Reimagining the Inclusive Jury

Abstract

At the height of the COVID-19 pandemic, everyday life for many Americans was upended. And yet, the jury trial remained viable — even vital. Faced with an era-defining public health disaster, courts innovated, embracing novel technologies and techniques to reimagine where and how justice might be made. But why did it take a pandemic to spur this kind of institutional creativity? Prior to the outbreak of COVID-19, people who were otherwise eligible to participate as jurors were routinely — and uncontroversially — struck or exempted from service due to limited mobility, vision and hearing loss, and caregiving responsibilities. Recent experience with hybrid and fully-remote trial formats shows that it is possible to include more of these prospective jurors in our jury system. Further, the drawbacks to using such innovations to accommodate individual jurors on a case-by-case basis are essentially nonexistent: successful hybrid and fully-remote proceedings deployed widely available digital technologies to offer effective, low-cost tools for jury trials in circumstances where some (or all) jurors could not be present physically.

This Article argues that some of the extraordinary trial modifications that emerged as a result of the pandemic should not disappear with decreasing infection numbers. Rather, we should embrace the momentum of the past few years and ask how new technologies and techniques might be used to eliminate entrenched forms of juror exclusion and discrimination. Toward that end, this Article does four things. First, it examines the state of disability and caregiving-based exclusion in the United States, highlighting the shortcomings of both current protections and accommodations. Second, it reviews modifications to jury trials made during the pandemic, discussing five key innovations that made these trials successful: distributed participation, virtual private spaces, equipment provision, phasing, and livestreaming. Third, it shows how the incorporation of one or more of these innovations into post-pandemic trials would significantly lower extant barriers to jury service. Finally, it addresses potential concerns about modifying the jury trial — both constitutional and logistical — and reflects on the forms of exclusion that would remain even in the wake of creating a more inclusive trial.

Keywords: Juries, disability, remote trials, hybrid trials, antidiscrimination, judicial discretion, pandemic, remote trial, federal courts, state courts, criminal law, evidence, civil procedure, voir dire, democracy, pandemic, health law, public health, technology, law and technology, legal decision-making