72 Pages Posted: 7 Jan 2015 Last revised: 18 Apr 2016
Date Written: March 13, 2015
This article addresses the disruptive impact of big data technologies on jury selection.
Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants.
Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked.
Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.
Keywords: jury, jury selection, Batson, big data, technology, criminal procedure, courts, jury yield, jury venire, juror
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By Orin Kerr