The brilliant Sixth Amendment, among other things, establishes the right to a fair and impartial jury. That impartiality begins with the construction of a master juror list with names chosen randomly by computers from voter registration lists and drivers’ license records. Some jurisdictions go further, trying to deliberately engineer demographic balance on jury rolls.

Jury integrity may actually be undermined when courts take a proactive approach to ensuring jury pools constitute a representative cross-segment of the community. By definition, impartiality requires a color-blind, nondiscriminatory approach to select jurors; conversely, affirmative actions to mold juries by pursuing “democratization of jury selection” can foment group allegiances with preferred outcomes.

This activist approach is particularly problematic when courts examine jury demographics by administering surveys that only include those who show up. Furthermore, so-called Jury Representation Surveys should not contain questions that pertain to groups whose answers can’t be accurately compared to the community’s demographics as reflected in the U.S. Census. But they do…

I recently fulfilled (again!) my civic responsibility of jury duty. While in my county’s jury assembly room I read "A Juror’s Guide to Courts." This very brief pamphlet emphasizes the importance of open-mindedness; for example: “You must base your decision solely on the evidence and not on sympathy or prejudice. It is critical that you begin your service unbiased toward any party, lawyer, or witness and that you keep an open mind until you have heard all the evidence…”

So far, so good; but soon there was a plea from the juror administrator to complete a “Jury Representation Survey.” Apparently, she was under some pressure to retrieve completed surveys because her reminders came thick, fast, and loud. This seemed peculiarly out of place, undermining the notion of color-blind, randomized jury pool. Are they questioning the impartial computers? Will they conjure data to justify a socially-conscious intrusion into the randomized process? Will they go so far as to allow reformed felons, or newly naturalized citizens who struggle with the English language, to serve if it broadens the jury pool?

I finally relented to my curiosity and picked one up. In addition to age, race, gender, and ethnicity, it actually asked about “orientation.” I try to be open-minded, and don’t wish illegal discrimination on anyone, but I was aghast.  If the goal is to provide data which can help identify disparities between a group’s representation in the larger community and that of the jury pools, what does orientation have to do with it?  Even the U.S. Census doesn’t query one’s sexual orientation (not yet, anyway), so the answers to the court’s survey results can’t be adequately mapped to the U.S. Census data.

Judge William J. Caprathe, on behalf of the State Trial Judges Conference, presented a paper a few years ago that seems to favor a more interventionist, socially-conscious tact (random and non-discriminatory methods are not sufficient alone) to pursue affirmative attempts to achieve juries that reflect a fair cross section of the community. This requires the court to document the demographics of the jury pool by use of… surveys. Nevertheless, even he stipulates -- as judges like to do -- that “It is important that the survey questions use the identical question format and answer categories as those used by the U.S. Census Bureau.”

This bears repeating: the groups identified under the “orientation” question on our survey are not recognized as a distinct group by the U.S. Census. Why should they be given special consideration in forming juries when there’s minimal comparable Census data to ascertain their representation quotient? More disconcertingly, questions about “orientation” hint that jurors could be influenced by their sexual preference – this disrespectfully pigeonholes them while making a mockery of the overarching theme of impartiality presented in my state’s "A Juror’s Guide to Courts."

Rather than potentially subvert the impassive computerized processes by concocting prejudicial surveys, we could broaden jury participation by imposing consequences on those who fail to appear without excuse. There’s evidence that when non-citizens, felons, and those not proficient in English are excluded from the datasets, then the pool is much more representative of the community. And since minorities are more likely to be excused for hardship (like inadequate child care alternatives, nominal jury pay, and lack of transportation) or just not respond to summonses, the impaneled juries are even more democratized when compared to the dataset of those eligible, able and willing to serve.

The same survey foisted upon those who do report for jury service should also be required, under threat of penalty, of anyone who is excused due to hardship (they can conveniently complete it online or over the phone). Just drop the irrelevant question about sexual orientation, and use that space to ascertain how many non-English language proficient citizens the computer is choosing. This will provide broader insight into the demographics of potential jurors compared to those who sacrificed their normal daily obligations to report for duty.

There’s some evidence that jury composition can affect conviction rates. So, to encourage more minority representation, jurors who fail to respond to summonses or who are granted a hardship deferral should not be automatically relegated to the bottom of the master jury list but remain eligible for prompt recall.

To achieve more representative juries, some courts have expanded the sources of the master juror list to include state-issued identification cards, presuming the expanded pool of potential jurors meet all the eligibility criterion, including: U.S. Citizen, able to communicate in the English language, at least 18 years of age, and be a non-felon. 

Both of these agnostic methods are better than intrusive data-gathering efforts with inappropriate questions given only to those who report. These preposterous questions about sexual orientation undermines confidence in a system that, according to the juror’s guide, purports: “It is enough that you keep an open mind, use common sense, concentrate on the evidence presented, and be fair and honest in your deliberations.” We’re aiming for a jury of peers chosen randomly, not fashioning a jury with members from distinct groups not recognized in the United States Census.

It may be Panglossian, but jurors are supposed to focus solely on the evidence in a case, not represent bloc mentalities with preferred outcomes. Let’s not orchestrate competing group loyalties to assuage the PC critics of our imperfectly representative panels. Their affirmative action approach undermines the impartiality incumbent upon the bedrock principles laid down by our brilliant ex-British founders that jurors decide based on the facts; judges decide the law.