Diversity and the Civil Jury

TABLE OF CONTENTS INTRODUCTION I. CONCEPTIONS OF DIVERSITY IN THE CIVIL JURY CONTEXT II. JURY SERVICE AS A FORM OF POLITICAL, DEMOCRATIC PARTICIPATION III. JURIES INCREASE PUBLIC CONFIDENCE AND LEND LEGITIMACY TO VERDICTS A. Procedural Fairness and Perceived Legitimacy B. Representing a Community's Moral Sense C. Increasing Perceptions of Legitimacy Through Jury Service IV. JURY SERVICE AS AN EDUCATIVE OPPORTUNITY A. Learning About Political Institutions and Rights B. Engaging with and Learning About One's Political Community V. NORMATIVE CONSIDERATIONS AND CONCLUSION INTRODUCTION Much focus (and criticism) has been given to the jury's role as fact-finder, including its ability to handle complex evidence, listen to and properly weigh expert and scientific testimony, conduct meaningful and productive deliberations, render appropriate damage judgments, and understand and properly apply instructions on the law. (1) The literature on has also given attention to decision-making processes, the key question being whether more diverse groups render better decisions. (2) Although the competency and accuracy of jury decisions and the decision-making qualities of diverse groups are certainly important, this Article focuses instead on the jury's political functions and the role that has in fulfilling these functions. What are the main political functions of the civil jury, and is jury necessary for the fulfillment of these functions? In this Article, we explore four of the primary political justifications for the institution of the civil jury, highlighting how jury works to promote its underlying political and civic goals. Part I begins by explaining what we mean by the term diversity in the jury context. We adopt the definition of that pervades current jurisprudence, particularly the fair cross-section requirement governing the composition of the jury venire and equal protection claims governing the selection of the jury panel under Batson v. Kentucky and its progeny. Part II moves to our analysis of the first of four political justifications for the institution of the civil jury commonly found in the literature: jury service as a form of democratic participation. We argue that helps to reflect the voice of the community. Part III discusses a second political justification: the jury's role in increasing the legitimacy of both individual verdicts and the legal system more broadly. Here, we first inquire into the relevance that jury has to perceptions of legitimacy and how different understandings of might moderate this relationship. We then evaluate evidence regarding the link between group identities and divergent viewpoints, an empirical fact lying at the heart of the legitimacy argument. Lastly, we evaluate the capacity of jury service to influence the legitimacy of the jury system from the perspective of those participating as jurors. Part IV evaluates the final two political justifications of the civil jury, both of which consider jury service an educative opportunity for citizens. First, jury service represents an opportunity to learn about governance, the operation of the legal system, and citizens' rights. Second, jury service presents a unique moment for members of a political community to interact and learn about and from each other regarding their lives and viewpoints. Here as well, we demonstrate the central role that diverse juries can play in advancing these two aims. With respect to the first, as with the democratic participation function, we argue that the educative benefits of the civil jury should be made available to all members of society. With respect to the second, we suggest that, notwithstanding the potential for the duplication of social status relations and other negative side effects of intergroup contact within the jury room, diverse juries represent an opportunity for learning across differences, especially when the environment is inclusive. …