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February 13, 2024

Changing Voir Dire Standards

By: Ann Keith

What does jury selection have to do with appellate judges?  The Changing Voir Dire Standards breakout session emphasized the critical importance of jury diversity and highlighted the role of appellate judges in ensuring jury panel diversity.

The Honorable Lucy Inman, who previously served as a trial and appellate judge in North Carolina, and is currently Senior Counsel at the Milberg law firm in Raleigh, moderated the session.  Panelists included Professor Nina Chernoff, the Honorable Edwina Richardson-Mendelson, and attorney Emily Coward. 

Professor Chernoff teaches at the City University of New York School of Law.  Her research focuses on the right to a jury selected from a fair cross-section of the community.  Her scholarship includes Wrong About the Right: How Courts Undermine the Fair Cross-Section Guarantee by Confusing it With Equal Protection (2012); Black to the Future: The State Action Doctrine & The White Jury (2019); and Preempting Jury Challenges: Strategies for Courts and Jury System Administrators (co-authored with Dr. Joseph B. Kadane) (2012).  Professor Chernoff also works with courts, lawyers, and communities seeking to diversify their jury pools and was a consultant to the New Jersey Judiciary.

Judge Richardson-Mendelson is Deputy Chief Administrative Judge for the New York State Unified Court System, where she heads the newly expanded Office for Justice Initiatives, tasked with ensuring meaningful access to justice for all New Yorkers in civil, criminal, and family courts, regardless of income, background, or special needs.

Emily Coward serves as Director of the Inclusive Juries Project within the Center for Criminal Justice and Professional Responsibility at Duke University School of Law. From 2012 to 2021, Emily was an attorney with the UNC School of Government’s Public Defense Education group, serving as Director and Project Attorney of the North Carolina Racial Equity Network.

Professor Chernoff began the session by sharing data supporting the critical importance of jury diversity.  Data shows racially mixed juries increase public confidence in courts, render less biased verdicts, and conduct higher quality deliberations. A study of more than 700 felony trials in Sarasota and Lake Counties in Florida from 2000-2010 concluded that even small changes in the composition of a jury pool have a large impact.  “The black-white conviction gap declines . . . in all trials in which there is at least one black member of the jury pool.” Shamena Anwar, Patrick Bayer, Randi Hjalmarsson, The Impact of Race in Criminal Trials, The Quarterly Journal of Economics, Volume 127, Issue 2, May 2012, pp. 1017–1055.  Notably, in racially mixed juries, white jurors changed their behavior. Racially mixed juries deliberate longer, discuss more case facts, make fewer factual errors and fewer uncorrected factual errors, and include more statements about race.

The panel stressed that courts have the affirmative duty to empanel juries representing a fair cross-section of the population. Appellate judges can ensure diverse juries through administrative rule making. Judge Richardson-Mendelson encouraged the development of juror source lists that include diverse populations.  New York, for example, uses source lists of registered voters, holders of drivers’ licenses or IDs issued by the Division of Motor Vehicles, state income tax filers, recipients of unemployment insurance or family assistance, and those who voluntarily sign up for jury service.  Community outreach is also a significant part of New York’s diversity initiative, under which 108 community outreach events have been conducted.  The state coordinates with the federal courts in updating a centralized juror list.  The courts can follow up on non-responders to jury duty using upgraded technology, which conducts audits and random checks.  Using a zip code jury dashboard, individual jury commissioners can really target their outreach efforts to ensure diverse juries.  The courts collect demographic information about jurors anonymously after they appear in court.  New York also completed a virtual jury orientation pilot program in 2022 and 2023.  Jurors completed the orientation online, and if a juror did not have a computer, they were provided with one.  Jurors completed all paperwork online.  Only chosen jurors had to appear in person.  The program resulted in an extremely high appearance rate.  New York also has the highest juror pay rate in the country ($40/day) and advocates for higher pay each year.

Professor Chernoff described efforts at the national level, and made the following recommendations for non-legislative changes to jury systems:

  1. Update source lists more often with updated addresses to increase diversity.  Income and home ownership is significantly higher for white people, and homeowners keep an address longer than renters do, which is why undeliverable rates are higher in communities with people of color.  Use source lists that update addresses, rather than relying on motor vehicle division records, which frequently provide old addresses. 
  2. Develop a mandatory follow-up process.  Courts that send follow-up notices have a 34%-46% lower non-appearance rate.
  3. Have a solution to non-responders, as this is a key to juror-pool diversity.  When income is controlled for, the response rate for black and Hispanic jurors is the same as white jurors.
  4. Examine how well source lists represent the community.  
  5. Collect race and ethnicity data through the summons, at the courthouse, or using source lists with demographic data.

Emily Coward described the rule-making role of the courts in eliminating discrimination in jury selection to improve fairness in our system of justice.  In Batson v. Kentucky, 476 U.S. 79 (1986), the United States Supreme Court ruled that peremptory challenges may not be used to discriminate against and eliminate potential jurors on the basis of sex, race, ethnicity, or religion.  Doing so violates a criminal defendant’s right to due process of law and equal protection under the United States Constitution.  Coward summarized judicial rule-making approaches taken by appellate courts regarding Batson challenges, concluding that today there is widespread agreement that Batson has failed to achieve its central theme. 

Some states are replacing the Batson framework because it does not reach strikes made because of implicit bias, and mistakes are unlikely to be corrected on appeal.  Black jurors are being struck more today than white jurors.  Nearly one-sixth of states have strengthened their frameworks, with Washington, Connecticut, New Jersey, and California replacing their process through legislation.  Each approach has been different, but each eliminates step 1 of the Batson inquiry, thereby eliminating the requirement of proving intentional discrimination, instead adopting an objective observer standard. Arizona completely eliminated all Batson challenges.  The panel offered two resources to consider when developing a reform of Batson: Batson Reform: State by State, and The End of Batson? Rulemaking, Race, and Criminal Procedure Reform, Thomas Frampton & Brandon Osowski, 4/15/23.

Apart from rule-making, appellate courts have difficulty reviewing appeals because the standard of review is deferential and records are very undeveloped –the race of jurors may not be reflected in the record. Nonetheless, even though the job of enforcing Batson rests with trial judges, there are ways appellate courts can shape what is happening in trial courts.

  1. Call for judicial rule-making within legal opinions. In New Jersey and Washington, Supreme Court justices wrestled with the shortcomings of Batson and used opinions to call for judicial committees that would review Batson-related rules to improve diversity.
  2. Articulate what is necessary to preserve an adequate record in a Batson challenge case.  Require transcription of voir dire and jury selection.  Remind trial judges that they need to ensure fairness by transcribing voir dire, making a record, etc.
  3. Learn the appellate Batson record in your state.  In 2020, North Carolina recognized that there had not been a Batson challenge in three years, and wrote in State v. Robinson, 375 N.C. 173 (2020), that despite a study of discriminatory challenges, there had never been a Batson case.
  4. Make sure State Batson doctrine keeps up with Federal Batson doctrine.
  5. Understand the standard of review is highly deferential, but that does not preclude relief.

Judge Richardson-Mendelson concluded that appellate court judges are community leaders and thus can be part of a community that endeavors to improve law and justice in our courts, and equal justice committees are part of our engagement in improving diversity in our juries.

Ann Keith

New Mexico Supreme Court

Ann Keith is General Counsel to the Chief Justice of the New Mexico Supreme Court. Before joining the Supreme Court in 2021, she was a partner at Stiff, Keith & Garcia, LLC, an insurance defense firm in Albuquerque. Ms. Keith earned a bachelor’s degree from the University of Arizona, a master’s degree from Northern Arizona University, and Juris Doctor from the College of William & Mary. While in law school, she worked as a research associate at the National Center for State Courts. Before law school, she was a principal and teacher in Marana, Arizona. 

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