60 Pages Posted: 25 Jul 2022 Last revised: 29 Jul 2022
Date Written: July 20, 2022
High profile jury trials have catapulted concerns about jury fairness to the center of public consciousness. Despite the jury’s sound performance in most cases, we can do better. What enables fair juries starts long before the public hears the jury’s verdict. The critical phases that are essential to seating fair juries and decisions on what the jury will see and hear during the trial are often hidden from view. This Article comprehensively analyzes each of these phases and finds deficiencies that can undermine the promise of a fair jury. The first vital phase is obtaining a representative pool of prospective jurors, a group of individuals from which the trial jury will be drawn. Many jurisdictions fall short in meeting that necessary first goal, handicapping the ability of subsequent steps to assemble a fair jury. The second key phase involves selecting individuals from the pool of qualified individuals to serve as members of the trial jury. However, racism and other implicit and explicit biases combined with insufficient procedural protections may taint this part of the jury selection process. The third phase is the trial itself, where judges are often challenged to support appropriate fact-finding, provide clear legal guidance, and manage potential biases that can undermine fairness. This Article proposes a set of critically important reforms that will strengthen jury selection and trial procedures in each of these phases, optimizing fair juries now and into the future.
Keywords: anti-bias instructions; Batson, implicit biases, jury, jury instructions; jury selection, jury service; jury venire; peremptory challenges; racism; representativeness
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