The Jury Selection Process Needs an Update | Opinion

Justice may be blind but jury selection sure isn't.

I was chosen recently to appear for jury duty. Amidst a pandemic; as an essential worker, the timing could not have been worse.

Jury duty is what one opts-out of, not into. It is the mandatory civil obligation that seems to be almost everyone's least favorite activity. I came to realize, isn't it time we update the jury selection process as a whole?

The rules are as follows. A jury of your peers. Eight members. Two alternates. Defendants and plaintiffs alike weeding out the candidates with the precision of a neurosurgeon. It is called the jury selection process, but really it is the deselection process. The voir dire—to speak the truth—is anything but. It is a cunning way to win sympathy for one's client and must be revised to reflect the modern world.

I previously served on a grand jury before. This was my first time being questioned, and perhaps it was in these hours of both reflection and boredom that I became acutely aware of how preposterous this process was. How can an antiquated system still be applicable in today's society? For one thing, of the 12 in question, I was one of four women. Shouldn't I have been weighted higher to ensure that an equitable balance of power was represented? This was just one case, but how often are minorities limited from big court cases that involve blatant racism just to diffuse a situation? It was all starting to feel unjust.

While I understand that juries need to be vetted to rule out extreme prejudice and bias, I am not sure how that can occur when attorneys have their own personal agenda so blatantly displayed. For example, when questioned, they delved into the fact that I was a teacher. No applause. No appreciation for being there for our kids. Instead, I heard a conversation that should have remained in the plaintiff's head: "Teacher may be difficult. ... Teachers may be too analytical." This was happening in a courtroom seeking justice, and I was being stereotyped. If such prejudices are allowed in jury selection, how can we ever have a fair trial?

With so many high-profile cases going on at the moment, such as Ahmaud Arbery's, it does not go unnoticed that there was only one Black person chosen for that jury. This isn't the first case that this has happened and unless we rectify the jury selection process it won't be the last. This blatant and abusive use of power has to stop.

Throughout the questioning process, lawyers kept repeating the same phrase to each juror: "Can you promise not to allow sympathy to affect your decision?" Yet, their process was the complete opposite. "We see discrimination everywhere and it is a society-wide problem that needs fixing," added a civil rights lawyer who chose to remain anonymous.

I think we might have better odds having ping pong balls decide jurors at random than allowing this archaic selection process continue.

As far as racial discrimination in jury selection, Batson v. Kentucky (a case barring lawyers to excuse jurors solely on race) was a big leap forward, but it has to be enforced by judges who want to be fair. This unfortunately is not always upheld. Posthumous pardons do little to bring back falsely accused criminals.

I get it, it's a system of checks and balances. The lawyers are there to protect their client and if I am ever in that situation, I would want the same dedication. "It is an adversary system and the lawyer's job is to act in the best interests of his client, not of the potential jurors," said the civil rights lawyer.

Juror seats in a courtroom
Juror seats in a courtroom are shown. Joshua Gates Weisberg-Pool/Getty Images

However, the system could still use some updating. Perhaps it is as simple as a more comprehensive questionnaire filled out online that matches jurors with a case. This process of vetting is often done in more high-profile cases. If it works for roommates and potential partners, perhaps a system could be designed to more methodologically choose jurors. A jury of one's peers, one former prosecutor pointed out, does not have to be based on race but commonalities should exist.

Another option would be to follow the concept that justice is blind to its full effect—leave race and gender out of it completely. What if it really was just a random selection process?

Needless to say, I wasn't chosen for jury duty—none of us were in the end. After spending a full day being questioned, the case was settled, and we were asked to go home. But I could not stop thinking about how I was excluded from a process I very much would have liked to partake in—a chance to learn about the letter of the law and understand the civil process firsthand. It appears that in this country, I'm allowed to be an essential worker and return to work when few people I know are leaving the comforts of home, that I can work with a population of students appallingly left behind in the digital divide. But ultimately, I am unfit to be in a courtroom because of the stereotype of my vocation.

I do know this: While there are endless cases like what is going on in Georgia right now, with only Black member of a jury, there are none where minorities comprise the majority of a jury. If that was the case, more people just might object.

The law, however, is clear on this. According to the 6th amendment, we are entitled to an impartial hearing by our peers. It is the how they are chosen that is questionable. What starts off as a potential jury of one's peers ends up a different alchemy after the vetting process.

Our country is one of the few with a jury of one's peers. In other parts of the world, either judges solely make the jury selection, or one is guilty until proven innocent, not necessarily giving the accused a fair trial. I am not objecting to the concept of a jury of one's peers, but rather in the selection process.

When asked about the current jury selection process, Peter S. Thomas, a trial lawyer who has written much on the topic said, "It allows for—permits—exclusion based on bias. It has to, in order for it work," he said. "As a lawyer you are allowed three peremptory challenges which you need not articulate a single reason why." Perhaps limiting these challenges might force both parties to focus more on the jury in front of them.

The jury selection process needs to evolve. It wasn't that long ago when women were not even allowed to serve as jurors. Without change, we cannot survive.

Members of the jury are a membership I was not privy to. For centuries, in gravely more serious cases, this has been the norm. Jury selection is like natural selection and only the lawyers get to decide who survives. That should be up to the people, by the people.

Elana Rabinowitz is an ESL teacher and freelance writer. Her work has appeared in The New York Times, The Washington Post and CNN. Her Twitter is: @ElanaRabinowitz.

The views expressed in this article are the writer's own.