defense Counsel, George Gore. As an active trial lawyer, he was impelled by his observation that the triers of fact at most civil jury trials in the United States did not represent a true cross-section of the community.

President Gore's charge to the committee was "to survey and evaluate all federal and state jurisdictions to find out how they summon, select and empanel jurors" and to "recommend changes so that jurors who sit on the trial of a civil case truly represent a cross-section of the community and that those jurors who pass judgment on plaintiffs and defendants in civil actions will be drawn from juror pools that fairly represent all segments of the community." The project, one of the first issues tackled in Mr. Gore's presidency, underscores the IADC's recognition of the importance of the jury system to the American justice system.

With this in mind, the committee embarked on a mission to find ways to make the civil jury system more representative of all segments of society. It was a project intended to benefit society as a whole.

The issues faced by the committee were not new. For instance, one law review article as far back as 1930 decried the fact "most educated classes were exempt from jury duty." (1) There have been a number of recent jury reform movements dating from the 1970s which have led to improvements in the administration of such essentially administered jury service systems and have opened jury service to more citizens. (2)

In 1994, Arizona and New York adopted major jury reforms. Arizona's project focused on the trial aspects of jury service, but it also implemented changes in public education about jury service and jury trials, improvement of juror source lists and requests for deferral and excusal from service. (3) New York conducted a major overhaul of its jury reform system, implementing significant reform and source lists, terms of service, qualifications, exemptions, excusals, deferrals, as well as jury selection and service. (4)

The IADC committee conducted a survey of all U.S. jurisdictions and found that many citizens sought and received exemption from jury service. The committee also discovered that juror source lists often did not reflect entire populations eligible for service. In light of its findings the committee made recommendations for legislative and rule changes and proposed public education to enlighten the citizenry about the benefits of jury service. Indeed, the committee drafted its own model statute relating to selection of prospective jurors, which appears as Appendix A to this article. The survey of U.S. jurisdictions, originally conducted in 1997, has been updated as of September, 2003.

The IADC committee also has noted that other organizations, including the National Center for State Courts and the American Legislative Exchange Council, have evaluated jury eligibility and weighed in with their own recommendations for spreading jury service among the whole population.

This article evaluates the current state of affairs to open jury service to all citizens, and it consists of three sections:

Section I updates and comments on the state and federal tables regarding the analysis of the inclusion/exclusion of potential jurors in the jury pool of state and federal courts.

Section II discusses reform efforts now under way to improve the functioning of the jury system. In particular, it examines the American Legislative Exchange Council's Jury Patriotism Act, which appears as Appendix B to this article, and the effect that some of its proposed provisions may have. It also considers the National Center for State Courts National Program to Increase Citizen Participation in Jury Service through the jury innovations programs and the efforts of New York Chief Judge Judith Kaye.

Section III offers a brief summary of the essential nature of ongoing reform efforts and suggests how the laudable goal of a citizen's right to a jury of one's peers can be maintained and improved on.

1. SURVEY OF STATE AND FEDERAL COURT RULES

   1. Federal Courts

      At the outset it should be noted that past and present jury plans for the federal district courts are not as readily available as state statutes concerning jury selection. All of the 86 jurisdictions have provided information for the survey. However, very few of these jurisdictions responded to our initial report in 1997. This limitation prevents a full-scale analysis of the federal system on a district-by-district basis. Thus, the prevailing trends in this small sampling may not be indicative of the over-all movement in jury selection procedures within the federal system.

      With that caveat aside, the federal courts are showing promising signs of attempting to convince more potential jurors to perform their civic duty. Of the 16 jurisdictions that have made changes to enable more people to sit for jury duty, at least eight have broadened the jury pool by supplementing the typical voter registration list with either a list of licensed drivers or a motor vehicle registration list. (5)

      This is a very sensible move considering that the 2002 census revealed that only 70 percent of American citizens at least 18 years old are registered to vote. (6) With nearly 30 percent of the eligible population not even considered for jury duty, new methods must be devised to empanel potential jurors. This reform alone is certain to bring potential jurors in the door and increase diversification in the jury box.

      Another step to increase the size of the potential juror pool is to change the requirement that a juror be a U.S. citizen to being a lawful permanent resident. Under current laws, 8 percent of the U.S. population over the age of 18 is automatically disqualified from service. The 8 percent figure represents more than 15 million people. (7)

      A long-time hurdle to jury diversification has been the excusal of professionals such as doctors, lawyers, dentists and nurses, as well as small business owners, from the jury selection process. Five jurisdictions have entirely removed the classification system and opted to excuse jurors on a case-by-case basis. (8)

      Three districts that previously required all excused jurors to meet a form of "undue hardship" or "extreme inconvenience" standard have reverted back to the group-based system, which excuses jurors on request if they belong to a professional class, are over the age of 70, or have served on a jury in the past two years. (9) This change begs the question: Are courts finding it more efficient to excuse whole classes of jurors before the voir dire process based on the assumption that attorneys will dismiss these jurors once the voir dire process has begun?

      The federal District Court of Maryland has taken the compromise approach of temporarily excusing teachers until they are available for duty. This may make sense for a number of other professionals who are unable to take an unexpected absence from their jobs. By allowing people to postpone their jury duty, courts will create a greater diversity of jurors, while not unnecessarily inconveniencing those people with important responsibilities.

      Last, this sampling indicates that 25 of the federal districts on which the IADC committee previously had information have changed their jury plans in some manner. This suggests that there is much more activity concerning jury selection within the federal system than the state system. The malleability of the federal jury plans may be the impetus that brings change to an otherwise archaic system of jury selection.

   2. State Courts

      Use of a revised master list must be the first step toward increasing the number of people who are asked to be included in a jury pool. If it is from this master list that potential jurors will be drawn, then ideally the master list should strive to include the names of all local residents.

      As Shari Seidman Diamond, in a recent article in the Harvard Journal of Law & Public Policy states:

      The modern American jury is the product of a multi-stage situation process that typically begins with a list of potentially eligible jurors drawn from voter registration lists and often supplemented by individuals holding drivers licenses in the general geographic area where the court is. (10) The master list for a vast majority of the states is composed of names from the state's voter registration and drivers license lists. However, as the 1970 Uniform Jury Selection and Service Act concluded, a true cross-section of the community cannot be reached by drawing exclusively from these two lists. Only a few states have come to the same conclusion by adopting broadly based juror service lists. Since 1997, only four states or jurisdictions have modified the composition of their master list. Of these, three the District of Columbia, Georgia and Kentucky--added lists of jurors' names to be used, and one--Vermont deleted lists. The one state that deleted lists previously had used both the voter registration lists and driver's license lists. Vermont now no longer uses the drivers' license list.

      This is clearly a step in the right direction. States should attempt to add lists in an effort to include all segments of society in any given pool of potential jurors. It is important to draw attention to the fact that both socio-economically disadvantaged and advantaged people are under-represented in the jury empaneling process. Among...