It is well known that race-based peremptory challenges are constitutionally prohibited by the Equal Protection Clause, but we often have clients ask about the importance of the racial composition of a jury. While the issue of whether race influences verdict outcome is case-specific and far more complex than can be addressed here, the bottom line is that diversity matters in every case.
The Benefits of Diversity in a Jury Panel
Even in trials that do not directly involve racial issues, defendants benefit from having a diverse jury. In fact, all parties interested in a fair trial benefit from a diverse jury that is representative of the community. First, the public is more likely to accept verdicts rendered by diverse juries as legitimate. For the public to have faith in the justice system, they need to feel that their points of view are represented in the juries that decide cases. Second, diverse viewpoints enhance the deliberation process. Justice Thurgood Marshall eloquently articulated this explanation in the US Supreme Court ruling, Peters v. Kiff, 407 U.S. 493, 503 (1972): “When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable.”
The Value of Diversity in a Jury Panel
But what is the value of having a range of human experiences in the jury room? Social science research supports Justice Marshall’s observations and has found that diverse juries are more likely to “get it right” than non-diverse juries. Diverse juries promote vigorous debate, which encourages jurors to examine a case’s facts and evidence more carefully. Research also shows that diverse juries have an edge in fact-finding, especially when matters involve social norms and judgments, as jury trials often do. For example, negligence depends on what jurors think is “reasonable” (Hans & Vidmar, 2008).
A 2006 study by Sommers provides additional evidence of differences in the deliberations of diverse versus homogeneous juries. In that study, the racially diverse juries deliberated longer, discussed more trial evidence, and made fewer factually inaccurate statements when discussing the evidence than did all-white juries. It is not that the minority members of the jury were more thorough or accurate than the white jurors, but in diverse juries, all members of the group take more care to examine the evidence and reflect critically. The reasons for this effect deserve further investigation, but it appears that a diverse jury encourages its members to examine the support for their own beliefs in preparation to defend their positions and convince others of differing viewpoints. Likewise, in the face of challenges to one’s point of view, members are more likely to abandon positions that cannot be supported by the evidence.
Another explanation is that diverse juries reduce the likelihood of “groupthink” errors. Groupthink is a psychological phenomenon where members of a group seek concurrence for the sake of promoting harmony and reducing conflict within the group– so much so that they end up making poor or irrational decisions. Groupthink leads to a lack of critical evaluation of alternative viewpoints because members of the group actively suppress dissenting or minority viewpoints. Groupthink is particularly likely to occur in groups that are insulated from outside influences and that lack clear procedures and methods for reaching conclusions. In essence, this is the same situation that jurors find themselves in during deliberations. Perhaps most importantly, diversity of group members is a powerful antidote for groupthink. Though additional research is needed on the role of groupthink in jury deliberations, established psychological theory and research on groups clearly suggest that jury diversity is an important element of an effective deliberation process.
Why Diversity in a Jury Panel Matters
Why is this especially important for defendants in civil cases? The available research suggests that thorough deliberation benefits the defense. In a large-scale mock jury study involving premises liability cases, juries that thoroughly discussed each element of the claim were less likely to find the defendant liable or award punitive damages. In fact, all of the juries that found in favor of the plaintiffs gave only cursory discussion to the legal elements of the claim, whereas a large majority of the juries that examined each element sided with the defense (Hastie, Schkade, & Payne, 1998). It appears that when jurors thoroughly review the elements of a claim, there is an increased probability they will determine that some of the elements are not supported by a preponderance of the evidence. Thus, the more thorough the deliberation process, the more likely the jury is to find in favor of the defendant.
How Do Defendants Preserve the Diversity of a Jury Panel?
One way to preserve diversity in a jury panel is to propose juror questionnaires and voir dire questions that assess the attitudes and experiences of prospective jurors–not just on issues for cause, but to learn about who your jurors are. IMS frequently works with trial counsel to develop questions that assess the range of juror experiences that matter to your case. In terms of racial diversity, the justice system provides Batson challenges, and counsel should not be afraid to use them.
