It’s almost built into the idea: when you hear that someone got called in for jury service, the very next sentence is about them trying to get out of it. Making up lies. Acting crazy. Pretending they have a huge bias that makes it impossible for them to render a fair verdict. Whether in a civil trial or criminal, it’s a great sitcom trope (Liz Lemon has the best outfits, when the spies/detectives/thieves have to solve the case themselves when one is in the jury room is a close second). Except that jury duty is more than just an inconvenience, it’s one of the easiest ways for Americans to be involved in government, and one of the most important. So when we talk about it, we need to remember that. We have a tool to help.
But I hate jury service.
Have you ever actually served on a jury? Only about 27 percent of U.S. adults say they have served on a jury in their lives – and the National Center for State Courts estimates that about 32 million people are summoned for jury service in any given year, but only 1.5 million serve. And with federal courts the numbers are even smaller: only 64,000 people serve on federal juries each year. Which means that most people will never even have the opportunity to serve on a jury.
No. Yes. Maybe. It doesn’t matter.
On the contrary, it really does. Jury service is one of the most important civic duties any person can perform. It is when judges come together with juries of our peers that we know that our communities rights and liberties are being protected in the interests of justice. They may not always come to the right decisions, but it is the fairest system anyone has ever come up with to create civilization. And it’s so important that we put it in the Bill of Rights. Twice.
Andrew de Tocqueville pointed out that jury service actually helps the citizens serving on the jury as well by educating them about the law and legal system. He said that jury service “rubs off that private selfishness which is the rust of society.”
And the Supreme Court said: “Community participation in the administration of the criminal law…is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system.”
We’ve started in the wrong place. What is jury service?
First of all, there are two kinds of jury service. There is the grand jury, familiar to those of us who have watched Law and Order, and the petit, or trial, jury, also familiar to those of us who have watched Law and Order.
Grand juries are called, sometimes by prosecutors or a state’s attorney, to determine whether there is probable cause to believe a person has committed a crime. The grand juries are usually bigger and may make determinations on a larger number of cases.
Trial juries are smaller, usually 12 people, but sometimes smaller, depending on state rules, and they listen through a trial to determine whether a person is guilty or not guilty, in a criminal case, or in favor of the plaintiff or the defendant in a civil case.
And how does it work?
Most of the time, you get a jury summons in the mail, telling you the date and time you should report to the courthouse. If you are unavailable that day (as in, you are out of the country, in college out of state, etc.), just call the number on the form and usually the clerk will tell you not to worry about it. And you go back into the pool or you get another date to report after you return.
If you do get called in, you are processed by the clerk, fill out a questionnaire, and are assigned to one, or more, potential panels. A group of about 60 people will go into the courtroom in an order and attorneys will ask them questions, called voir dire, to determine whether they want them on the jury. They can use a limited number of what are called peremptory challenges to remove jurors that they don’t think will be favorable to their side. Jurors can at this time explain that they are unavailable to serve on a long trial, or that they have a personal conflict or bias that would make them unable to make a fair verdict.
And then, you are either chosen to be on the jury, or you aren’t. If you are not chosen, you may be eligible for another panel, or you may be sent home. If you are chosen to serve, you serve for the entire trial until the verdict (unless the parties settle or reach a plea agreement). And you get paid for your service ($40/day for a federal court) regardless of whether you are chosen for a jury or not.
Who can serve on juries?
For state courts, the rules vary, but it’s usually U.S. citizens who are residents of the state who are over 18 years old. Sometimes it is restricted to people who are registered to vote or who have driver’s licenses, but mostly, adults who are members of the community can be called to serve.
For federal courts, it’s both easier and more complicated. You have to be a U.S. citizen who is 18 years and older, who resides in the jurisdiction where the jury is being convened, not be a convicted felon (with some exemptions), and be adequately proficient in English to complete the juror qualification form.
And it’s one of the only places in our community where we all come together as equals, regardless of class, income, race, gender or fame. David Letterman, Senator Claire McCaskill, Madonna, Tom Hanks, and Mayor Rudy Guiliani have been called to serve – and Senator McCaskill really enjoyed her service.
But could everyone always serve on juries?
Of course not. In the beginning of our country, jury service, like voting rights, were limited to property-owning white men.Women and people of color were forbidden to serve on juries. People had a lot of reasons for why women were
Women and people of color were forbidden to serve on juries. People had a lot of reasons for why women were unfit to serve: “Aside from the “defect of sex,” women were excluded from juries for a variety of reasons: their primary obligation was to their families and children; they should be shielded from hearing the details of criminal cases, particularly those involving sex offenses; they would be too sympathetic to persons accused of crimes; and keeping male and female jurors together during long trials could be injurious to women.”
While Utah was the first state to allow women to serve on juries in 1898, as of 1961, the Supreme Court of the United States unanimously upheld a Florida law exempting women from jury service. It was not until the mid-1970s that women had the right to serve as full members of their communities on juries.
Before the Civil War, African Americans were excluded from jury service, but they have fought for their right to serve on a jury, and to be tried by a jury of their peers from their community, which includes people of color. In the first major test, the Supreme Court held in 1880 that it was unconstitutional under the 14th Amendment for the government to purposely prohibit individuals from serving on juries on the basis of race. But that didn’t stop it from happening, the work of keeping black people from serving on juries by using peremptory challenges to remove black jurors. In 1965, the Supreme held in Swain v. Alabama that prosecutors could not remove blacks from a jury for discriminatory reasons. Realizing that this standard was too high, they returned to the issue in 1986 in Batson v. Kentucky that it was unconstitutional to remove black jurors from the trial on the basis of their race. While this didn’t solve the problem entirely, and we are still fighting discrmination in our jury compositions, it was incredibly important.
So why is jury service so important?
Two intertwined reasons: history and justice.
Our jury system is based on the medieval English system (where the jury was expected to come to the court with all the information), but the system as we know it came to be under the Magna Carta, when in 1215, King John signed the document that said: “No freemen shall be taken or imprisoned… except by the lawful judgment of his peers or by the law of the land.”
English colonists brought the right to a jury trial to America to prevent oppression and create freedom. Under the British Navigation Acts, the British tried to prevent American colonists from using their right to a trial by jury because they did not like the outcomes of those juries. They even complained about the loss of “the benefits of trial by jury” in the Declaration of Independence.
So we placed the right to a trial by a jury of our peers in our U.S. Constitution in Amendments VI and VII.
- Amendment VI: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
- Amendment VII: In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law
But all of this was done for a reason: juries are not about community representation – they are our community conscience. “Community morals and judgments provide both the legitimacy for a jury verdict and a check on government power. The right to a criminal jury trial is a right to a local jury.”
Jury trials are how we guarantee our freedom from tyranny. It stops our government from having absolute power over its people: we give the power to make the final decision to a jury of the people. They educate people about the justice system. They let citizens participate in the process of governing, even more directly than by voting. And they help us to trust in the justice system when we, ourselves, need to use it for our own disputes. And they help
But is jury service perfect?
Of course not. We don’t pay our jurors enough. We could provide child care services or offer co-working space for people to be able to use their down time, especially on days when they are being screened for panels. We’re not doing a good job of getting people to show up when they are summoned.
But people are doing things now to revolutionize the process. They are rethinking jury pay and reimbursement. They are looking at ways to stop people from being called for cases that are settled on the courthouse stairs. And people are thinking bigger: the California Assembly has passed legislation that would make non-citizens eligible for jury service.
Ok, I’m convinced to talk about jury duty differently. Tell me how.
First of all, please stop calling it jury duty. Duties are things we do because we have to. But jury service. Jury service we do because it is our right as citizens and because of all the extraordinary benefits it offers to our community. It’s how we serve to create and protect our civil society.
Well, we have an amazing tool to help you – and you should read it in full. But, in short:
- Make it about deeply held and widely shared values. Ok, not everyone wants to hassle with the oftentimes messy process of dealing with crime, but we DO want to live in communities and in a nation where there is justice, safety, and peace and where our government works on behalf of the common good. These deeply held values can help people to see the bigger reason why serving on a jury matters.
- Explain briefly how it works. Let’s face it; most people have watched too much Law and Order. Most of the time, being a juror is more about giving our attention, a little bit of our time and making fair decisions than it is about high drama. And it rarely takes weeks or months or involves bribes.
- Connect the dots to the effects on all of us. Left to their own devices, most people will think that jury service only affects other people and not themselves. But we know that making our systems of criminal and civil justice work affects all of us.
- Spark a sense of civic agency and a desire to make democracy work. Democracy doesn’t work if we just show up and vote occasionally and ignore it the other 364 days a year. We all have to do at least a little bit more than that and Jury duty can be that thing sometimes. Using jury service as an example of how to plug into the processes of democracy can help people see that involvement in other ways also matters. We can help instill a sense that this is one way to make democracy work better for all of us.
- Use it as an example of the power of working together. Jury service is a real life example of what happens when people come together and act on a common purpose. We can tap into these micro-stories of democracy working by people serving on juries to help people see that we can also come together, through our government, to get big, important things done.
Good, right? But you really should read the whole tool. It has examples. And more explanations. You may find jokes. You never know.
So download the tool now. And let’s do what we can do to make conversations about our parks – the ones down the street where our kids played and the ones across the country that we dream about camping and exploring in – more productive.