Should the Court Provide Juror Demographics?
A good friend of mine is of Sephardic Jewish ancestry. This is common enough in the New York metro area but can confuse folks from parts of the country where it is less common. One firm interviewing my friend for a job years ago decided to address the issue in the least elegant way possible. “Yeah, So what race are you anyway?” While the EEOC takes the position that this approach to job interviews is not, strictly speaking, illegal, it is definitely not recommended and can be used as evidence of bias in hiring.
But clumsy as that was, it's possible to run into a similar situation during jury selection. As we've written before, Batson [1] and cases since give litigants the right to challenge jury strikes by the other side that appear to be motivated by race or gender. And as we've also written before you'd think that this would also apply to other protected categories, but the law is decidedly unclear on that topic.
But to challenge a juror you need to be confident that the other side has actually removed a juror of a particular race or gender. For gender this tends to be fairly straightforward—though you can imagine more difficult cases. But for race it can lead to somewhat awkward disputes about whether a struck juror or is “white or not.”
One potential way to address the issue is for the courts to collect demographic information from jurors themselves and provide it to attorneys during or prior to jury selection. That would avoid any potential ambiguity and also provide more concrete numbers to use when making a Batson application. As we've written before these kinds of statistics can sometimes persuade even skeptical judges of the existence of impropriety. Justice Alito's concurrence in the Flowers v. Mississippi case comes to mind.
But currently the states are all over the place when it comes to gathering and sharing juror demographic data. A February 2024 survey [2] conducted by the Berkeley Law Death Penalty Clinic found that only 19 states, the District of Columbia, and the federal court system, collect juror demographic data on a system wide basis. Four other states, Illinois, Louisiana, Mississippi, and Utah, have at least some courts that collect this information, but do not do so throughout their court systems. The 27 remaining states do not collect this information for any of their courts. Nebraska as a truly weird outlier-among-outliers has a mandatory jury form that requires potential jurors to provide their racial background but does not provide this information to anyone and claims not to keep any record of it. When asked about it, the Nebraska courts claimed that nobody had reviewed any of the racial background responses since 2015.
Of the 19 states that do collect juror racial background information what they do with it also varies substantially. Seven states, Nevada, Arizona, New Mexico, Texas, Pennsylvania, Delaware, and Connecticut, provide juror demographic information to the parties and the court for use in jury selection. This information is, for most of the states, gathered as part of broader jury questionnaires that asked potential jurors for a variety of personal information so as to simplify and streamline the jury selection process. Nevada is a little different in that the state assembles a master list of potential errors from public records that also contain this information.
Nine additional states, North Dakota, Minnesota, Iowa, Missouri, Wisconsin, West Virginia, Alabama, Georgia, and South Carolina, collect juror racial data but do not provide it to parties automatically. Instead, the data is available but provided only at the request of the parties or at the discretion of the court.
New Jersey collects demographic data from jurors but does not provide it in connection with jury selection. Instead, it provides only aggregate racial composition data to the public, allowing researchers to study the racial makeup of jury pools across the state but not giving attorneys any insight into particular jurors. And New York and Massachusetts courts gather juror demographic data for use in their annual reports, but do not provide the raw data to the public or to the parties engaged in jury selection. So, if, like us, you practice in New York, you're currently left with largely guesswork to identify a juror's race.
But at least one organization is seeking to change this rule. It has been reported [3] that New York County Defender Services, the second largest public interest criminal defense firm in Manhattan, has filed suit against the state court system arguing that the failure to provide juror demographic information violates both the federal and New York state constitutions. In addition to the constitutional protections embraced by Batson, the firm is arguing that defendants have a right to juries that represent “a fair cross section of the community.” More precise demographic data would permit attorneys to argue more concretely about how a particular jury or jury pool varied from the community from which it was drawn.
In addition, New York state's constitution, infamously over 7 times the length of the federal constitution and replete with all sorts of guarantees, has a specific guarantee of the right to serve on juries. Chapter 6, Article 2, Section 13 provides:
No citizen of the state possessing all other qualifications which are or may be required or prescribed by law, shall be disqualified to serve as a grand or petit juror in any court of this state on account of race, creed, color, national origin or sex, and any person charged with any duty in the selection or summoning of jurors who shall exclude or fail to summon any citizen for any of the causes aforesaid shall, on conviction thereof, be deemed guilty of a misdemeanor and be fined not less than one hundred dollars nor more than five hundred dollars or imprisoned not less than thirty days, nor more than ninety days, or both such fine and imprisonment.
As such, access to demographic data would also permit excused jurors to more effectively challenge whether they had been improperly excluded from jury duty. This is a somewhat theoretical issue, as precious few people ever fight to be put on juries and most folks who would are not the jurors that you would like to have.
It is not clear how the New York State court system will respond, though it is reported that arguments will be made in the coming weeks. But even if NYCDS is ultimately unsuccessful, the trend in recent years has been toward greater access to juror demographics. California recently passed a law directing that a pilot program to study the provision of juror demographic data be launched in six counties. And multiple other states, such as Michigan and North Carolina, have introduced or studied legislation in recent years to require the collection of juror race and ethnic data.
Decades since Batson, it can be tempting to view the ruling as largely a failure, and some states have either adopted less stringent rules for evaluating juror strikes (like Washington) or have done away with them entirely (like Arizona). But regardless of the effectiveness of the Batson rule, the desire to make jury selection fairer and free it from an often-ugly history of racial bias continues. And one measure of that effort is the progress made in giving attorneys the ability to measure and clearly articulate signs of racial bias in jury selection.
[1] Batson v. Kentucky, 476 US 79 (1986).
[2] https://www.law.berkeley.edu/wp-content/uploads/2024/02/Guess-Whos-Coming-to-Jury-Duty_2-14-24.pdf
[3] https://gothamist.com/news/ny-lawyers-are-suing-state-court-officials-over-access-to-juror-demographics
