On this episode, you've been summoned to learn about jury duty. Do the reasons some people want to avoid jury duty have merit? How do you even get on a list to get summoned to begin with? What should you expect with you get summoned to serve? And should you embrace this particular opportunity to participate in the democratic process? (Spoiler alert: We really think you should!)
Our guest is Sonali Chakravarti, professor of government at Wesleyan University and author of Radical Enfranchisement in the Jury Room and Public Life.
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Links:
Here's that survey about why Americans lie to get out of jury duty
Links related to the O.J. Simpson case:
A consultant helped select the jury that acquitted O.J. Simpson... - The Seattle Times
O.J.: Made In America (ESPN documentary)
Radio - The lasting impact of the O.J. Simpson trial (WBUR)
Transcript
Note: The following transcript was AI-generated and may contain errors
Nick Capodice: Hannah. We love civics. It's our job. It's what we do. It's at the core of our very being. And part of the core of the very being of civics itself is jury duty.
Hannah McCarthy: Yeah, I agree. I feel like it is one of the ultimate civic duties.
Nick Capodice: So in this episode we are hoping to help you, the listener, understand why you too should be fired up at the mere possibility of serving on a jury. And I'm not talking about the reason that Stanley from the Office wanted to do it.
Archival: I have been trying to get on jury duty every single year since I was 18 years old. To get to go sit in an air-conditioned room downtown judging people while my lunch was paid for. That is the life.
Nick Capodice: So, Hannah, when we played that clip for our guest, Professor Sonali Chakravarti-
Sonali Chakravarti: I'm professor of government at Wesleyan University.
Nick Capodice: You know what she did?
Hannah McCarthy: Did she roll her eyes about all the jury jokes. Give a lecture about how participating on a jury is a thing to be taken seriously?
Nick Capodice: No. Her first reaction was to crack a joke too. One that she says was quite popular after the OJ Simpson trial.
Sonali Chakravarti: Which is, I never want to be judged by 12 people who weren't smart enough to get out of jury duty.
Hannah McCarthy: Oh, wow. That's... That's rough. The thought that if you're not smart enough to get out of a jury, I don't want you on mine.
Nick Capodice: Absolutely. However, Professor Chakravarti even mentioning that- that that trial inspired jokes and lots of conversations about jury duty. There were reasons for that. In part because OJ Simpson was a huge celebrity. A former NFL player who'd become an actor and a TV commentator when he was accused of murdering his ex-wife, Nicole Brown Simpson and Ron Goldman in 1994.
Hannah McCarthy: Yeah, and I know details about the case were all over the news at the time. It spurred a national conversation about how racial bias could influence the trial. And there was widespread TV coverage. Millions of Americans watched an infamous car chase of O.J. Simpson shortly after the murders. It would be hard to find a group of people in the country, at the time, who did not already have an opinion about O.J. Simpson and whether or not he was guilty.
Archival: Good morning. I'm Bill Beutel. If you've been watching television over the past couple of hours, you've been watching the search for OJ Simpson. And that search ended tonight under the eye of the camera outside his own front door in Brentwood, that section of Los Angeles where he lives.
Nick Capodice: Now most trials don't have this issue of a potential jury pool, knowing so many details about the case ahead of time. But there is a big challenge, that some people would rather do anything than show up for jury duty.
Sonali Chakravarti: Growing up, I'd heard adults talk about how it's such a pain to have to go to jury duty. And how they would try to get out of it.
Nick Capodice: There are blogs, Hannah, there are videos and books dedicated to how to avoid jury duty. Here, I'm going to read you the back of one that I found online.
Hannah McCarthy: I'm not exactly thrilled to hear this.
Nick Capodice: Quote. "Most of us believe we really have better things to do with our time getting a root canal, watching paint dry, standing in line at the Department of Motor Vehicles."
Hannah McCarthy: I've got to say for the record, Nick, I do feel like we should get into whether or not the reasons people want to avoid jury duty have merit. But more important, what to expect when you do get summoned and why juries are so important to our civic life.
Nick Capodice: I agree. So, Hannah, let us don our court-appropriate attire and grab a vending machine snack because this is Civics 101. I'm Nick Capodice.
Hannah McCarthy: I'm Hannah Mccarthy.
Nick Capodice: And today we are going to talk about what happens when you're called for jury duty. Now, it's essential to note that there are various kinds of courts across the country, including federal, state, county and municipal courts, each with their own sets of regulations and specific processes for jurors. So this isn't an exhaustive look at all forms of jury duty. In this episode, we're going to focus on what jury duty is and the basics of what happens from the time you get that summons in the mail up to the start of the trial. You ready?
Hannah McCarthy: I'm ready.
Nick Capodice: 1 in 3 Americans will serve on jury service at least once during their lifetime. I've done it. Have you done it?
Hannah McCarthy: No. I wanted to do it. And then I moved and they revoked my... my summons.
Nick Capodice: I remember the day I got the summons in the mail and I freaked out. I was thrilled. I danced down the street that afternoon. So technically, a summons is a document that comes through the United States Postal Service that commands you to appear for jury service on a particular date and time and at a specific courthouse.
Hannah McCarthy: Do you remember anything in particular about your summons?
Nick Capodice: I don't remember even exactly what it said. I do remember there was this bolded part that said "failure to respond to the summons will subject you to a fine jail term or both."
Hannah McCarthy: Oh, yeah, I remember that in mine as well. That's some serious stuff.
Nick Capodice: Now, Professor Chakravarti has been summoned, but.
Sonali Chakravarti: I have not served on a jury. I have been called a few times, but I've never gotten to the stage where I'm actively being questioned to serve on the jury.
Nick Capodice: But her time and your time may come again. Hannah. Every year, around 1.5 million people are summoned to be prospective jurors to serve in about 150,000 trials.
Hannah McCarthy: I'm keeping my fingers crossed.
Nick Capodice: And as a little side note, Hannah, all these trials represent just a fraction of the actual cases handled by the legal system.
Sonali Chakravarti: A very small number of cases, both criminal and civil cases, go to jury.
Hannah McCarthy: What's the difference between a civil and a criminal case?
Nick Capodice: All right. A criminal case is where the government, like a state or the federal government is prosecuting one or more defendants for a crime, claiming they broke the law and should be punished for it. A civil case, on the other hand, is between two parties. It could be two people, two companies, organizations or a person and a group of people, versus an organization or a company. Examples of civil cases that might go to trial are divorces, lawsuits, cases involving contracts. The plaintiff in both kinds of cases is the party who says; "I have been wronged". In a criminal trial that would be the prosecution. In a civil trial, that might be the person who filed the lawsuit against the other person. The defendant is who the plaintiff says has wronged them. The person accused of a crime or whomever is being sued.
Hannah McCarthy: Okay. Got it. Now, getting back to criminal trials, since these are the ones that I think most people think of when they think of jury duty, how many criminal cases actually go to trial?
Sonali Chakravarti: Even before the pandemic, we saw the vast majority of cases in criminal court being settled by plea deals, which is when a defendant pleads guilty and is sentenced by a judge without having their case be heard by a jury. So only a tiny fraction of cases goes to jury.
Nick Capodice: And there are many reasons why plea deals are so common. And we're not going to get into all of those in this episode. But some of the big ones are that trials are costly and time consuming, and there's a level of uncertainty that comes with letting a jury decide the outcome of a case. But we need to note here that the proliferation of plea deals has come under scrutiny and for good reason. Prosecutors are incentivized to make deals to close cases. And deals can be coercive because they might put pressure on people to plead guilty to crimes they didn't commit. And Hannah, studies have revealed significant racial disparities in the plea bargaining process. But when there isn't a plea deal either because one isn't offered or because both sides can't agree on the terms, a case goes to trial.
Hannah McCarthy: Now, what I know, unfortunately not from personal experience, but from a lot of films and television viewing, is that a jury works like this, right? A group of people are chosen and sworn in to listen to evidence and then they deliberate. Meaning they go into a room and talk about the trial and what they've just heard. And they reach a verdict in the case. But there's more than one type of jury, right?
Nick Capodice: Yeah, there are two. The grand jury and the petite jury. The grand jury decides whether or not to bring indictments, meaning formal charges against potential defendants after hearing evidence presented by a prosecutor. The grand jury is not in charge of deciding whether someone is guilty or innocent. They just decide if there's probable cause to bring charges against someone. But for this episode, we're going to focus on the other type, the petite jury, more commonly known as the trial jury.
Hannah McCarthy: So a petite jury is the one we think of most commonly, right? This is the jury that determines whether someone is innocent or guilty.
Nick Capodice: Absolutely. Now, a trial jury has the job of reaching a verdict in a criminal or civil trial. Their role is to listen to the evidence presented in a case and decide an outcome based on the facts or witnesses presented by both sides. In a criminal trial for instance, the jury decides whether or not the defendant is guilty. And they make these decisions after sitting through a trial and then voting in a private process.
Hannah McCarthy: That is the deliberation part that we mentioned earlier, right?
Nick Capodice: Yes.
Archival: Ever since you walked into this room, you've been acting like a self-appointed public avenger.
Archival: Shut up. You're a sadist.
Archival: 12 men turned into 12 clawing animals.
Hannah McCarthy: Okay. I love this movie. That's 12 Angry Men, right? By the way, is that how many people typically serve on a jury?
Nick Capodice: Yeah. And I just got to say, that is a cinematic masterpiece directed by Sidney Lumet. But I'm going to digress too much on that. The number of people on a jury can vary depending on the jurisdiction, but it's generally between 6 and 12. When the trial is super complicated or it has high stakes like a death penalty trial the judge might pick alternate jurors to step in just in case one of the regular jurors gets dismissed.
Hannah McCarthy: Why would a juror be dismissed?
Nick Capodice: Well, during a trial, lots of things can happen. Jurors can get sick. They can have family emergencies or even be dismissed for not following the judge's instructions. And this actually happened recently in a very high profile case, Alex Murdaugh, the double murder trial- when Judge Clifton Newman removed a juror for talking about the case with other people.
Archival: First off, this morning, we have to deal with the issue involving the removal of a juror. A few days ago, I received a complaint from a member of the public indicating that a juror had engaged in improper conversations with parties not associated with the case.
Hannah McCarthy: Now, I know the jury system has been around for a long time, and not just in the United States, but where did the concept of being judged by one's peers come from?
Nick Capodice: The idea of legal cases being decided by a group of individuals has been around in different forms for millennia, Hannah. Ancient Egypt, Greece, Rome. They all had some version of a jury. For some historians, the Frankish inquest created by Louis the Pious, who was the son of Charlemagne, is regarded as the beginning of the modern jury system. At that time, it consisted of 12 quote "reliable men who were from the local area and were used to establish the king's rights." Later on, Magna Carta ensured that all subjects of the Crown would be judged by a jury.
Hannah McCarthy: And I know that in the US it was enshrined in the Bill of Rights.
Nick Capodice: Absolutely.
Sonali Chakravarti: Even though the founders were critical of many other parts of the political and legal system in England, the jury system was something that they really wanted to make sure that we had. It was important in during during colonial times, because the jury is a way for local people to decide whether someone should be punished for a law or not. And it is a true check on the power of the executive, whether that's the king or whether the governor. The Sixth and seventh Amendments of the US Constitution ensure that any defendant in a criminal or civil trial has a right to an impartial jury. And also have the right to a trial in the place where the crime or violation took place.
Nick Capodice: The Sixth Amendment guarantees the right to a quick and impartial trial, the right to know the charges against oneself, the right to cross-examine witnesses, the right to call one's own witnesses, and the right to legal representation.
Hannah McCarthy: Okay, and these rights are in place to guarantee, at least in theory, that everyone is treated equally when facing criminal charges. Correct? And to guarantee that the prosecution proves their case beyond a reasonable doubt.
Nick Capodice: Right. That's the Sixth Amendment. And if you're ever in a lawsuit for more than 20 bucks, the Seventh Amendment says you can demand a jury trial. Meaning people can have a group of their fellow citizenry decide on the outcome of a civil lawsuit instead of just leaving that decision to a judge.
Hannah McCarthy: Now, not so wild guess here, but just thinking about voting and property rights. Et cetera. When our Constitution was first framed, I'm assuming juries comprised white men who owned land?
Sonali Chakravarti: Although the right to serve on a jury is a part of enfranchisement and what it means to be a citizen, that that right has not been extended to all. From the early days of the American Republic it was largely, you know, landed men that were allowed to serve on juries.
Nick Capodice: And Hannah, this is an interesting bit of American etymology, have you ever heard of a blue ribbon jury?
Hannah McCarthy: I've heard of a blue ribbon chicken.
Sonali Chakravarti: That means a list of... Of men in the community that were thought to be upstanding citizens and capable of doing the work of... Of sitting on a jury. And they're the people that made up the list for... For those who could be selected.
Nick Capodice: And these white landed men wore actual blue ribbons. So everyone in the community knew who they were.
Hannah McCarthy: How long was this the status quo that it was all white male jurors deciding trial outcomes in American courts? When did things start to change?
Nick Capodice: Well, the landmark US Supreme Court case that deals with this was Strauder V, West Virginia, in 1880. It is a decision that ruled that excluding African Americans from jury service violates the equal protection clause of the 14th Amendment, which said that states must provide equal protection under the law to everyone regardless of race.
Hannah McCarthy: And who is Strauder?
Nick Capodice: William Strauder was a formerly enslaved Black man charged with murdering his wife, Anna. He was found guilty and sentenced to death by an all-white jury. And Strouders lawyer, argued that his right to an impartial jury, as guaranteed by the Sixth Amendment of the Constitution, had been violated. Because the state law of West Virginia excluded Black people from serving on juries. The Supreme Court agreed with Strauder and ruled, Yes, excluding Black people from juries was indeed a violation of the equal protection clause.
Hannah McCarthy: So after this decision, Black men were able to serve on juries?
Nick Capodice: Technically, yes. But despite this ruling, many states continued to exclude people of color from juries. There were systems that created all-white jury pools. There were unfair selection procedures. It was not until the civil rights movement of the 1950s and 60s that significant progress was made in ensuring that people of color could serve on juries.
Hannah McCarthy: Okay. And when did women get the right to serve on juries?
Nick Capodice: So remember that the Sixth Amendment in the US Constitution says that people have the right to a fair and impartial jury. Well, in the past, the legal system only let men serve on juries because women weren't considered full citizens and therefore couldn't vote or participate in aspects of civic life. The Civil Rights Act of 1957 gave women the right to serve on federal juries. But believe it or not, Hannah, it was not until 1973 that all 50 states had laws allowing women on juries. And even after that, there were still some court battles over the issue.
Hannah McCarthy: Unfortunately, I do believe it. I mean, women couldn't have their own credit cards until 1974.
Nick Capodice: Yeah. And even though today it's unconstitutional to prevent someone from serving on a jury because of their gender or their race, there is still bigotry baked into the system.
Sonali Chakravarti: And, you know, we are still grappling with the lack of racial representation on juries today. It is one of the biggest problems facing our jury system. The Black Lives Matter protests in 2020 has spurred a deep engagement with the fact that Black jurors are not seated at the same rate as white jurors in... In this country.
Hannah McCarthy: Even though, of course, an all white jury is not representative of a cross-section of the community. Right. It's not reflecting the diversity of our population. In other words, it's not a jury of one's peers.
Nick Capodice: We'll get to how the juror selection process itself plays into this. But there are other factors that also result in jury pools, not necessarily representing the community at large.
Hannah McCarthy: What kind of factors?
Nick Capodice: Well, let's look at how a jury pool comes about. The exact process varies from jurisdiction to jurisdiction, but the general idea is to create a list of eligible citizens who can serve on a jury. The names are then randomly selected from this list to form a jury pool, or a group of people that will eventually get whittled down to 12 or so for a particular case. The lists from which jury pools are typically created use a variety of sources of data to collect names and addresses of citizens, including voter rolls, driver's license records and other government databases.
Sonali Chakravarti: And while this is a good way to get one group of people in society, it doesn't capture people whose address moves frequently. It doesn't capture people who haven't registered to vote, but who are citizens. And so a better way to do it and this is something that actually Massachusetts does, is it uses residency lists. So lists compiled by municipalities of the people who actually live on, you know, in the area in a given year. And so you get renters, you get other people who might not be captured with motor voter lists.
Nick Capodice: Broadening the criteria for lists can also prevent the same people from getting called for jury duty over and over again.
Hannah McCarthy: Are there other criteria for being on a jury? Are there strict eligibility requirements?
Nick Capodice: Again, it varies with jurisdiction. But to serve in most states, you must be a citizen of the United States, at least 18 years old, live in the area where the trial is taking place and understand enough English to hear and then discuss the case. And in terms of what you can't be, you cannot be a convicted felon unless your rights have been restored or under indictment for a felony. Again, the rules vary depending on where you live. The list can be longer than that.
Hannah McCarthy: I see. So what happens if I'm eligible? I'm on one of those big lists of potential jurors in my community and then I do get summoned.
Nick Capodice: We're going to talk about that after this brief recess. But first, if you're someone who thrills to the idea of getting a jury duty summons in the mail, you might be the kind of person who would enjoy our newsletter. It's called Extra Credit. It's free. Comes out every two weeks. It's full of fun facts and ephemera, and you can get it on our website, civics101podcast.org. We're back. You're listening to Civics 101 and today we are talking about jury duty. What happens when you get summoned? Why some people worry about being called to serve and why being on a jury is so important.
Hannah McCarthy: Now, earlier, we were talking about how your name might appear on a jury roll in the first place. What happens after you get a summons?
Nick Capodice: Well, Professor Chakravarti says it will tell you which court you're being summoned to.
Sonali Chakravarti: And it will ask you to appear in court on a certain date. If you can't make that date, if you're traveling, if you're out of town, if you're taking care of infants, you know, you can call a number to get a postponement, which is you won't have to go on that date, but six months from now, you'll get another summons.
Nick Capodice: Whatever you do, gentle listener, whatever you do, don't ignore that summons. Not showing up for jury service can result in a fine which is typically imposed by the court. Sometimes a failure to appear for jury service can also result in jail time. It is really important to understand the specific laws and regulations in your jurisdiction if you have been summoned for jury service.
Hannah McCarthy: Now, being fined and potentially going to jail sounds like a pretty strong incentive for showing up for jury service. Are there any other incentives? Do you get paid for serving on a jury?
Sonali Chakravarti: So the jury summons that you receive in the mail will tell you about some of the ways the jurors are compensated. So oftentimes you won't have to pay for parking, you know, at the courthouse that you're going to lunch will be provided if you were selected for a case. And in... In many instances, jurors are compensated for their time if they are not being paid their regular salary. So there will be a question, "If you have to take time off from work, will you still get paid?" And if you say no, the court will give you a per diem amount, maybe somewhere from like, you know, 30 to $50 depending on the state and depending on whether it's a state court or a federal court- to compensate you for your time.
Hannah McCarthy: Wait, did she say 30 to $50 for a whole day? I mean, that is not enough money to make up for maybe missing a whole day of work.
Sonali Chakravarti: This is really a token amount. And many scholars have argued that the low rates of compensation for jurors is a real disincentive to get socioeconomically diverse juries. And that if there's one way we want to make sure that... That people who need to, you know, earn money, you know, during the week to survive can serve on juries one of the key things we can do to reform the system is to give better compensation.
Hannah McCarthy: Besides only earning $30 or $50 a day instead of your regular paycheck. I can imagine so many other ways doing jury duty would be very difficult for people. I mean, someone with kids or parents who need care, they need to arrange for that, maybe even pay for that. It really does seem like there are a few ways jury service could be a big financial burden.
Nick Capodice: Absolutely. There's this 2021 survey from bar Prep hero of people who admitted to actually lying to avoid jury duty. It revealed that almost half of those people did so because they were worried about the financial impact and 15% cited issues with finding child care.
Hannah McCarthy: What if there's a legitimate reason that you can't show up for jury duty like a health issue? What if you have a condition where you can't, for example, sit in a courtroom for hours?
Nick Capodice: Yeah, Health problems are absolutely a valid reason people are excused or allowed a postponement. Bottom line is, courts do understand that you might have a good reason for asking, but ultimately it's up to the judge to decide if a person's excuse is legitimate. And even then they may require documentation like a doctor's note.
Hannah McCarthy: We just talked about worries around financial hardships like missing out on paychecks. But what about job security? Can you get in trouble for missing work to serve on a jury? Can you get fired?
Nick Capodice: Yeah, That is another common reason. People say they don't want to get that summons. But most states prohibit an employer from firing or even threatening to fire an employee who's been called for jury duty. But the laws vary from state to state around paid and unpaid leave or use of different kinds of time off. And some states even have laws that say your employer has to pay you for the time. So, listener, you should check your state's rules.
Sonali Chakravarti: Legislators have understood that seating good representative juries is a cornerstone of our legal system and that if people don't serve on juries, the system will collapse. Employers are told to support their employees that have been summoned for jury duty and to not penalize them in any way.
Hannah McCarthy: All right, So I've gotten my summons in the mail. I've told my job that I need time off to go to court for jury duty. Am I automatically going to be picked for a trial?
Nick Capodice: Well, there are a few hoops you've got to jump through first. In some jurisdictions, there is an early round of questions that you'll be asked even before you show up.
Sonali Chakravarti: For some cases, before the date that you were supposed to show up, you will receive a questionnaire in the mail. And this questionnaire will determine whether you have any prior knowledge of the case, whether, you know, either the defendant, the witnesses or even lawyers connected to the case.
Nick Capodice: This questionnaire is just the first step to determine whether you are qualified or not to serve as a juror on the case, because it wouldn't be a fair trial if someone was accused of murder and say, the victim's cousin was serving on the jury.
Hannah McCarthy: Oh, right. Connections. Okay. So, for example, if a juror knew one of the detectives in the case or, you know, they're married to the defense attorney.
Nick Capodice: Exactly. There are exceptions, though. Like in very small jurisdictions where conflicts like this are common and attorneys on both sides make exceptions for certain jurors. Other common questions include personal experiences such as prior interactions with law enforcement or the legal system, or any previous experiences with the subject matter involved in the case. In some instances, even being the victim of a crime might be reason enough to disqualify you from the pool.
Sonali Chakravarti: It will also query your perceptions and beliefs about a range of things connected to the case. Including your perceptions of the police, including how you think about certain types of crimes.
Nick Capodice: You may get asked about views on the death penalty, gun control, the role of law enforcement.
Sonali Chakravarti: It will also ask you about, you know, where you get your news from and your information. So questionnaires are really important way that attorneys get information about prospective jurors before they arrive at the courtroom.
Nick Capodice: So, in many instances, a juror will fill out a questionnaire in advance of their day of potential service. After that, if they are asked to come into court and they're selected from a pool of jurors to continue on, they will get to what's known as voir dire. Voir dire is French for "to speak the truth". This is an in-person questioning by the judge and sometimes the lawyers in the case. It's all at the judge's discretion.
Sonali Chakravarti: During voir dire, a prospective juror is sworn in before a judge, and you're asked to answer all questions truthfully and in a forthcoming manner. And the judge will ask you about some of the questions, you might have already answered in the questionnaire, but it's important for the judge to hear in your own words and your own voice, what you know about the case, and whether you think you can be impartial in the case. The voir dire process is also a chance for the judge to tell you what's expected of you as a juror. You know what your responsibilities are. The fact that the jury is supposed to be a jury of peers for the defendant. The role of the of the jury is to make sure that there isn't a miscarriage of justice that happens and that... That an innocent person is put away for a crime that he or she doesn't commit. And we have a lot of things built into our adversarial system to protect defendants. And jurors should know about these things.
Hannah McCarthy: I know that jurors can be struck at this point by lawyers on either side of a case. How does that work?
Nick Capodice: Yeah, well, jurors can be struck for cause, which means they can be kicked out of the jury pool for specific reasons. Like if they've said something that makes it seem as though they already have an opinion about the guilt or innocence of a defendant. Attorneys on both sides are also given a certain number of what are called peremptory strikes.
Sonali Chakravarti: Which are strikes that they are allowed to use on any juror. And they don't need to give a reason for why they are dismissing that person from the jury pool. And this is based on the pool of people who've been... Been deemed qualified by the judge. So you have a group of people who are qualified. Both sides get to pick off people that they think would not be favorable to their case. And you know that I think, you know, lawyers from both the prosecution and the defense think that this is a very important tool that both sides have, because oftentimes you can't quite put your finger on it, but you feel like, you know, a potential juror might not be that good for your case, then you would rather them not be there. And you're trying to be a good advocate for your side.
Nick Capodice: But peremptory strikes have frequently been used as a loophole for prosecutors to get jury makeups favorable to their side of the case. And, too commonly, to specifically block people of color from serving on juries.
Sonali Chakravarti: In many cases, peremptory strikes are used to remove Black jurors from the pool. And if the attorney doesn't have to give a reason, there isn't an easy way to check or stop this process. States right now are experimenting with different ways of allowing both sides to retain their... Their use of peremptory strikes. But trying to close up the loophole, being able to use the strike to remove jurors of color.
Hannah McCarthy: Now, how do prosecutors get away with this? It cannot be constitutional to use a peremptory strike to remove a juror simply because they are the same race as the defendant.
Nick Capodice: There is a critical Supreme Court case called Batson v Kentucky that addresses this very issue.
Sonali Chakravarti: Batson v Kentucky set up a procedure for challenging peremptory strikes. And that procedure requires the attorney who exercised the peremptory strike to say what the reason was, that they chose to dismiss that juror. And as long as it is a plausible, non-racially specific reason, the judge is inclined to believe it. So the attorney will not say, "I, you know, dismiss them because they were Black." They'll more likely say something like, "the potential jurors body language suggested that they wouldn't be able to, you know, follow the rules of the court" or "the potential jurors. You know, brother used to work at a place that was connected to one of the witnesses", like a very tangential reason that- that actually- because if you actually have a conflict of interest in a case, if you know the defendant or know the defendant's wife or mother or the judge will say like, you know, you can't be impartial in this case. So when an attorney gives a really flimsy excuse for why they dismiss someone, you know, people from the outside might say that really doesn't seem true. But judges are inclined to believe attorneys, right. They want to give attorneys latitude in this process. They know that both sides have strikes. So I think there's also judges who think like, "okay, yes, you know, racial considerations might have played a role in the strike. But like, you know, the other side also has strikes to play and they can use it however they want."
Nick Capodice: Batson challenges are notoriously difficult to win.
Sonali Chakravarti: In some states there has never been a successful Batson challenge. And so that's why this... This system for asking attorneys to give their reasons for why they're dismissing a juror and then a judge deciding whether those reasons are, you know, are appropriate or not, doesn't seem to be working. And so states are looking for other ways to decide how.... How we should allow attorneys to use peremptory strikes, but not allow them to use them such that Black jurors are removed from the pool at a very high rate.
Hannah McCarthy: So let's say that I am a potential juror. I have made it past voir dire. I haven't been struck for cause or peremptory strike, and now I'm on the jury.
Sonali Chakravarti: So before a trial begins, the judge will instruct the jury as to what the rules are of serving as a juror. And this could be everything from "you're not supposed to be on social media talking about the case. You're not supposed to bring up the case with anybody else. You're not supposed to do your own research on the case. You're not supposed to kind of go to the scene of the crime after hours and, you know, kind of do detective work there."
Hannah McCarthy: You know, Nick, I think a lot of what's informed my understanding of jury duty is what I've seen on TV and in movies. Right? And like a lot of things related to the criminal justice system, pop culture probably is not representative of reality. Like, one of the things I've seen is this thing called jury sequestration. When a jury is sworn in and then basically isolated from the outside world for days or weeks, does that really happen?
Nick Capodice: Well, let's talk about that. As you said, Hannah. Sequestration is when a jury isn't allowed to see or talk to pretty much anybody else other than their fellow jurors during the course of a trial. It's usually designed to prevent the jury from being influenced by media coverage or family members or other outside forces around the case. And to be clear, jury sequestration is incredibly rare.
Hannah McCarthy: Oh, yeah. And this actually happened during the O.J. Simpson trial, didn't it? Which we talked about at the beginning of the episode.
Sonali Chakravarti: That case also just stands out as a case that has had the longest sequestration of a jury.
Archival: 266 days ,That is how long the jury was sequestered. Buried every day beneath the details of the trial, locked every night on the fifth floor of this hotel, five blocks from the courthouse.
Nick Capodice: So, again, this kind of sequestration, or any sequestration, is very rare. But it's important to note that the O.J. Simpson trial, which took place from November of 1994 to October of 1995, was one of the most racially divisive trials in the nation's history. It was also televised. The coverage was wall to wall, and a lot of it was sensational.
Archival: La Casa de O.J. Simpson, they have come from across the globe. Bringing their satellite trucks, pulling miles of cable, setting up housekeeping.
Nick Capodice: And and a lot of the focus of all that coverage was on the jury and how they would come down on the case. Here's Professor Chakravarti again.
Sonali Chakravarti: I was also in high school when the trial of O.J. Simpson happened. I remember waiting for the verdict to come out. And.. And ...the ...the sense of racial polarization around ...around what the verdict would be and what it would mean. So I think from that moment, from the O.J. Simpson case, I learned that juries are really important and they tell us things about what's happening in our democracy and in political life that we might be ignoring elsewhere. But when a jury makes a decision like we have to listen because a very important thing has happened.
Nick Capodice: Professor Chakravarti says a recent example of this is when former Minneapolis police officer Derek Chauvin went on trial for the murder of George Floyd.
Archival: Members of the jury, I will now read the verdicts as they will appear in the permanent records of the Fourth Judicial District.
Archival: A jury found Derek Chauvin guilty on three charges unintentional second degree murder, third degree murder and second degree manslaughter.
Archival: Derek Chauvin has been found guilty.
Sonali Chakravarti: Juries have played a really important role in American history. That, I think of juries as like the last chance to do the right thing in a legal system that might be on the wrong path. And what I mean by that is that oftentimes, you know, politics prompts law enforcement to be particularly punitive with certain crimes or certain people. And the jury is a chance for, you know, a group of ordinary people to say, "no, we don't want that to happen." An important moment where juries said, "no, we are not going to do this" was with the Fugitive Slave Act of 1850. There were juries in the north at that time that were expected to punish people who assisted slaves in escaping slavery in the south. And these people who were assisting slaves were... Were brought in front of a jury. And they had technically, you know, a manner of speaking broken the law. But there were, you know, a series of juries that said "we don't want to punish this person for this. And it... Just because it is the law of the land right now doesn't mean we think it is the moral right thing to do." And this power of a jury to always offer a not guilty verdict if they don't want to punish the defendant is a very important part of the responsibility of jurors and I think also captures the incredible role that they play in the legal system.
Hannah McCarthy: So that's it. I've gotten my summons, maybe filled out a questionnaire, showed up at court, gotten sworn in and made it through voir dire without getting struck. And I have gotten a lecture from the judge on how to serve as a juror in this case. I'm ready for opening arguments, ready to get under the hood of the judicial system.
Nick Capodice: And not only that, Hannah, you are tasked with protecting the constitutional rights of the defendant. It is a huge responsibility, but it's a worthwhile use of your time. You and a group of your peers are about to hear the facts and arguments that will inform a verdict that could change a person's life.
Sonali Chakravarti: Jury duty is the place where democracy puts its greatest faith in citizens. Like nowhere else in our legal and political process, do ordinary people have the chance to make the final decision on something that really matters. Jury duty is where the rubber meets the road for democracy. It's also a place where we can see whether our training to be citizens really works. Can we do the work of making hard judgments about how the state should treat people who have broken the law?
Nick Capodice: That is how juries work today on Civics 101. This episode is produced by Jacqui Fulton and edited by executive producer Rebecca Lavoie, with help from Hannah McCarthy, me, Nick Capodice and our senior producer Christina Phillips. Special thanks to Felix Poon.
Hannah McCarthy: Music in this episode by Blue Dot Sessions. Nendo. Daniel Birch. Diamond Ortiz Knoy. Sean Frierson. Spring Gang, Peerless Young Carte's Submarine, Rachel K Collier and Bio Unit.
Nick Capodice: And if you want to see that survey about why people actually lie about jury duty. And for much more on the OJ Simpson trial and there is a lot more we did not have time to talk about in this episode. Visit our website, civics101podcast.org or subscribe to our newsletter, Extra Credit. We put all kinds of things in there that don't make it into our show.
Hannah McCarthy: Civics 101 is a production of NPR, New Hampshire Public Radio.