August Newsletter of the Civil Jury Project

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Civil Jury Project

Volume: 6 | Issue 8

August - 2021

Opening Statement

What a Difference a Day Makes

-1959 Grammy Award Winner by Dinah Washington

Dear Colleagues,

What a difference a year makes was our purpose in resurveying our Judicial Advisors. Our Research Fellow, Michael Pressman, outlines the changes between the survey we conducted nearly a year ago and last month's survey. We did add one new question about what remote proceedings might be kept even after the pandemic. Our Administrative Assistant, Kaitlin Villanueva, prepared the comparison charts.

We found the results encouraging. We hope that the surge in Delta variant cases does not reverse the trends we are seeing with courts reopening. We wish all of you our very best as we emerge from this pandemic.

Here are our goals for this year and I plan on keeping these up front in each introduction just in case something comes to mind in your world that can assist us. The goals are:

1. We want to continue to be of assistance to court systems and individual judges as they navigate the restart of jury trials. In our November newsletter we outlined our work with the state of Illinois in crafting protocols for remote jury selection which were adopted by the Illinois Supreme Court. If your court system would like our assistance, we are ready, willing and able to work with you.

2. If you wish to contribute any article or resource to the Project, we are pleased to announce that the NYU School of Law will continue our website as a resource for years to come. In addition to all of our remote jury trial resources we have a wealth of information on our innovations for improving the jury system. If you wish to be a part of that, now would be the time to submit your work.

3. We all want to get back into our courtrooms. However, remote jury selection may be one aspect of the pandemic that may offer benefits post-pandemic. Selecting a jury remotely may save transportation costs, save time and help cut down the carbon footprint of the court system. Moreover, there is anecdotal evidence that remote selection results in a greater representative cross-section of the community.

Some court systems record demographic data, and some do not. If your court does keep demographic statistics and is currently doing remote jury selection, we would welcome the opportunity to assemble those statistics to see if remote jury selection is having an impact for the better in achieving a more inclusive and representative cross-section of the community.

4. Finally, if you have any thoughts or ideas of funding opportunities that we could explore to continue our work past August of this year, please send them to us.

If you would like to be involved in any of our goals listed above please feel free to email me directly at [email protected].

Sincerely,

Hon. Mark A. Drummond (ret.),

Executive/Judicial Director

Upcoming Events

Due to the ongoing COVID-19 pandemic, all in-person events are canceled.

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Results from Our Second Survey of Judicial Advisors

Regarding Juror Demographics

By Michael Pressman

Back in June 2020, the NCSC (National Center for State Courts) asked 1000 people whether they would prefer serving as a juror (1) in-person, (2) remotely, or (3) had no preference either way. We reported on this survey in our July 2020 newsletter (found here). The responses to the NCSC poll showed some clear differences in demographics for those likely to report for an in-person jury trial. The survey found that gender (fewer females), age (younger), and race (fewer minorities) were the most relevant variables. (The NCSC survey analysis can be found here.) Then, in August 2020, we sent a survey to our Judicial Advisors that contained a variety of questions about what they had been observing in their courtrooms regarding juror demographics during the first six months of the pandemic. We wanted to get a sense of what was happening in the courts that had started jury trials with regard to these demographics. In response to our August 2020 survey, we received 83 responses--which we reported on in our September 2020 newsletter (found here).

This past month, with almost a full year having passed since we sent out the August 2020 survey, we decided to send out the survey again--to see if and how things have changed over the past year. We received 73 responses to this past month's survey, and we extend our sincere thanks to everyone who took the time to respond (as well as to everyone who took the time to respond to our August 2020 survey). This piece provides the results from our July 2021 survey and, other than for the "additional comments" question, this piece also provides the responses that we received to these same questions in our August 2020 survey. With the responses to both surveys side by side, we can thus compare the responses to the two surveys and identify any changes. In many cases, we also provide a pie chart or bar chart to help illustrate the results from the two surveys--and to help illustrate how the results compare to each other.

* * *

Before providing the full results, however, we first mention the main takeaways:

· The main takeaway is that while only 20.5% of those responding to the previous survey had started in-person trials, 88.9% of those responding to the current survey have started in-person trials (with most of those who haven't yet started in-person trials planning to do so in the coming three months).

· While, according to the previous survey, 44.4% of those who had resumed trials had noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic), according to the current survey, only 25.0% of those who have resumed trials have noticed a difference in these demographics (as compared to before the pandemic). It is encouraging that 75.0% of those responding to our current survey are not noticing any change in jury demographics (as compared to before the pandemic).

· According to responses to both surveys, of those who had/have resumed trials and noticed a difference in demographics (as compared to before the pandemic), the main demographic difference reported was that potential jurors were/are now younger than before the pandemic. Also of note is that (1) in the prior survey, responses showed that, of those who had resumed trials and noticed a difference in demographics, there were more responses reporting that there were fewer potential jurors that were minorities (as compared to before the pandemic) than there were responses that reported there being more potential jurors that were minorities (as compared to before the pandemic), but (2) in the current survey, among those who have resumed trials and noticed a difference in demographics, there were many more responses that reported that there were *more* potential jurors that were minorities (as compared to before the pandemic) than there were responses that reported that there were fewer potential jurors that were minorities (as compared to before the pandemic).

· In response to the question of whether respondents had noted an increase in requests to be excused for hardships by potential jurors (as compared to before the pandemic), 100% of those who responded to the prior survey said "yes," whereas only 40.3% of those who responded to the current survey said "yes."

· In response to the question of whether the standard that respondents were using for excusing jurors had/has been more forgiving, less forgiving, or the same as before the pandemic began, according to the prior survey, 92.9% reported a more forgiving standard, 7.1% the same standard, and none reported a less forgiving standard; according to the current survey, while it still was the case that no one reported using a less forgiving standard, now only 71.9% reported using a more forgiving standard, and 28.1% reported using the same standard.

· In response to the question of whether respondents automatically exempt individuals who are high-risk (e.g., due to being 65+ years old) without an inquiry or whether respondents make their usual inquiry about service and then decide, the prior survey showed that 53.6% were automatically exempting these individuals, whereas the current survey shows that only 12.3% are now automatically exempting these individuals.

· In response to the question (only included in the current survey) of which remote procedures respondents may keep even after their court reopens fully for in-person trials (if they have adopted any remote trial procedures during the pandemic), 92.2% said yes for remote scheduling conferences, 87.5% said yes for remote motion hearings, 20.3% said yes for remote jury selection followed by an in-person trial, 14.1% said yes for full remote trials, and 3.1% said yes for remote deliberation after an in-person trial.

* * *

The following are the full results from the current survey and--other than for the "additional comments" question--the results from the August 2020 iteration of the survey.

* * *

1. Have you started in-person jury trials?

July 2021 responses:

Yes: 88.9%

No:11.1%

August 2020 responses:

Yes: 20.5%

No: 79.5%

2. If you answered “No", when do you expect in-person jury trials to begin in your court?

July 2021 responses:

August 2021: 37.5%

September 2021: 25%

October 2021: 25%

November 2021: 0%

December 2021: 0%

January 2022: 0%

Not Yet Determined: 12.5%

August 2020 responses:

September 2020: 20.3%

October 2020: 14.1%

November 2020: 4.7%

December 2020: 1.6%

Not Yet Determined: 59.4%

3. If you have started in-person jury trials, have you noticed a difference in the demographics of gender, age, or race of potential jurors (as compared to before the pandemic began)?

July 2021 responses:

Yes: 25.0%

No: 75.0%

August 2020 responses:

Yes: 44.4%

No: 55.6%

4. If you have noticed a difference in the demographics of gender, age or race please check all that apply. If you do not check a box in a demographic category of age, gender or race that will be recorded as the demographic remaining the same as before the pandemic. (Please check all that apply.)

July 2021 responses:

Older than before the pandemic: 2/15

Younger than before the pandemic: 13/15

More minorities than before the pandemic: 8/9

Fewer minorities than before the pandemic: 1/9

More women than before the pandemic: 1/3

Fewer women than before the pandemic: 2/3

August 2020 responses:

Older than before the pandemic: 0/8

Younger than before the pandemic: 8/8

More minorities than before the pandemic: 2/6

Fewer minorities than before the pandemic: 4/6

More women than before the pandemic: 3/3

Fewer women than before the pandemic: 0/3

5. Have you noted an increase in requests to be excused for hardships by potential jurors?

July 2021 responses:

Yes: 40.3%

No: 59.7%

If yes, please estimate the percentage increase in those requests.

Most responses ranged between 10% and 50%.

Please estimate the percentage of those requests that you granted.

Responses ranged between 20% and 100%.

August 2020 responses:

Yes: 100%

No: 0%

If yes, please estimate the percentage increase in those requests.

Most responses ranged between 2% and 52%.

Please estimate the percentage of those requests that you granted.

Most responses ranged between 60% and 100%.

6. Has the standard you have been using for excusing jurors been more forgiving, less forgiving, or the same as before the pandemic began?

July 2021 responses:

More forgiving: 71.9%

Less forgiving: 0%

Same: 28.1%

August 2020 responses:

More forgiving: 92.9%

Less forgiving: 0%

Same: 7.1%

7. If a potential juror falls into a high-risk category due to age (65+), being a member of a minority community, or caring for a high-risk individual do you:

July 2021 responses:

Automatically exempt that individual with no inquiry: 12.3%

I make my usual inquiry about service and then decide: 87.7%

August 2020 responses:

Automatically exempt that individual with no inquiry: 53.6%

I make my usual inquiry about service and then decide: 46.4%

8. If you have increased the number of jury summonses being issued as a result of the pandemic, please estimate the percentage increase:

July 2021 responses:

Many responses ranged between 10% and 30%, but there were a number of responses that departed significantly from this range.

August 2020 responses:

Many responses ranged between 10% and 30%, but there were a number of responses that departed significantly from this range.

9. Additional comments: (For example, if your demographics are the same as before the pandemic but you are excusing more people in the high-risk categories, we would like your thoughts on ways to achieve a true cross-section of the community.)

[The following are the responses (unedited) we received to this question (July 2021).]

"The return rate on summons is much lower than before the pandemic."

"The response that we make the "usual inquiry about service and then decide" is not quite accurate; if anyone in the high risk group asks to be excused, they are excused."

"We tested and implemented a remote civil jury trial project, and found that the jurors loved the experience. Being able to serve from home enables even those who felt at high risk to serve without feeling their health was being endangered by their service."

"The best way to achieve a true cross section is virtual voir dire. It's amazing how much more diversity that creates in the pool, and how much more reflective the members of the pool are of the community. Excusals do not seem to especially affect any particular group."

"We have a high rate of vaccination in my state--Minnesota."

"We have kept careful statistics and have found no decrease in the ethnic/racial composition of our jury panels."

"It appears that those jurors who have been excused have not affected the demographics of the jury panel in the courtroom."

"Since we started back, I have been surprised at the small number of problems we have incurred. Demographics appear to be fine."

"Been in jury trials nonstop since early April. Jurors are complying with CDC protocol. Almost all have been fully vaccinated and those who have not wear masks in the courtroom. No issues."

"As noted, there is a general covid screen done before the jurors become part of the venire, so the cause challenges before me are not covid related."

"I did see a shift of more jurors willing to serve in the first 5 months of the year and I was more forgiving for excuses. It was interesting that I was seeing less cause challenges more African Americans actual serve on the jury during the pandemic. Since June once the vaccines have been available, I have shifted back to the pre-pandemic level of excusing jurors. Although it is a small sample, in the last 6 weeks, the cause challenges appear to have gone back to normal."

"I am surprised by how FEW jurors are using COVID as a reason to be excused. I think jurors may be MORE vested in serving than pre-COVID."

"That we are excusing more people in high-risk categories does not automatically mean that we are no longer achieving a true cross-section. Persons fall into high-risk categories themselves appear to come from a cross-section of the community."

"The Clerk's Office screens high-risk jurors. As a result, the number of hardship requests has been reduced."

"This concern is WAY overstated and perpetuated mostly by criminal defense lawyers, and others, who do not have actual 'boots on the ground' experience dealing with the situation. While it is possible there may be slightly fewer minority jurors showing up (who would presumably favor defendants in criminal cases), there are also many fewer older jurors showing up (who are generally very conservative and would presumably favor the prosecution in criminal cases). I wonder why the focus seems to be so much on minority jurors not participating, but very little is said about older people not participating??"

"Still trying to figure out what is happening in general."

10. If you have adopted any remote trial procedures during the pandemic, please let us know which of the following remote procedures you may keep even after your court reopens fully for in-person trials:

Remote scheduling conferences: 92.2%

Remote motion hearings: 87.5%

Remote jury selection followed by an in-person trial: 20.3%

Remote deliberation after an in-person trial: 3.1%

Full remote trials: 14.1%

Other: 21.9%

If you chose "Other," please list or comment below:

[The following are the responses (unedited) we received to this question (July 2021).]

"Remote witness testimony via Zoom or Teams"

"Pre-trial matters in both civil and criminal cases will not likely return to in-person settings, but they are handled via email more than zoom/virtual."

"Remote settlement conferences, remote trial testimony, remote trial if stipulated.

Note the rate at which jurors show up has been affected. Survey does not address.

We summons jurors directly to the Courtroom currently -- response of summoned jurors has been 50% or less."

"The full remote option is for civil cases only. We've done quite a few that way. ALL jury selection, for all cases, is virtual at this time, as are all dispositive motion hearings."

"Settlement conferences with the court in every case."

"Remote arguments. Remote TRO hearings. Remote class certification hearings. Remote change of pleas. remote sentencing."

"All back in person except for minor pretrial conferences with out of state lawyers. Lawyers have loved the resumption of being in court in-person. Even for scheduling conferences. They have thanked me profusely for getting trial lawyers back in the courtroom."

"I feel about remote 'virtual' proceedings the way my grandfather felt about sows, saying 'Every time that sow sticks its snout under the fence, kick it.' Zoom trials are like a priest being told to celebrate mass in a Wal Mart parking lot."

"Fully remote bench trials"

"Remote bench trials, remote settlement conferences (and indeed everything remote other than jury trials)"

"Jury trials must be in person. Bench trials depend on the parties and counsel."

"Bench trials"

"Full jury-waived trials conducted 100% remotely"

"I would continue only remote bench trials by stipulation of the parties."

"Remote court trials are common. Not jury trials. Low income jurors do not have the internet access to appear remotely."

"Remote non jury trials and remote evidentiary hearings"

* * *

Thank you, again, to all who responded to our surveys. We are very grateful for your help!

Michael Pressman, Research Fellow at the Civil Jury Project, holds a B.A. and M.A. in philosophy from Stanford University, a J.D. from Stanford Law School, and a Ph.D. in philosophy from the University of Southern California.