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Jury selection in Denver Colorado district court

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Title:
Jury selection in Denver Colorado district court in support of Anthony Giddens' structuration theory
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Stockton, Karen Teresa
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Denver, CO
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University of Colorado Denver
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x, 122 leaves : ; 28 cm

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Jury selection -- Colorado -- Denver ( lcsh )
Social structure -- Colorado -- Denver ( lcsh )
Jury selection ( fast )
Social structure ( fast )
Colorado -- Denver ( fast )
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bibliography ( marcgt )
theses ( marcgt )
non-fiction ( marcgt )

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Includes bibliographical references (leaves 119-122).
Thesis:
Sociology
General Note:
Department of Sociology
Statement of Responsibility:
by Karen Teresa Stockton.

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|University of Colorado Denver
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ocn123007935
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JURY SELECTION IN DENVER COLORADO DISTRICT COURT:
IN SUPPORT OF ANTHONY GIDDENS
STRUCTURATION THEORY
by
Karen Teresa Stockton
B.A., University of Colorado, 2005
A thesis submitted to the
University of Colorado at Denver
in partial fulfillment
of the requirements for the degree of
Master of Arts
Sociology
2006


This thesis for the Master of Arts
degree by
Karen Teresa Stockton
has been approved
by

Date


Stockton, Karen Teresa (Master of Arts, Sociology)
Jury Selection in the Denver Colorado District Court:
In Support of Anthony Giddens Structuration Theory
Thesis directed by Assistant Professor Yili Xu
ABSTRACT
Racism remains a core dilemma for the American justice system and
specifically for jury selection. The process of jury selection includes a long history of
racial bias which contributes to an overarching lack of faith in the judicial system.
The United States government has historically attempted to legislate jury selection
practices in an effort to make the process representative and fair. Previous research
concerning jury selection addresses the jury pool from which potential jurors are
summonsed. However, little research exists surrounding the transition from an
initial panel to a seated panel for a specific trial or the race implications which
occur during this transition. The courtroom observations analyzed in this research
illuminate a persistent level of racial bias in the jury selection process and therefore
serve as a springboard towards further investigation into the process of selecting a
jury. This research draws on observations of thirteen jury selections in the Denver
Colorado District Coin! to investigate racial bias during jury selection within the


paradigm of Anthony Giddens Structuration theory. First, I examine Orlando
Pattersons comprehensive research on slavery and its consequences to illustrate the
social structure of domination. Second, I analyze data regarding the makeup of the
courtroom during jury selection observations to demonstrate Giddens intervening
modality of facility. Third, I compare demographic data between initial panels and
seated panels to support Giddens interaction dimension of power. Finally, I
employ insights gained through written memos of each trial to examine the role of
agency in Structuration exemplifying the recursive relationship between the
production and reproduction of social structures. The complex interplay between
dimensions outlined in Giddens model serve as an appropriate tool to help gain a
deeper understanding of issues surrounding one of our nations most complicated and
potentially destructive social dilemmas; that of racism. The courtroom and the jury
selection process afford a rich and dynamic arena in which to test Anthony Giddens
Structuration theory.
This abstract accurately represents the content of the candidates thesis. I recommend
its publication.
Signed
Yili Xu


DEDICATION
I dedicate my thesis to Mark Stockton for his unwavering support during this
process. Thank you for picking up the slack without ever having to be asked. Thank
you for all of the lovingly prepared gourmet dinners. Thank you for fetching me after
a long day at my computer with the promise of a cocktail and the sunset. Down every
path I have ever taken, thank you for never asking why and always asking why not!


ACKNOWLEDGEMENT
I would like to thank Dr. Yili Xu for sharing his expertise in statistical
modeling and analysis, which has served to push me towards becoming more
proficient at quantitative analyst. Thanks to Dr. Candan Duran-Aydintug for
challenging me with strict research methods, aiding in the final outcome of this
research. The experiences in Dr. Leigh Ingrams classes have provided me with many
insights into the judicial and correctional arenas, which became invaluable
contributions to my thesis.
Finally, I would like to thank Dr. Virginia Fink for her constant inspiration
and support. Thank you for the many office hours and lunches where you graciously
allowed me to pick your brain. Our discussions enlightened me to the rich world of
theory, for which I am forever grateful.


TABLE OF CONTENTS
Figures......................................................ix
Tables.......................................................x
CHAPTER
1. INTRODUCTION...............................................1
Purpose of the Study.................................... 5
Theory Link..............................................8
2. REVIEW OF THE LITERATURE..................................13
Jury Selection: An Historical Context...................13
Voir Dire...............................................30
Peremptory Challenges...................................36
Jury Reform.............................................43
Minorities and Jury Selection...........................52
Jury Consulting.........................................54
3. METHODS...................................................58
Sampling................................................58
Operationalization......................................60
Instruments.............................................63
4. PROCEDURES................................................66
vii


5. DATA ANALYSIS
69
Quantitative Analysis: Phase 1......................69
Quantitative Analysis: Phase II.....................81
Qualitative Analysis: Phase III.....................82
Synthesis...........................................97
6. JURY SELECTION: IN SUPPORT OF ANTHONY GIDDENS
STRUCTURATION THEORY...................................99
Orlando Patterson and Anthony Giddens Concept of Domination... 99
Jury Selection and Giddens Structuration Theory...105
7. CONCLUSIONS...........................................Ill
APPENDIX
A. INSTRUMENT: BY JUROR DATA MATRIX......................114
B. INSTRUMENT: BY TRIAL DATA.............................115
C. DETAILS OF JURY SELECTION PROCESS.....................116
REFERENCES.....................................................119
viii


LIST OF FIGURES
Figure
1. A Visual Presentation of Research Plan.........................................7
2. Structures as Employed in Social Practices....................................9
3. Structuration Theory and Jury Selection Research..............................11
IX


LIST OF TABLES
Table
1. Breakdown of Initial Panel and Seated Panel by Race..................70
2. Race and Final Outcome of Jury Selection.................................72
3. Exclusions of African American Initial Jurors..........................73
4. Breakdown of Exclusions by Race..........................................73
5. Breakdown of Exclusions by Race of Juror and Race of Defendant............73
6. Education and Final Outcome of Jury Selection.............................75
7. Criminal History and Final Outcome of Jury Selection.....................77
8. Interview with Judge and Final Outcome of Jury Selection..................79
9. History as a Witness and Final Outcome of Jury Selection..................79
x


CHAPTER 1
INTRODUCTION
Sociologists have long been intrigued by juries as microcosms of society and
social interaction. This research focuses on jury selection as a process with the
potential for reflecting the larger issue of racism that exists in our culture. As a
nation, the United States has endured the legacy of having forced a population onto
its shores for the purpose of slavery and then freeing them under the auspice of
integration. But something else lives and breathes within the legacy of the United
States; the concept of a free, democratic society. For derr ~~racy to remain valid it
must be a reality for all individuals. A judicial system that provides the accused with
a speedy trial, an attorney, a jury of ones peers, and the presumption of innocence
exists as a legitimization of freedom and democracy for Americans. If a distinct
population remains unprotected by these basic principles, then an important aspect of
the democratic spirit erodes.
The conundrum of integrating slaves into a fair and just society may lie at the
root of enduring racism in this country. The transition from slave or slave owner to
neighbor seems to have been grossly underestimated. Legislation and constitutional
law have helped overcome some of the transitional dilemmas posed by abolishing
slavery. This research employs the courtroom arena and specifically the jury
1


selection process to illuminate the subterranean elements of racial bias that still exists
in the United States.
The bulk of previous research on jury selection deals with reforms to the
existing system emphasizing the representative jury. Jury reform literature includes
James Acker and Charles Laniers 1993 research on capital punishment juries, which
outlines five reforms for capital trials and Kathi Middendorfs 1995 research on non-
directive voir dire styles. Hiroshi Fukurai (1997) examines three affirmative action
jury panel options as possible reforms to the jury system. Feddersen and
Pesendorfers (1996) discussion paper questions the unanimous jury and suggests
non-unanimous juries as an option for reducing the chances of convicting the
innocent. Margo Hunter addresses jury size as a means for improving the jury
system (1996) and investigates the legitimacy and efficacy of smaller juries (the six
person jury). Evaluations of judicial reforms towards a fair jury in Deirdre Golashs
(1992) research illuminate a lack of effectiveness of said reforms.
Previous literature has also focused on the peremptory challenge phase of jury
selection. Marvin Steinbergs 1991 research discusses eliminating peremptory
challenges and provides an historical perspective surrounding the consequences of the
U.S. Supreme Courts decision in Batson v. Kentucky. Brian Serr and Mark Maney
provide a detailed article on possible racial bias in peremptory challenges and outline
strategies employed in balancing the requirement of equal protection with peremptory
2


challenges (1988). Shari Diamond (1990) and Mitzi White (1995) each examine the
relatively new area of scientific jury selection.
Literature addressing specific trials contributes to an understanding of racism
and juries for this research (Bowers, W. and Pierce, G 1980; Field, H. 1979;
Kennedy, Tracy; Kennedy, Judith; Abrahamson, Alan 1995). Several pertinent pieces
of literature cover the history, process, and procedures of jury selection and help to
illuminate some shortcomings in the process (Abbot, Walter F. and Batt, John 1999;
Abramson, Jeffrey 1994; Fukurai, Hiroshi 1999; Jonakait, Randolph N. 2003;
Ramirez, D. 1994; Ziesel, Hans 1972).
Finally, a good deal of literature investigating racial implications of juries
and the jury selection process exists (Benokraitis, Nijole 1982; Benokraitis, Nijole
and Keene-Griffin, Joyce A. 1982; Denno, Deborah 1981; Fukurai, Hiroshi; Butler,
EdgarW.; and Krooth, Richard 1991; Johnson, S.L. 1985; Leipold, Andrew D. 1996;
Rose, Mary R. 1999). Nijole Benokraitis (1982) evaluates qualifying norms enlisted
in the jury selection process using questionnaire surveys distributed among courtroom
staff to determine that African Americans are underrepresented during several phases
of jury selection.
Mary R. Rose (2005) compiles data from 194 interviews of excused and
selected jurors to evaluate how jurors and prospective jurors view the jury system.
Rose further conducts research based on jury selection observations. She observes 13
3


criminal trials and assesses racial and gender implications based on peremptory
challenges. Roses findings contradict those in the present research. The population
in the county where Roses data were collected is 37% African American and African
Americans make up 32% of those questioned in the peremptory challenge phase.
Denver Countys African American population is approximately 11% and those
questioned in the peremptory challenge phase are 12% African American. This may
account for the contradictory results between the studies. In addition, Rose does not
mention the instruments employed in her study that may contribute to an
understanding or explanation of the difference in results.
The deficiencies in the literature on jury selection primarily rest in the lack of
research based on actual courtroom observations. Other than Roses research, no
other analyses of courtroom observations during jury selection appear to have been
conducted comparing initial panels with seated panels. Although Rose provides
racial and gender breakdowns based on peremptory challenges; she neglects to
include data on the makeup of the courtroom participants. Rose does not document
the types of questions asked by the attorneys or their race and gender. Finally, none of
the previous literature reviewed for this research attempts to make use of theory as a
means to help explain the dilemma of racism in our culture that may manifest itself in
under-representation of African Americans on juries. Anthony Giddens
Structuration theory emerges as a good fit for this research since analysis concerning
4


structure, agency, and the reproduction of systems of interaction are evidenced in the
culmination of the data.
The dearth of documented courtroom observations during jury selection
keeps the process protected from scrutiny and contributes to the perpetuation of
practices that may result in non-representative juries for minority defendants. All
parties involved in the judicial system as well as the general population will benefit
from exposure of the jury selection process.
Purpose of the Study
This research employs a concurrent transformative mixed methods research
design (Creswell, 2003, p. 219) guided by Anthony Giddens Structuration theory.
This design facilitates the use of quantitative, demographic data collection and
analysis as well as the incorporation of the researchers observations outside of the
quantitative constraints to support Giddens theoretical perspective. The goal of this
research is to gain an understanding of the racial issues evidenced in jury selection
through the lens of Giddens Structuration theory. The mixed method design fits well
with the research as it shines a unique light on jury selection by creating a well
rounded, in-depth assessment of the process and illuminating the issues of racial bias
that contribute to under-representation of African Americans on seated juries.
5


I apply quantitative evaluation and analysis of variables documented during
13 jury selections in the Denver County District Court. I record data for the
independent variables race, gender, education, criminal history, interviews with
judge, and history as a witness for analysis and comparison between the initial jury
panel and the seated panel (dependent variable). I document independent variables
for all courtroom staff to provide a clear picture of the makeup of the courtroom
players during the jury selection process.
I gather qualitative data concurrent to quantitative data collection based on the
compilation and interpretation of notes taken during the 13 observed jury selections.
I further examine data from both phases of collection with an emphasis on the
quantitative data for evidence of racial bias in the jury selection process. The
qualitative data illuminate nuances in racial bias practices that help support and
explain relationships discovered in the quantitative phase. I further provide a
synthesis of the three approaches within Giddens theoretical framework (Figure 1).
The two instruments used (Appendix A and B) ensure reliability in the quantitative
data collection. I utilized the same instruments in an exploratory research project
conducted in the Denver District Court in 2004-2005 to help establish reliable data
collection procedures for the current research. Detailed accounts of the jury
selections written immediately after the observations ensure reliability. All three
phases of data collection emerge as valid towards the understanding of racial bias
6


during the jury selection process and each phase represents a unique perspective from
which to support Giddens Structuration theory.
Anthony Giddens Structuration Theory
Orlando Patterson Domination: - Authoritative Resources - Authoritative Control by the White Majority
Independent Variables Dependent Variables
Race Facility: Excused for cause Capacity
Gender - Participation in the Judicial Prosecution Peremptory System Challenge
Education
Criminal History Defense Peremptory Power: Challenge Agency
Interview with Judge - Racial Bias During Seated on the Final Jury Selection Jury
History as a Witness
Figure 1: A Visual Presentation of Research Plan
7


Theory Link
Giddens developed Structuration theory in response to what he considers the
limitations of the duality between structure and agency in previous social theory.
Giddens explains that Structures are created by humans, but they, in turn, constrain
and enable human action (Kivisto, 1998, p. 148). According to Giddens, both
agency and structure interact, facilitating an affect of one upon the other: The
structural properties of social systems do not exist outside of action but are
chronically implicated in its production and reproduction (Giddens, 1984, p. 374).
The term Structuration refers to the act of creating and responding to structure
through agency. Giddens Structuration theory centers on his belief in the
contribution of agency towards the process of doing and/or producing structure:
.. .every social actor knows a great deal about the conditions of reproduction of the
society of which he or she is a member (Giddens, 1979, p. 5).
Structuration theory exists as a circular and recursive exchange between
agency and structure that inevitably creates social processes. Giddens disagrees with
the traditional duality that exists between the subjective and objective in both
structure and agent in most social theory (Stones, 2005, p. 6) and emphasizes the
...mutual dependence of structure and agency (Giddens, 1979, p. 69).
8


STRUCTURE signification domination legitimation
(MODALITY) interpretive scheme facility norm
INTERACTION communication power sanction
Figure 2: Structures as Employed in Social Practices
(Giddens, 1979, p. 82 emphasis added)
Figure 2 illustrates an interplay between Structure (the social systems:
signification, domination, and legitimation) and Interaction (action of agents
manifested in communication, power, and sanction). The term Modality in
Giddens model serves to ...clarify the main dimensions of the duality of structure
and interaction (Giddens, 1984, p. 28), by enlisting interpretive schemes, facilities,
and norms. Rob Stones (2005) explains that ...Giddens sees agents not only as
always rooted in a structural context, but also as always and inevitably drawing upon
their knowledge of that structural context when they engage in purposeful action (p.
17). Although complex interchanges among dimensions occur, the modality of
facility exists as a necessary element for enabling power (through agency) to draw on
domination. This research examines the relationship between the structural domain
of dominance and the interaction domain of power accessed through the modality of
facility by employing data garnered through observations of the jury selection
process.
9


Giddens dimensions of structure fall into two categories: rules and resources.
For the purpose of the present research, I focus on the structural dimension of
domination, which in Giddens theory exists as resource-based. In Structuration
theory, resources emerge as either authoritative (control of people) or allocative
(control of material objects). The interaction dimension of power exists as the action
that occurs when the modality dimension of facility connects structure with
interaction, manifesting itself in the action taken by the agent within a social system.
Giddens further considers facility, in relation to authoritative resources, as the
capacity for an actor to contribute towards reproduction or change of structure.
Previous research testing Giddens Structuration theory include Ogden and
Randalls (2005) investigation into the waning participation of African Americans in
baseball; Gross and Simmonss (2002) research on intimacy; and research in the
economic and IT environments. The present research attempts to illustrate Giddens
Structuration theory through examination of Orlando Pattersons dissertation on
slavery and its consequences, as well as through analysis of jury selection
observations. I hypothesize that the social system of domination stemming from
authoritative resources controlled by the dominant white majority will facilitate
participation in the judicial system (specifically jury selection) manifesting in the
power to implement racial bias (action) during the jury selection process (Figure 3).
10


DOMINATION
(authoritative resources)
Orlando Pattersons consequences of slavery
FACILITY
(capacity)
Participation in the judicial system
POWER
(structures translated into action through agency)
Racial bias during jury selection
Figure 3: Structuration Theory and Jury Selection Research
By incorporating Orlando Pattersons comparative study on slavery and its
consequences (1982, 1998) with Anthony Giddens Structuration theory, I hope to
get under the skin of modem racism by providing a deep, meaningful, and
substantive portrait. I do not mean to minimize the strides we have made as a nation
in combating racism, but rather to help gain a richer understanding of the ever-
present, persistent, and underlying aspects of racial bias.
In order to gain an understanding of jury selection and its relationship with
racism, it is important to put it in historical context. In doing so, a pattern of
legislative attempts to curb racial bias within the jury system becomes evident and
11


support the prospect that an ongoing cycle exists between authoritative structures in
the judicial system and the power exerted over minorities within the system. To this
end, a substantial amount of the following literature review addresses historical
legislation surrounding the process of jury selection.
12


CHAPTER 2
REVIEW OF THE LITERATURE
Jury Selection: An Historical Context
The origin of the jury system in the United States stems from England and
Common Law. Trial by jury began to gain popularity in England replacing trial by
ordeal whereby various forms of torture were implemented to determine the guilt or
innocence of a defendant. The initial path towards jury trials began with the use of
individuals called compurgators in A.D. 900. Each side in a civil suit could select
18 compurgators, usually friends, and the 36 would decide the question (Abbott and
Batt, 1999, p. 2-1). Compurgators might be called in to judge a non-notorious
defendant charged with a non-violent crime. Twelve or so compurgators were called
in by the defendant to speak to his credibility (Abbot and Batt, 1999, p. 2-1). The use
of jurors in criminal trials evolved from this practice.
Early jury responsibilities included determining the law as well as evaluating
the facts of the case. The basis for the evolution of the jury in the United States is
seated in Article III, section 2 of the constitution: The Trial of all Crimes, except in
Cases of Impeachment; shall be by jury. Amendment VI to the Constitution further
empowers the jury: In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury. The phrase a jury of ones peers does
13


not appear in any portion of the Constitution, but finds its basis in England Common
Law.
By the end of the nineteenth century, the jury lost substantial support and
respect from the public primarily due to outrageous verdicts and settlements in civil
cases (Abbot and Batt, 1999, p. 2-4). In response, judges in most states took from
both civil and criminal juries the power to determine law (Abbot and Batt, 1999, p.
2-3). Proponents appealed for an amendment to restore the determination of law back
to the criminal jury. This appeal addressed the concerns that juries should not be
expected to uphold a law that they believed might go against natural law or justice.
In 1855 a statute passed giving the power back to the criminal juries to determine law.
In the case of Commonwealth v. Anthes (1855) Lemuel Shaw reaffirmed the right of
the criminal trial judge to give binding instructions on the law to the jury (Abbot and
Batt, 1999, p. 2-5). In Sparfv. United States (1895) the Supreme Court made a
critical decision and adopted the Porter-Anthes precedent for the federal judiciary,
marking the almost universal demise of the criminal jurys law-finding powers
(Abbot and Batt, 1999, p. 2-5). By the end of the nineteenth century only Indiana and
Maryland gave the jury the right to find the law. The transition of the jury from
determiners of law to interpreters of the facts emerges as the first in a series of
reforms that would ultimately limit the power of the jury.
14


The Supreme Court, legislatures, and constitution makers gave some power
back to the jury in the nineteenth century by limiting the rights of judges to comment
on evidence. This trend reinforces the Distinction between law-finding functions of
the judge and the fact finding of the jury (Abbot and Batt, 1999, p. 2-5). By the end
of the century two thirds of the states had abolished the right of judges to comment on
evidence and the right of fact-finding became almost exclusively that of the jurys.
However, loss of a jurys power to determine law led to their general loss of prestige.
By the nineteenth century the public increasingly considered criminal juries as
soft on crime. At the same time, juries awarded plaintiffs in civil cases exorbitant
rewards while taking longer amounts of time to rule, culminating in the common
practice of settling cases out of court. Reforms emerged to counteract lengthy
deliberation processes, including allowing cases to be decided by non-unanimous
juries (Abbot and Batt, 1999, p. 2-5). Gradually, the once sacred institution of a trial
by jury appeared to be losing ground.
The realization by the public of a weakness in determining membership
contributed to a growing loss of faith in the jury process. The industrial revolution
spawned higher crime waves in cities leading to criticisms of the criminal judicial
process as ineffective and permissive. Extremely forgiving juries appeared in the
nineteenth century and routinely found obviously guilty defendants innocent or
excused their crimes completely. Juries supported their decisions by excusing
15


defendants using a state of delirium or self defense rationalization. In other
instances juries might find an obviously guilty individual guilty of a much lesser
crime (Abbot and Batt, 1999, p. 2-6).
The deficiencies in the nineteenth century jury selection methods stemmed
from the selection of both the jury pool and the seated jury in particular trials.
According to Abbot and Batt (1999) methods of gathering jurors reportedly had
shortcomings in both form and execution (p. 2-6). Bystanders might be gathered by
sheriffs who could deem anyone with twenty pounds to their name acceptable.
Unease surrounded this method of selection due to the possibility that unqualified
jurors might be left to administer law. In response, appointed commissioners
compiled names of acceptable jurors from tax and voting lists (Abbot and Batt, 1999,
p. 2-7). Police often ignored the lists opting instead to select potential jurors from
courthouse bystanders. A fine might be paid as a method for avoiding jury duty. This
became a common occurrence resulting in the necessary use of courthouse bystanders
to stand as the jury pool. Often these bystanders consisted of desperate members of
society who hoped for a warm place to spend the day or for some other form of
compensation.
Evasion emerged as a common practice by potential jurors in the nineteenth
century. Many citizens shirked their duty to jury service. Complaints in Kentucky,
New York, Missouri, Mississippi, New Jersey, Massachusetts, and Ohio were
16


believed to reflect most other states in the nation concerning poor representation on
juries. Judge R. A. Hill of Mississippi wrote the editors of the Central Law Journal
in 1874 complaining that sheriffs and their deputies routinely select loafers and other
professional jurors instead of more responsible men (Abbott and Batt, 1999, p. 2-8).
Abbott and Batt (1999) suggest a national inattention to jury service (p. 2-8) during
this time and claim that even if professionals and businessmen appeared on the list,
they often received exemptions from serving.
Although evasion of service remained a problem in the nineteenth century
jury system, other obstacles existed. Namely, the difficulty in convicting a defendant
due to the fact that common law prosecution had zero peremptory challenges while
the defense might have as many as 35. This practice of providing the defense with a
disparagingly large amount of challenges left the prosecution with no means to
eliminate jurors suspected of perjury or bias. Abbott and Batt (1999) quote an
experienced Kentucky trial lawyer from 1849: men are placed upon the jury,
sometimes upon their mere allegation that they have formed no opinion in the case,
and who go there determined to acquit the accused (p. 2-8). In 1855, A. Oakey
Hall, district attorney for New York City, contended that as few as two peremptory
challenges for the prosecution would help prevent the defense from packing the jury
with friends; an all-too frequent practice under the existing system (Abbott and Batt,
1999, p. 2-8).
17


Reforms addressing the selection process of juries in the nineteenth century
mainly revolved around the use of peremptory challenges for both the defense and the
prosecution. Early reforms allowed the prosecution two peremptory challenges in an
attempt to prevent the defense from eliminating .. .from all panels every man of
force and character and standing in the community, and to assemble a collection in
the jury box of nondescripts of no character, weak and amenable to every breeze of
emotion, however maudlin or irrelevant to the issue (Taft 1905). Both New Jersey
and New York implemented the practice of even amounts of peremptory challenges
for the defense and the prosecution, but most other states did not. In the absence of
addressing the unbalanced use of peremptory challenges, new attempts for updating
the peremptory challenge process continued into the early twentieth century.
In the case of People v. Mather (1830), the Supreme Court ruled that
a prospective juror was disqualified if he had formed an impression of
the guilt or innocence of the defendant from reading the newspapers,
even though his opinion was not fixed and might be changed as a
result of evidence introduced at the trial.. .trial courts in a number of
states often invoked the most extreme version of the Mather case,
allowing disqualification for any opinion formed from the reading of
newspapers
(Abbott and Batt, 1999, p. 2-9).
This practice led to mass eliminations of jurors. In the antirent trials of 1845, just ten
jurors out of four thousand qualified to sit on the jury. In the tradition of trying to
shirk jury duty, many prospective jurors attempted to read newspapers or find any
18


information possible (i.e. from lawyers involved in the case) to disqualify themselves
from jury duty. As a result of the Mathers ruling, juries often consisted of the lowest
level of society. A. Oakey Hall stated that either newspapers would have to be
abolished or intelligent men could never serve on juries (New York Times, Dec. 15,
1855). According to Abbott and Batt (1999)
Between 1864 and 1880 some states including Connecticut, Illinois,
Indiana, Iowa, Maryland, Michigan, New Hampshire, New York,
Ohio, and Pennsylvania, by statute and court decision modified the
rule so that a prospective juror could serve on a jury even if he had
formed an opinion about the guilt or innocence of the defendant from
reading the newspapers, as long as he swore that he would base his
decision in the case solely on the evidence presented therein
(p. 2-10).
This ruling, combined with the number of peremptory challenges allowed by the
defense and the less than enthusiastic willingness of educated citizens to serve as
jurors, resulted in easily packing the bystanders with individuals sympathetic to the
defenses cause who would then be available when the regular jury panel was
eliminated. As Abbott and Batt (1999) explain
Even if the defense did not deliberately seek to place venal men on the
jury, the so-called professional jurors, the courthouse loungers with little
visible means of support who needed the paltry jury fees to survive, were
readily available for service and too often formed a part of the jury
(p. 2-10).
The unstable basis for selection of juries in the nineteenth century contributed
to an outbreak of vigilantism in the United States (Abbott and Batt, 1999, p. 2-11).
19


Most attributed the outbreak directly to the inadequacy of the jury. As a result, the
following radical jury reforms were called for: 1) eradication of peremptory
challenges 2) disposing of the unanimous jury requirement 3) implementation of elite
juries devoid of loungers, loafers, and courthouse bums (Abbot and Batt, 1999, p.
2-11). By the late nineteenth and early twentieth centuries some of these jury reforms
had been implemented. Juries consisting of six members were allowed (although
juries of this size had to be unanimous), non-unanimous juries in misdemeanor and
non-capital felony cases were utilized, and judges emerged who took more control
over the voir dire process. Some states reduced the number of challenges allowed. In
the twentieth century the power to determine sentences was taken away from the jury
in many instances with the exception of death penalty cases.
Although debate concerning the validity of juries and the need for jury reform
continued, the fact remained that the jury itself was losing importance. Following the
Civil War, prosecutors began to plea bargain, leading to a drastic drop in the amount
of cases making it to a jury trial.
Crowded dockets, longer trials due to an emphasis on due process, the rise of
modem police forces and an attendant increase in arrests, and the emergence
of modem prosecutors vitally interested in achieving winning conviction
records had more to do with this development than dissatisfaction with the
jury system. But the result was a dilution of the significance of the jury
(Abbott and Batt, 1999, pp. 2-11 and 2-12).
20


The participation of women and minority groups continues to exist as an
important consideration in addressing the fairness of jury selection and
representation. Until the twentieth century jurors were predominantly white, adult
males. In 1898, Utah became the first state to allow female jurors. Women received
the right to sit on juries with the ratification of the nineteenth amendment in 1920, but
their participation remained theoretical rather than actual. Some states required
women to affirmatively register to serve on juries; consequently, jury panels were
overwhelmingly male. The Supreme Court did not invalidate this practice until
1975 (Abbott and Batt, 1999, p. 2-13).
Similarly, only one northern state allowed African Americans to serve on
juries before the Civil War. In post Civil War United States, all states allowed
African Americans to serve on juries, but in practice and due to the high level of
racism that existed, mostly all white, male juries prevailed well into the 1930s. This
fact contributed to harsher treatments of African Americans in the criminal justice
system. In 1975, the Supreme Court ruled that criminal defendants had a
constitutional right to a jury drawn from sources representative of all segments of the
community (Taylor v. Louisiana, 1975).
The Taylor decision remains as a critical ruling; however, an important
distinction exists between the requirement that a jury must be drawn from
representative sources and a requirement that the seated jury reflect such standard.
21


With the adoption of the United States Constitution, all but one state allowed only
men with property or who paid taxes to serve on juries. Three states allowed only
white men to sit on juries and one state disqualified atheists. By the second half of
the nineteenth century, all citizens allowed to vote could also sit on juries. Jury pools
thus grew to include all white, male citizens.
Although the Fifteenth Amendment gave African Americans the vote, it did
not address jury pool participation specifically. The Supreme Court held in Strauder
v. Virginia (1880) that a state statute expressly prohibiting black people from jury
service violated the equal protection clause of the Fourteenth Amendment (Jonakait,
2003, p. 115); therefore, African American men could not legally be kept out of jury
pools. However, the court concluded that a state could
prescribe the qualifications of its jurors...It may confine the selection
to males, to freeholders, to citizens, to persons with certain ages, or to
persons who have educational qualifications. We do not believe the
Fourteenth Amendment was ever intended to prohibit this...Its aim
was against discrimination because of race or color
{Strauder v. Virginia, 1880).
In other words, African Americans could not be kept out of the jury pool because of
race, but other qualifications could be mandated that would effectively eliminate them
from the pool. The Strauder decision also held that eligibility could be restricted to
men.
22


Although women earned the right to vote in 1920, only some states
automatically granted them eligibility to sit on juries while many others did not
permit this until decades later. The belief that women needed protection from the
corrupting influence of trials prevailed into the twentieth century. Considered too
emotional with an inability to remain rational and as necessarily obligated to stay
home and take care of domestic chores, womens exclusion from jury participation
continued. Some states held that exemptions must be claimed by women and other
states permitted women on a volunteer basis only. As late as 1961, when women
could serve on juries in forty seven states, they had to volunteer in nineteen of those
forty seven in order to be eligible (Jonakait, 2003, p. 116).
In the nineteen forties, the Supreme Court held that jury pools from which
juries were selected had to represent a fair cross section of the community (Glasser
v. United States, 1942) and in 1946 the Supreme Court invalidated jury selection
procedures that excluded day laborers and women (Thiel v. Southern Pacific, 1946).
In 1961 the Supreme Court upheld a state system in which women were eligible for
juries only if they volunteered (Jonakait, 2003, p. 117). Duncan v. Louisiana (1968)
held that the Sixth Amendment applied to the states (Jonakait, 2003, p. 117) and
finally in Taylor v. Louisiana (1975) the Supreme Court made a pivotal ruling and
confronted Louisianas jury selection system, which did not disqualify women from
service but required them to file a written declaration of their desire to serve (Taylor
23


v. Louisiana 1975). As a result of Louisianas requirement for women, less than ten
percent of the jury pool was female. With only William Rehnquist dissenting, the
Court held that this system denied the defendant his right to a jury trial as
constitutionally guaranteed by the Sixth Amendment (Jonakait, 2003, p. 117).
Taylor was the first case to note that federal jury pools had to be representative of a
cross section of the community (Jonakait, 2003, p. 117). Since women represented a
large portion of the population, excluding them amounted to violating the cross
section requirement. The most important distinction remains between the courts
requirement that jury pools satisfy the cross section requirement and not that the
seated jury satisfies the requirement. In practice, the possibility to get a jury of six to
twelve citizens to accurately represent a cross section of the community remains
unlikely. Taylor establishes that potential jurors who arrive to be selected from should
fairly represent the community. To achieve this representation of the community in
jury pools, a list that fairly represents the community should be used to randomly
select a jury pool from. In addition, Taylor only applies to criminal trials.
The fair cross section requirement established in Taylor
does not require the representation of every imaginable societal
segment. Instead, the group must be large and distinctive. We
know that women are covered, as are racial groups, but it is not clear
what other slices of the community must be fairly represented. The
defining test is hardly precise, but for a group to qualify for the
requirement, it must be identifiable and its under representation must
24


affect the jurys ability to act as a check on governmental oppression
and to preserve public confidence in our criminal justice system
(Jonakait, 2003, p. 120).
For instance, courts have determined that Native Americans, Jews, and Mexican
Americans fit the fair cross sectional criteria. However, groups such as white collar
workers, blue collar workers, single moms, etc., do not. Exclusion from the jury pool
is allowable if the exclusions are narrowly tailored to serve legitimate societal
interest (Jonakait, 2003, p. 120). Randolph Jonakait (2003) uses the example of
women and childcare by explaining that excluding all women because they need to
care for children would be too broad, but allowing for those individuals who do have
to care for children to be excluded is narrowly tailored enough to be allowed
(p.120).
Although the Fourteenth Amendment provides for the equal protection
clause this clause is not broached unless it can be proven that a specific group was
discriminated against by the government or a government official. Therefore, the
example of making women volunteer for jury duty does not qualify under the equal
protection clause because, in this instance, women are not necessarily being
discriminated against. However, according to Jonakait a practice like this could lead
to a systemic condition of a defendant not having a fair cross section of the
community in the jury pool. The fair cross section ruling is an integral part of
modernizing the jury system. By placing the responsibility on the government to
25


provide jury pools that reflect the community, women and African Americans must
(theoretically) be present in jury pools in numbers that correlate to the community.
In the early days of jury trials, before the fair cross section requirement, trial
judges would ask the sheriff to round up the necessary amount of people from which
to select a jury. The decision of who the sheriff would bring in remained entirely up
to him. This led to potential bias and unfairness based on the sheriffs motives. The
cross section requirement ensures at least the possibility that a random selection of a
cross section of the community will make up the jury pool. At one time, key-men
lists could be comprised by political and civil leaders such as the head of a service
organization, the chamber of commerce, or other community bodies (Jonakait, 2003,
p. 121). These jury pools ended up reflecting the men who chose them; that is well
educated, affluent, and white. In this case all white jury pools emerged virtually
eliminating African Americans from the jury pool. The key-men method of jury
pool selection prevailed in approximately thirty percent of the United States until the
ruling for the fair cross section requirement.
The fair cross section requirement led to the abandonment of blatantly bias
practices in keeping African Americans out of the jury pool, but neglected to address
subtle methods of bias in jury selection. In Florida the jury commissioners collated
jury pool lists using the requirement that
26


only such persons as the selecting officers know, or have reason to
believe, are law-abiding citizens of approved integrity, good character,
sound judgment and intelligence, and who are not physically or
mentally infirm, shall be selected for jury duty. This discretion was
widely used for keeping blacks off juries. Charged with finding black
men of integrity, good character, sound judgment and intelligence in
a segregated state in which whites assumed that none of these qualities
were characteristics of blacks, jury commissioners throughout the
South regularly placed in jury pools only the names of a handful of
black ministers, funeral directors, and perhaps a shopkeeper or two,
and assumed that the entire African American community was
therefore represented on the jury
(Jonakait, 2003, p. 122).
The fair cross section requirement does not eliminate all restrictions
concerning jury pool selection. As long as the restrictions do not lead to under
representation of a certain aspect of the community and the government can ...show
that the exclusionary practices are no broader than necessary to serve a valid
governmental interest (Jonakait, 2003, p. 122), the restrictions may be applied. The
cross section requirement contributed to the elimination of blue ribbon juries
selected for trials with particular intricacies which demanded a more educated jury
pool. New York used blue ribbon juries until 1965 when the practice was repealed.
Some proposals for specialized juries still occur. For example, the contention that a
jury should be racially appropriate for specific trials, thus ensuring the concept of a
jury of ones peers has been proposed, but deemed to go against the fair cross
section requirement. One approach to achieving a fair blue ribbon jury suggests
keeping the fair cross section jury pool and choosing the elite from that pool.
27


Although no mandate has emerged to establish this, Jonakait (2003) explains that it
can be implemented with the parties consent (p. 124). Pros and cons exist in the
blue ribbon approach. Studies reveal that the more educated a juror, the longer the
deliberations. However, the lack of diversity may hurt the process as Varied life
experiences, perspectives, and values in the group may result in a more wide-ranging
discussion and increased understanding of the behaviors involved (Jonakait, 2003, p.
125).
Ultimately, the fair cross section requirement is difficult to achieve. Usually
the jury pool lists are obtained from voter registration lists (ROV) which do not
represent all individuals who may be valuable to jury trial process. Non registered
voters are more likely to be a member of a minority group, leaving voter registration
lists lacking in a fair, proportional representation of minorities eligible for jury
service. Alternatives to limiting the jury pool to voter registration lists include using
tax files, licensed drivers lists, public assistance records, and state unemployment
recipients (Jonakait, 2003, p. 125). The fair cross section requirement has helped to
make the jury pool more representative of the community by including more
minorities and women and by increasing the variety of potential jurors educations,
social economic status, and occupations. However, the democratization of jury
pools remains controversial. Race and gender issues contribute to the distrust of
juries. This distrust emerges as a growing trend in the United States.
28


Four years after Taylor, in the case of Duren v. Missouri (1979)
.. .the court held that a violation of the fair cross section requirement
was established when a defendant showed: that the representation on
jury pools of a distinctive group in the community was not fair and
reasonable in relation to the numbers in the community; that this
under representation was due to systematic exclusion of the group in
the jury process; and that the state had not shown a significant state
interest to justify the exclusion
(Jonakait, 2003, p. 118).
Other jury reforms emerged in the twentieth century including the option of
bench trials. By 1960, every state, as well as the federal government, permitted
defendants to waive trial by jury and opt for trial by judge only (Abbott and Batt,
1999, p. 2-12). This policy resulted in a severe reduction in the number of jury trials.
Jeffrey Abramson explains that between plea bargaining and bench trials less than
five percent of state criminal cases were resolved by jury trials (Abramson, 1994, p.
253) by 1988. In one major city, juries tried only two percent of felony cases due to a
sentencing policy that gave defendants, after conviction by a jury, on the average
more than twice the sentence they had been offered (and refused) for a guilty plea.
By the late twentieth century, many considered modem juries as
incompetent, prejudiced, and at war with the law (Abbott and Batt, 1999, p. 2-12).
The perceived practice of jury nullification contributed to an overall distrust of the
jury system even though the facts from recent studies undercut the validity of these
impressions (Abbott and Batt, 1999, p. 2-12). Jury nullification is the power a jury
29


has to disregard the law and acquit a guilty defendant (Jonakait, 2003, p. 245).
Abbott and Batt (1999) suggest that nullification occurs as a result of the jury seeking
justice rather than a literal and harsh application of the law (p. 2-12). Jonakait
(2003) explains that jury nullification is often following public opinion, not creating
it (p. 255). According to Andrew Leipol no examples in which frequent
nullifications created dissatisfaction with the law; exist and that at best,
nullification has reflected discontent that was already in place (p. 126).
Voir Dire
Voir dire exists as an invaluable tool in the jury selection process. The judge
and attorneys use voir dire to gain information about prospective jurors. This
information aids in eliminating prospective jurors with a bias in the case. The
attorneys usually have a time limit established by the judge for their questioning. The
attorneys ask questions in an attempt to gain further insight concerning prospective
jurors. The judge may dismiss jurors for cause and the attorneys dismiss an
established number of jurors for any reason other than race or gender. In Denver
District Court, civil and misdemeanor trials typically allow for each side to eliminate
four potential jurors during the peremptory challenge phase and criminal trials allow
for each side to eliminate six potential jurors.
30


During the peremptory challenge process, The prospective jurors are
questioned to find out whether they can be impartial in the particular case being tried
and to obtain additional information that attorneys may use in exercising peremptory
challenges (Jonakait, 2003, pp. 128-129). In the United States, every jury trial
involves some voir dire It is constitutionally required in criminal cases in order to
meet the Sixth Amendment requirement that jurors be impartial (Jonakait, 2003, p.
129). However, in Great Britain both voir dire and peremptory challenges have been
abolished. Some experts believe that the abolition of these processes may lead to a
more democratic jury that more accurately reflects the undiluted product of random
selection, but whether or not its members are biased is virtually impossible to
determine (Gobert, 1997, pp. 144-145).
The implementation of voir dire varies from courtroom to courtroom. For
example, potential jurors may be asked questions in groups or individually. The
Constitution leaves the specific procedures for voir dire up to the trial judge to
determine. No specific grounds for possible bias or what specific questions should be
asked exist. The sole constitutional requirement sates that potential jurors be asked
generally about their ability to be impartial (Jonakait, 2003, p. 129). However,
Specific questions about racial prejudice must then be asked, but even so, no more
than perfunctory questions about race addressed to the entire panel are
constitutionally necessary and then only when race permeates the case and the
31


mere fact that the crime is an interracial one does not give rise to the constitutional
duty to voir dire about racial bias (Janakait, 2003, p. 129).
The leeway given in the voir dire process allows for vast variation from
jurisdiction to jurisdiction with some courts using the voir dire process excessively
and some barely at all. Voir dire varies exceedingly depending on who does the
questioning.
In about one-third of the states and the federal courts, the trial judge
has the discretion to conduct the questioning or permit the attorney to
do so; in another third, the attorney has control over the process; and in
the remainder, the court examines the prospective jurors with the
attorneys supplementing the questioning
(Jonakait, 2003, p. 130).
In this research, both the judges and the attorneys participated in the voir dire
process. One study claims that the voir dire process takes up to 40% of the
total trial time when attorneys conduct the questioninga major consideration
taking into account that long jury selection tends to draw a significant amount
of criticism from the public. The lengthy time used by attorneys has several
benefits including the indoctrination, socialization, and education of
prospective jurors (Jonakait, 2003, p. 130).
Voir dire emerges as a vital component to jury selection. First of all, the
judge has wide discretion concerning the questioning process; second, jurors are less
likely to expose bias when they are questioned as a group; third, potential jurors may
32


use the voir dire process to abuse the system (for instance, if they do not want to
serve, they may express existing or non-existing biases in the hope of being
eliminated). Attempting to get excused from jury duty remains the most common
reason for dishonest answers by potential jurors during voir dire; although, failure to
report a bias emerge as a greater problem than claims of potential bias. People find it
difficult to admit bias in public, preferring to appear fair minded. In addition, judges
elicit fewer reports of bias than do attorneys. According to most studies, lawyers do a
better job of eliminating biased jurors:
The most frequently discerned reasons: One, lawyers, because of their
superior knowledge of the case, ask better questions, on the whole,
than do judges; two, jurors tend to be in awe of judges or fear them
and may try to impress them with fair-mindedness; that sharp
questioning from an attorney would disprove
(Jonakait, 2003, p. 132).
How questions are asked during voir dire may be as important as what
questions are asked. If a juror initially says they have some bias, a judge may direct
an are you telling me you cant be unbiased? question towards them at which point
a juror may become intimidated and change her mind. Since the various forms and
practices of voir dire vary dramatically from trial to trial, little consistency exists by
which to judge whether a juror will confess to a bias or not.
A juror may be excused due to a hardship. These include: taking care of an
invalid, a long planned trip, being a student during finals, work conflicts, or various
33


other excuses. Judges have discretion based on information acquired during voir dire.
Naturally, the estimated length of a trial has a significant impact on whether jurors
will attempt excusal, potentially leading to a less representative jury. This may result
injuries that consist of unemployed, retired, female, less educated, and unmarried
individuals (Jonakait, 2003, p. 134). Request for hardships are usually granted as
neither the judge nor the attorneys want a juror seated who either does not want to be
there or resents being there; at times as many as half of the potential jurors get
excused based on hardship. However, the jury selections in this research reflect a
decidedly hard nosed approach by the judges who typically did not excused jurors for
hardship.
A challenge for cause occurs when a juror cannot be impartial. If they are
related to the defendant, if they will be called as a witness, if pretrial publicity has
influenced them, if they have a strong opinion concerning law enforcement, if they
believe the law is wrong, etc., they can be excluded for cause. Attorneys may
challenge for cause Any potential juror who they believe cannot be impartial
(Jonakait, 2003, p. 135). When this occurs, the trial judge must determine whether
the potential juror should be excused. United States law considers the trial judge,
who has seen and heard the voir dire, to be in the best position to determine whether a
challenge for cause should be granted and it gives the trial judge broad discretion in
34


deciding whether in these and myriad similar circumstances potential jurors should be
excused (Jonakait, 2003, p. 135).
The Supreme Court found that a juror may be dismissed if he cannot return a
death sentence in a capital case, but not because they expressed a scruple against
the death penalty (Jonakait, 2003, p. 136). In order to be removed for cause the
potential juror must convey that her views concerning the death penalty would
prevent or substantially impair the performance of his duties as juror in accordance
with his instructions and his oath (Jonakait, 2003, p. 136). Therefore, if a juror
cannot impartially consider the death sentence he can be removed for cause. If
the same jury determines both guilt and sentencing, then this juror is removed from
both. This poses some questions as to the fairness of excluding jurors from the trial
phase based on their beliefs concerning the death penalty, considering studies have
revealed that pro death penalty juries are more likely to convict. In the case of
Lockhart v. McCree (1986), McCrees attorneys relied on these studies contending
that a death-qualified jury deprived him of his constitutional right to an impartial jury
for the determination of guilt (Jonakait, 2003, p. 136). Ultimately, the Supreme
Court rejected this argument stating that seating a jury with shared attitudes was not
the same as representing a fair cross section requirement. The Court maintained that
even if it were shown that death-qualified juries are somewhat more conviction-
prone the accusers right to an impartial jury to determine guilt is not violated
35


(Jonakait, 2003, p. 173). A solution to this dilemma might be two separate juries for
trial and sentencing. This scenario remains unlikely due to the investment in time and
money involved in presenting a case twice.
Peremptory Challenges
The peremptory challenge acts as the final step in the jury selection phase of a
jury trial. Peremptory challenges begin after the rulings on challenges for cause.
Any potential juror may be excused during the peremptory challenge phase for any
reason except solely on the basis of race or gender. The attorneys need not provide an
explanation for excusing a potential juror. Challenges for cause are unlimited in
number since their purpose is to insure an impartial jury (that is every biased person
should, theoretically be excused for cause); peremptory challenges are always
limited in number. The number allowed on the side of the defense and prosecution
varies from jurisdiction to jurisdiction and by type of case. In federal criminal trials,
each side has twenty challenges for capital cases and three for misdemeanor cases.
For other felonies, the prosecution is allowed six and the defense is allowed ten
(Jonakait, 2003, p. 139). However in New York, each side is allowed the same
amount, but they vary from three to twenty depending on the category of the case
(Jonakait, 2003, p. 139). In the present research, six challenges are allowed on each
36


side in felony trials and five on each side are allowed in civil and misdemeanor jury
trials. Peremptory challenges apply to all civil and criminal jury trials.
The peremptory challenge process usually begins by picking twelve jurors
from the pool that will then go through voir dire questioning after which one or more
individuals may be excused for cause. Following this, the prosecutor can challenge
any of the remaining potential jurors and dismiss them if she chooses. The defense
can then challenge and dismiss however many (up to the limit specified) she so
chooses and those who have been dismissed are replaced from the remaining
assembled potential jurors. This process continues until twelve jurors and alternates
are sworn in. The defense usually goes first in this process, on the even rounds.
Peremptory challenges are gambles because the attorneys have no guarantee of what
kind of juror will replace those let go.
An alternate system of selection during the peremptory challenge phase is
called struck jury and requires that jurors be questioned and challenges for cause
exercised until the jury consists of twelve members plus the allowed number of
peremptory challenges. If each side is allowed ten challenges, then challenges for
cause continue until thirty two jurors remain (twelve plus ten). After this number is
reached, the process of excusing through peremptory challenges begins. This system
allows for the attorneys to exclude the jurors most objectionable to them.
37


The trials observed in this research resemble the struck jury system.
Twenty five potential jurors in felony trials and seventeen in civil and misdemeanor
trials are seated through random selection. If a juror is excluded for cause they are
replaced through random selection from jurors in the gallery. During the peremptory
challenge phase, the prosecutor and defense attorneys alternate exclusions until a
panel of 13 (12 plus one alternate) in felony cases and 7 (6 plus one alternate) in civil
and misdemeanor cases remain. Given the process of peremptory challenges,
attorneys can only exclude prospective jurors; therefore the process of seating a jury
is not accurately represented by the phrase, jury selection.
Peremptory challenges involve the broad use of stereotyping. Stereotypes
may be based on occupation, gender, race, ethnicity, age, dress, body, hair, books
read, favorite television shows, music, etc. In using stereotyping to implement
challenges, it becomes easy to work against the basic concept of a seated jury as
representative of the community. The county involved in the case of Swain v.
Alabama (1965) was predominantly African American, yet prosecutors
disproportionately excused black jurors. In fact, research revealed that no African
Americans had served on a jury in that county for the past fifteen years. This pattern
has been evidenced throughout the United States. Part of the stereotype assumed by
prosecutors is that African Americans are most often pro defense. This holds true
38


even in cases where questioning reveal values and characteristics consistent with
prosecution leanings.
One of the most important rulings concerning jury selection emerged in the
1986 Supreme Court decision in Batson v. Kentucky. This decision states that
although excluding potential jurors based on race did not violate the fair cross
section rights of the litigants, peremptory challenges exercised on racial grounds
violated the equal protection rights of the jurors (Jonakait, 2003, p. 143). This is
known as the Equal Protection Clause and the principle applies to all jury trials in the
United States. In 1995 it was expanded to include gender (Batson v. Kentucky 1986;
J.E.B. v. Alabama 1994; Georgia v. McCollum\992). Although this ruling seems
easy to understand, it remains difficult to enforce. If a party chooses to dispute a
peremptory challenge based on the equal protection clause, they must be able to prove
that the sole reason for a prospective jurors exclusion was because they were either
African American or Latino; or because of gender. Although Latinos were added to
the list under the equal protection clause, no other group falls under this ruling
including Muslims, Middle Easterners, etc.
If a party is accused of apparent discrimination, they must come forward and
prove that the challenge was nondiscriminatory. As long as the attorneys
explanation seems plausible and based on race-neutral judgment, the challenge and
exclusion stands. Even if the explanations still mean that no African Americans,
39


Latinos, or women will ultimately end up on the seated jury based on the explanation
given. Basically, any excuse except one based on race or gender will be acceptable;
for instance, messy hair, type of work, religion, etc. The court does not have to
accept a nondiscriminatory explanation, but must determine whether the proffered
reasons were a pretext for forbidden discrimination (Jonakait, 2003, p. 145). The
Supreme Court does not allow for implausible or fantastic explanations. In the
case of Purkett v. Elem (1995) the ruling stated that discriminatory explanation does
not have to be a reason that makes sense, but a reason that does not deny equal
protection (Purkett v. Elem 1995). According to Jonakait (1999), Only the most
overtly discriminatory or impolitic lawyer can be caught in Batsons toothless bite
and even then, the wound will be only superficial (p. 146). Furthermore, no
guidelines exist for judges to use in determining whether challenges are based on
pretext, but as enumerated by Jonakait (1999), some methods used by lower courts
include: 1) stated reasons are unrelated to the case 2) the challenged juror was not
questioned thoroughly 3) questions to support the explanation were asked only of the
challenged juror, but not of any other jurors 4) the characteristics of the challenged
juror that support the explanation were shared by others who were not challenged (p.
146).
Although much of the peremptory challenge process emerges from answers to
questions during voir dire, other methods of understanding potential jurors and their
40


beliefs, biases, backgrounds, etc. exist. Independent investigations of the jury pool
may be conducted as long as no personal contact is made and as long as any
investigation does not become vexatious or harassing to potential jurors.
Investigations are expensive and time consuming, so usually are limited to high
profile and wealthy cases.
Voir dire remains the best opportunity to gain information regarding
perspective jurors and the longer, more detailed the voir dire, the more effective the
process ultimately becomes. However, a long voir dire process means a lengthier and
more expensive trial; therefore, many judges attempt to limit the time spent in the
voir dire process. In all cases observed for this research, the judge imposed a time
limit on the attorneys for the voir dire process. It remains difficult to determine bias
in the voir dire process because often people do not want to admit that they posses
any biases. In addition, the process may be interpreted as invasive if attorneys inquire
into personal information (age, habits, children, criminal history, etc.) resulting in the
attorney alienating potential jurors during voir dire.
Better and more honest responses from potential jurors occur when they are
questioned individually during voir dire, rather than collectively. Open ended
questions that allow a juror to expose more of their beliefs, thoughts, and personality
have emerged as the most effective in questioning potential jurors; although time
41


constraints remain a consideration in this style of questioning. A combination of
individual and group questioning occurred in the research for this paper.
Questionnaires sent to potential jurors to fill out and return are an efficient
method in determining which jurors an attorney may want to keep or exclude.
Questionnaires also serve to shorten the voir dire process. Attorneys have an
opportunity to review questionnaires ahead of time making them better prepared.
Questionnaires reveal more information about each individual juror. Many
questionnaires include a portion for written answers, which elicit more honest
responses from potential jurors. Respondents are not put on the spot in front of
other jurors, the judge, the attorneys, or the defendant. Many questionnaires provide
an opportunity for attorneys to probe more deeply into the individual qualities of
potential jurors (Jonakait, 2003, p. 153). Even though personal and probing questions
may result in the invasion of jurors privacy, judges and attorneys will most likely
believe this invasion beneficial and perhaps necessary.
In the O.J. Simpson trial the questionnaire used to screen potential jurors was
79 pages, 28 parts, and 294 questions (according to a potential juror who was later
dismissed). This excused juror stated While we were filling out the questionnaire,
one comment came up over and over again: This is so personal. You could hear it
muttered all about the room. (Kennedy, Kennedy, and Abrahamson,1995, pp. 28-
33). In another trial, Dianna Brandborg refused to answer questions that she
42


described as the kind of information that she would tell no one and refused to give
the answers (Brandborg v. Lucas 1995). Held in contempt, Brandborg spent three
days in jail and paid a two hundred dollar fine. A federal court ruled that if a juror
raises privacy concerns, the trial court should seek the sensitive answers in a closed
proceeding and seal the resulting record the court further found that if the trial court
considers the questions appropriate, the jurors privacy rights have to give way and
the juror has to answer (Jonakait, 2003, p. 154). The use of questionnaires may lead
to more than an unbiased jury. It may culminate in an essentially handpicked jury
that will favor the desired verdict. According to Jonakait (2003), the jury becomes
the case winner, not the evidence, resulting in less confidence in the jury process and
eroding the acceptability and legitimacy of verdicts (p. 155). I began observations
of three trials in this research that ended up using jury questionnaires. No
questionnaires were used in the trials observed for this research.
Jury Reform
Several issues commonly arise in jury research regarding jury reform. The
issue of fairness injury minority representation has consumed much of jury research,
law, and reform. The publics general attitude towards jury duty and the jury system
as a whole has also taken an important role injury reform. The perception of a lack
of faith in the system, attempts to legitimize the system, and the exorbitant amount of
43


time involved injury service spawn proposals for jury reform. I include this section
to demonstrate the continued efforts towards improving the jury selection process; an
effort that supports the contention that a fair and representative jury system does not
yet exist.
Jury Size
One proposed reform suggests changing all juries from a twelve person
representation to a six person representation. According to Margo Hunter (1996), a
jury must be large enough to promote deliberation free from outside attempts of
intimidation and provide a fair possibility for obtaining a representative cross section
of the community. Hunter posits that advantages to the six person jury include
reduction in costs, less time spent on the voir dire process, and less time spent in
deliberations. Finally, Hunter suggests that more cases could be heard due to a more
efficient use of time (Hunter, 1996, p. 2). The disadvantages to the six person jury
include: less than a twelve person jury is less representative, the quality of
deliberations may be endangered, and jury awards may be more erratic (Hunter, 1996.
p. 2).
Research reveals that six person juries are faster and cheaper, thereby
allowing jurors to invest less time in the process resulting in fewer attempts to get out
of jury duty. Studies that challenge the six person jury find that the voir dire process
44


remains consistent in length regardless of whether the jury has six or twelve
members. Further, the discipline of statistics supports the concept that the smaller the
sample size, the less representative it will be (Hunter, 1996, p. 3). In a community
with a 10% minority population, one or more minorities would be represented on
72% of the twelve person juries; however, on a six-person jury, only 47% of the
juries could be expected to contain one or more minorities (Hunter, 1996, p. 3).
Further studies reveal that women may be less represented on six person juries
(Zeisel, 1972, pp. 367-368). In addition, the collective memory of a twelve-person
jury emerges as superior to that of a six-person jury. Twelve-person juries
communicate more effectively and for longer periods of time. A dominate personality
on a jury has more luck in persuading a six-person jury than a twelve-person jury
(Hunter, 1996, p. 4). Some studies determine that defendants are at a disadvantage
with a six-person jury due to a higher chance of conviction than with a twelve-person
jury (p. 4).
The Committee on Rules of Practice and Procedure of the Judicial Conference
determined on December 13,1994 that:
- twelve person juries are more reliable and deliberative
- twelve person juries are more representative of the concerns of the minority
45


- the dollar savings of the smaller juries were ultimately insignificant in the
overall judiciary budget
- there is not enough reduction in time to make a significant difference
- the cons outweighed the pros in reducing jury size to six
(Hunter, 1996, p. 4).
Non-Unanimous Juries
Switching to a non-unanimous jury system exists as another popular jury
reform proposal. The unanimous jury remains a staple in the United States jury
system. Common thought supports the premise that a unanimous verdict reduces the
probability of convicting an innocent defendant while increasing the probability of
acquitting a guilty defendant (Feddersen and Pesendorfer, 1996, p. 1). However, the
model developed by Feddersen and Pesendorfer (1996) demonstrates how strategic
voting by jurors undermines this basic institution (p.l). They posit that
Unanimity rule may lead to high probabilities of both kinds of errors
and that the probability of convicting an innocent may actually
increase with the size of the jury. Finally, we demonstrate that a wide
variety of voting rules including simple majority rule lead to much
lower probabilities of both kinds of errors
(p. 1).
This is an important consideration because the possibility exists for jury selection to
stock the jury with a pre-calculated combination of individuals to allow for
strategic voting.
46


Feddersen and Pesendorfer (1996) suggest that jurors bring both private and
public information with them to the jury box: the formalization that jurors have
private information captures the fact that jurors interpret evidence differently by
virtue of different life experiences and competencies (p. 2). Jury literature supports
the argument that a group will make a better decision than an individual (p.2).
Feddersen and Pesendorfer (1996) distinguish between sincere voting by the jury
and voting strategically:
-sincere voting: assumes that jurors will vote to convict or acquit without
taking into account how the other jurors are voting
-strategic voting: the incentive to vote strategically arises because a jurors
vote only matters when a vote is pivotal and because the information
possessed by other jurors is relevant for a jurors decision
-key to Feddersen and Pesendorfers findings is the assumption that each
juror has private information made up of their own life experiences and
competencies
-Feddersen and Pesendorfers findings support that a better jury model would
be larger juries and a super-majority rule that would help reduce the
probability of convicting the innocent (p. 16).
Data collection for this research includes educational background (required
information in every trial observed) and may be used in future research to help
determine the depth of private information a potential juror possesses.
The debate over unanimous juries will undoubtedly continue. Although most
criminal trials still require unanimity, a few places allow a supermajority. Still,
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Empirical research on jury unanimity and jury size shows that the functioning of the
jury would be seriously undermined...by these reforms (Abbott and Batt, 1999, p. 3-
22). The need to listen to and understand co-jurors diminishes with the non-
unanimous jury. This remains one of the major fears concerning the elimination of
the long standing unanimous jury tradition. According to Donald Black The
difficulties in obtaining a unanimous verdict place greater burdens on both majority
and minority groups to work out their differences, possibly preventing wrongful
convictions (Black, 1976, pp. 30, 32). This speaks in powerful support of the
unanimous jury.
Minority Representation
In response to concerns over the lack of minority representation on juries,
three affirmative action models have been explored. These alternatives have been
investigated as a result of concern over the lack of protections afforded members of
racial minorities in criminal trials. According to Hiroshi Fukurai (1997) The current
selection procedures provide almost no protection to racial minorities (p. 477). In
addition, Fukurai (1997) blames the discriminatory use of peremptory challenges
for undermining minority representation on juries (p. 477). (This research will
address Fukurais concerns in the data analysis section). Three types of mandatory
racial quotas: the de medietate linguae, the Hennepin model, and the social science
48


model may help to engineer racially integrated juries in criminal trials (Fukurai,
1997, p. 477).
' First used in English law, The de medietate linguae model
Recognized the danger that inhered in allowing members of a minority
community to be tried entirely by English majority jurors and devised
the jury system called the jury de medietate linguaea in both civil and
criminal cases involving minority members such as Jews, Italians,
Germans, and other foreigners. This practice of mixed juries of one-
half of English natives and one-half of aliens endured throughout
almost 700 years until it was finally repealed in 1870
(Ramirez, 1994, p. 790).
Literally translated the phrase means jury of the half tongue. Adopted and used in
the early colonies, this type of mixed jury emerged to ensure substantive fairness and
enhance the legitimacy of jury verdicts (Fukurai, 1997, p. 481). Ramirez (1994)
joints out that this type of mixed jury became vital to maintaining a sense of
fairness between the colonists and the natives, (p. 790). The practice of the jury de
medietate linguae ceased and the mandatory mixed jury disappeared from
application under American law (Fukurai, 1997, p. 481) following a decision by the
Supreme Court regarding the case of United States v. Wood (1936) whereby the court
claimed in dictum and without analyses that the ancient rule under which an alien
might have a trial by jury de medietate linguae....in order to insure impartialityno
longer obtains (Fukurai, 1997, p. 481). Fukurai (1997) maintains that The fixed
49


quota is viewed as an essential feature of jury composition to ensure both the
appearance and substance of fairness and justice injury verdict (p. 482).
Introduced in Hennepin County Minnesota, the Hennepin model of jury
representation requires that representative-ness in the jury box reflect respective
proportions of both majority and minority groups in the general population (Fukurai,
1997, p. 482). The Hennepin model requires proportional representation on the jury
itself rather than just the jury pool. Presently used for the Grand Jury only, this model
might easily be implemented in criminal jury trials.
The social science model was designed to ...assure three minority jurors in
order to preserve, not only the appearance of fairness, but the legitimate viability of
deliberations and verdicts injury trials as well (Fukurai, 1997, p. 483). According to
S. L. Johnson, Jury research shows that a minimum of three members of a racial
minority are necessary to offset the group pressures of the dominant majority jurors
during jury deliberation (Johnson, 1985, p. 1698); thereby supporting the validity of
a mandatory minority representative model in jury selection. Donald Black notes that
based on social scientific findings, the jury requires at least ten racially similar jurors
to make acquittal the predicted jury verdict (Black, 1989, pp. 30, 32); therefore a
minimum of three minority representatives would be necessary.
The social science model lends itself to empowering the minority to fight
against the majority. Pressure from the majority group can only be countered with a
50


minimum requirement of the minority that reflects the race of the defendant. Further
research supports this claim: .psychological studies show that without a minimum
of three minority jurors, they may not withstand the group pressure, suggesting that
one or two dissenting jurors eventually accede to the majoritys opinion (Saks, 1977;
Hastie, Penrod, and Pennington, 1983; Kerr and MacCoun, 1985; Hastie, 1993;
Fukurai, 1997).
Hiroshi Fukurai's (1997) survey on the three models of mandatory minority
representation reflect support for the social science models by most respondants with
slightly less support for the Hennepin model and significantly less for the jury de
medietate linguae (p. 486). These statistics support the basic premise that affirmative
action juries may help restore the publics faith and sense of fairness in the jury
system. The overall questions concerning affirmative action jury selection include
duplication of minority representation of the communities in which trials are
conducted; the social costs of unrepresentative juries (Fukurai, 1997, p. 496);
whether racial quotas will alienate potential jurors; and whether a ceiling effect for
minority applicants by setting a minimum (Fukurai, 1997, p. 496) might occur.
Fukurai (1997) explains that Whites and those from upper social classes are most
likely to feel that mandated racial quotas are discriminatory (p. 497).
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Minorities and Jury Selection
One of the major criticisms of the current jury selection process is the real
and/or perceived lack of fairness for women, Blacks, Latinos, and the poor
(Fukurai, 1997, p. 484). As explained in the U.S. 90th Congress House Report, 1968:
Section 1961, these groups have the right to participate in court as jurors, and it must
be representative within specified geographic districts wherein a particular court
convenes. Further, Careful research indicates that discrimination in jury selection
procedures occurs by gender, age, race, and socioeconomic status (Fukurai, Butler,
and Krooth, 1991, p. 197). Although focus is usually placed on the representation of
African Americans; gender, age, and socioeconomic status can all exist as under
represented aggregates on seated juries. To date, a vast lack of research has occurred
to explain why African Americans are so widely under represented on juries.
Fukurai, Butler, and Krooth (1991) suggest four possible causes for the lack of
African American representation on juries: racial discrimination in jury selection
procedures; socioeconomic barriers preventing full community participation by
African Americans and other racial minorities; judicial discrimination that allows
racially demarcated jury representation; and institutional racism and bureaucratic
discrimination in perpetuating judicial inequality (p. 197). The largest
disproportionate representation occurs where district clerks and jury commissioners
52


have substantial discretion regarding both the sources and methods of selection
(Fukurai, Butler, and Krooth, 1991, p. 199). The far-reaching implications of having
the jury system under represent African Americans and other minority populations
include the fact that under representation results in the .legitimation of Anglo-
dominated judicial system (Fukarai, Butler, and Krooth, 1991, p. 199) further
perpetuating the consequence of the dominate population ruling the judicial system.
Some explanations addressing the lack of minorities represented in the jury
pool include: the low response rates to jury questionnaires; the transient, seasonal
work force of some minorities; lower levels of property ownership; and more frequent
relocations by some minority groups. All of these factors contribute to difficulties in
maintaining minority jury status on jury pool lists. The same considerations can be
made for the low representation of youths, laborers, and low income/educated
populations. Creative manipulation of jury selection and procedures helps to
contribute to under representation of minorities on juries. Tactics such as seating
blue ribbon juries, reducing the size of juries (i.e. the six man jury), the use of non
unanimous juries, and the process of gerrymandering judicial districts add to the
dilemma of under representation of minorities (Fukurai, Butler, and Krooth, 1991, p.
201-202).
According to Fukurai, Butler, and Krooth (1991), a clear pattern of racial
discrimination is found in death penalty cases (p. 204). The following statistics from
53


Florida, support this view: the chances of an African American receiving the death
penalty when the victim was White is 1 in 5; a White person killing a White person
has a 1 in 20 chance of receiving the death penalty; an African American person who
killed an African American has a 1 in 167 chance of receiving the death penalty; and
a White person who killed an African American person has a probability of zero for
receiving the death penalty (Bowers and Pierce, 1980, pp. 563-635).
The minority representation on juries can have a dramatic effect on rape trials.
According to D. Ugwuegbu (1979), White jurors find African American men accused
of rape more culpable when the victim is White than any other racial combination. In
addition, African Americans were more likely to judge that a White defendant was
culpable when the victim was Black (p. 133-136). H. Field (1979) explains that In
a rape simulation study, Black defendants were treated more harshly than White
defendants (p. 261-284).
Jury Consulting
Jury consulting has become big business in the United States. Many high
profile trials use experts who claim that verdicts can be predicted based on selecting a
jury with specific characteristics. Often based on stereotyping characteristics (i.e.
African Americans more often favor defendants) this technique of jury selection has
54


yet to be validated. Shari Diamond (1990) suggests that the positive results of
scientific jury selection (SJS) are modest at best (p. 178).
Diamond explains that jury consulting and SJS rely on the assumption that,
since juries often do not have a unanimous first vote during deliberations; evidence
alone is not at play in the jury room: all jurors are exposed to the same evidence;
therefore, The differences in juror reaction must stem from pre-existing differences
among the jurors that affect juror responses to the evidence (Diamond, 1990, p.
178). Diamond continues: what litigator faced with the uncertainties of trial would
not appreciate a little assistance (Diamond, 1990, p. 178)?
Consultants use several methods in jury selection. Among them are:
telephone surveys, testing of respondents at research facilities, and questionnaires.
Telephone surveys generally are divided into three stages: 1) questions regarding
general information such as age, sex, occupation, prior jury service, prior experience
as an accident victim, etc. (Diamond, 1990, p. 179) 2) questions regarding beliefs
and attitudes 3) after a brief description of the case, questions regarding which side
the potential juror might favor (Diamond, 1990, p. 179). The use of research facilities
lowers the number of respondents reached, while telephone interviewing is more cost
effective and reaches more potential jurors. Questionnaires can elicit a large dirge of
information, but can result in offending or alienating potential jurors due to the length
and the attempt to acquire personal or sensitive information.
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Cases exist in which jury consultants take credit for the juries verdict;
however, ...no one has yet produced convincing evidence that advice on jury
selection made the difference (Diamond, 1990, p. 179). Studies reveal that the most
profound influence on jury verdicts is stillthe evidence. Diamond (1990) concludes
that Scientific magic in the form of SJS may reduce dysfunctional stress or simply
appease a client who wants to be assured that every available tool has been used to
prepare for trial and that The difficulty is that we currently have no reliable way to
identify which cases will be amenable to SJS (p. 183).
Mitzi S. White (1995) attempts to ...review the effectiveness of traditional
and social science methods of jury selection (p. 414). White explains that most
studies have found ...only weak relationships between jurors characteristics and
their verdict preferences. These findings suggest that the underlying assumption that
jurors characteristics determine their verdict preferences may lack validity (p. 415).
In Whites study, prosecutors and defense attorneys were evaluated and questioned
concerning their methods of jury selection. Her research revealed that
Both successful prosecutors and criminal defense lawyers base their
selection decisions primarily on juror receptivity and their feelings
about the juror. They choose jurors who transmit behaviors that
indicate that they like the attorneys, feel comfortable with them, and
are willing to listen to their version of the case
(White, 1990, p. 442).
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Until further studies are conducted, the evidence remains limited concerning the
validity and effectiveness of jury consultants and scientific jury selection.
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CHAPTER 3
METHODS
Sampling
The sample in this research consists of jury selection observations made in the
Denver Colorado District Court. The unit of analysis is the individual, since the data
culminates in a comparison between characteristics of initial jurors and seated
jurors. Thirteen jury selections make up the sample for this research with
characteristics of 385 initial jurors and 163 seated jurors.
Since no public lists for jury selections exist for any given day, I wait outside
jury assembly room number 431 and follow the first group of potential jurors called
for a criminal case. I focus on criminal trials only as issues concerning race inevitably
vary between civil and criminal trials. Potential jurors assemble at the Denver District
Court accessed through voter registration (ROV) and DMV records from which they
have been randomly selected. Each prospective juror is contacted by mail at which
time they are assigned a number. They are given a day and time to assemble at the
courthouse in the jury room. When a trial is ready to begin jury selection, potential
jurors are randomly called by number to go to a courtroom. At this point, I follow the
first group called for a criminal trial (on each of the days I am present) to the
designated courtroom. This group of potential jurors ranges in size anywhere from 20
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to close to 100, depending on the judges specified guidelines for each case. I begin
my data collection on the first group of randomly selected jurors in the courtroom
who take the jury box. In misdemeanor cases this number is usually 17; and in felony
cases the number is usually 25 (this can vary depending on the severity of the charges
or with high-profile cases). I refer to this group as the initial panel. I conduct my
observations until the final panel of 7 for misdemeanor cases and 13 for felony cases
has been seated. I refer to this group as the seated panel.
In summary, there are three levels of random selection for potential jurors up
until this point: 1) potential jurors are randomly selected and assigned numbers from
ROV and DMV records and are required to assemble in the jury room of the
courthouse on a specific day 2) potential jurors are randomly selected and called by
their number and attached to a trial 3) names are randomly called for potential jurors
to take the jury box. I follow the first group of potential jurors for each given day of
observation, thus adding a fourth level of random selection. Selecting the first jury for
each day of observation eliminates the chance that I select certain groups based on
personal bias. Since court clerks arrive at the assembly room to bring potential jurors
to the courtroom, this method of selection will remove the chance that I will
eventually recognize which clerks are associated with particular judges. Associating
clerks with a more entertaining judge might influence which trial I decide to
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observe. Following the first group each day I am on hand to observe eliminates any
such bias on my part.
Operationalization
Race
I determine and document the independent variable race (JURRACE) based
on a potential jurors self-identification; that is, if they refer to themselves as a
particular race. Since self-determination of race is not required, if it is not provided I
assess race based on my observation; just as the Judge and attorneys must to do. Race
is coded as: l=Native American 2=Asian 3=Hispanic 4=White 5=African American.
If any doubt exists concerning the race of a potential juror, the potential jurors race is
coded as 9=undeterminable and is considered a missing value. The same coding
for race is applied to the judge, attorneys, court reporter, bailiffs, defendants, and
victims when known.
Gender
I determine and document the independent variable gender (JURGEND)
based on my observations. Gender is coded as: l=Female or 2=Male. If there is any
doubt, the potential jurors gender is coded as 9=undeterminable and is considered
a missing value. This assessment of gender is applied to the judge, attorneys, court
reporter, bailiffs, defendants, and victims when known.
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Education
I determine and document the independent variable education (JUREDU)
based on information provided by each potential juror. This is almost always
required by the judge in the voir dire process. I code the level of education as:
l=less than high school, 2=high school graduate, 3=college, 4=graduate degree. If
level of education is not given, I code it as 99=unknown and it is considered a
missing value.
Criminal History
I determine and document the independent variable criminal history
(JURCRHIS) based on answers provided by potential jurors. I code these as: 0=no
criminal history or not mentioned and l=yes. In order to receive a yes coding, the
perspective juror must declare a criminal history as a defendant (although not
necessarily in criminal court).
Interview with the Judge
I determine and document the independent variable interview with the judge
(JURINTJDJ) as: 0=no and l=yes.
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Ever been a Witness
I determine and document the independent variable whether a potential juror
has participated as a witness in another trial (JURWITNE) based on their answers
during voir dire. I code these as 0=no and l=yes.
Exclusions For Cause
I document the dependent variable jurors are excused for cause by the
judge based on the judges assessments or assessments made by the attorneys during
voir dire. Included in this documentation are the race, gender, education, criminal
history, request for interview with the judge, and previous participation as a witness
of the excused jurors (using the coding outlined above).
Peremptory Challenges
I document the dependent variable peremptory challenge based on which
potential jurors are excused by which attorneys. Included in this documentation are
the race, gender, education, criminal history, interviews with judge, and participation
as a witness of the jurors excused in the peremptory challenge phase, and which side
(defense or prosecution) excused each juror.
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Seated Jurors
I document the dependent variable seated juror based on who ends up on the
final panel. Included in this documentation are race, gender, education, criminal
history, interviews with judge, and participation as a witness.
Verdicts
Verdicts are determined for each of the trials based on court records obtained
from the case number provided by the judge at the beginning of each trial.
Instruments
By Juror Data Matrix
This grid-style form (Appendix A) documents race, gender, education,
criminal history, interview with judge, and previous experience as a witness of the 17
initial jurors randomly called to the jury box in misdemeanor cases and the 25 initial
jurors randomly called to the jury box in felony cases. As potential jurors are
excluded from this group for cause and peremptory challenges, information is
documented on the grid and replaced with the information of the subsequent
randomly selected potential juror. This process is continued until the final, seated
jury has been selected. Note: other variables are documented on this instrument to be
used in further jury selection research.
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By Trial Data
A by trial form (Appendix B) is used to document the makeup of all
courtroom participants by trial number. This form includes the courtroom number, the
case number, the duration of the jury selection, and the verdict of the case.
Memos
Detailed memos of my experience with each jury selection are written. These
memos provide and document information that cannot simply be filled in on forms
(Appendix A and B). This process serves to provide a rich, textured view of what I
observe in the jury selection process and courtroom that cannot be assessed by
demographic information. This process describes anomalies and patterns observed in
the jury selections, specifically those concerning minority representation.
Datasets
I designed an SPSS dataset (byjuror.sav) with variables, coding, and labels for
each juror. This dataset includes almost 30 variables and 385 cases (over 10,000
cells). I designed an SPSS dataset (bytrial.sav) with variables, coding, and labels for
each trial. This dataset includes information pertaining to jury selection on a trial-by-
trial basis and includes over 30 variables and 13 cases. Eleven variables are included
64


in this research. Other variables will be implemented in future research on jury
selection.
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CHAPTER 4
PROCEDURES
The research conducted for this study explores the jury selection process using
data compiled from observations of 13 criminal jury selections at the Denver
Colorado District Court. The research has four phases. Phase I compares initial
jury panels with seated panels by analyzing data collected regarding race, gender,
education, criminal history, interviews with the judge, and history as a witness. Phase
II examines the makeup of the courtroom during jury selection. This phase includes
observations regarding the race and gender of the judge, attorneys, court reporter,
bailiffs, defendants, and victims (when known). Phase II additionally provides data
concerning the charges against the defendant as well as the verdict. Phase III
employs observations regarding the behavior, interactions, and nuances of the
courtroom experience during jury selection. Documented narratives derived from
memos completed after each jury selection provide details beyond the scope of
demographic data collected in Phase I and II.
Data from Phase I and Phase II are recorded on data sheets (Appendix A and
B). I keep track of potential jurors by employing a numbering scheme based on their
assigned seats in the jury box (see Appendix C for details of the jury selection
process). When a for cause or peremptory challenge exclusion of a potential juror
66


occurs, I designate the replacement juror as new (for instance new 2). In criminal
felony trials the seated jury panel typically consists of 12 individuals plus one
alternate juror. In misdemeanor trials the seated panel consists of 6 individuals plus
one alternate juror
Detailed memos documented immediately following an observed jury
selection provide information for Phase III. Based on these memos, I create pertinent
narratives of the courtroom scene. Whenever I discuss a specific juror, I refer to them
by their juror seat number. Phase III supplements the demographic information in an
effort to create a rich and complete picture of the jury selection process.
The limitations of this research exist primarily in the sample. I have only
observed the Denver Colorado District Court. A cross-state sample might help
determine if the trends I observe reflect the American system of jury selection. A
large sample size is advantageous in any research; however, the lengthy time
investment in the jury selection process combined with the time spent waiting for
trials and not getting one limits the sample size in the present research to 13 jury
selections.
Strengths of this research include the randomization of the initial panels
already done by Denver and the fact that only one other study of this nature seems to
exist. I contacted the Jury Commissioner and she informs me that official data on
potential versus seated jurors remain non-existent or un-obtainable, thus adding to the
67


importance and strength of this research. Jury selections are open to the public and I
do not include any names or dates in my final research, so ethical concerns are
negated.
I
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CHAPTER 5
DATA ANALYSIS
Quantitative Analysis: Phase I
A matrix instrument documents data for comparison between the initial
panel of jurors and the seated panel (Appendix A). Appendix A includes 22
variables from which I designed a detailed SPSS dataset (byjuror.sav). For the
purpose of this research, I examine ten variables. Additional variables do not emerge
as pertinent to the racial aspect of the theoretical framework for this research.
However, they may contribute to future research on jury selection. I document the
race and gender of the courtroom staff (defendant, judge, attorneys, clerks, court
reporter, and bailiffs) on a trial by trial basis (Appendix B). Included in the SPSS
dataset (bytrial.sav) designed from this documentation are the race of victims and
verdicts (when each is known). Table 1 provides data for the racial makeup between
initial jury panels and seated panels and serves as an overview to the outcome of
observed jury selections.
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Table 1: Breakdown of Initial Panel and Seated Panel by Race
JURRACE Race of juror SEATEDRACE Race of seated juror Crosstabulation
SEATEDRACE Race of seated iuror
5 African
0 Not seated 2 Asian 3 Hispanic 4 White American Total
JURRACE 1 Asian Count 6 3 0 0 0 9
Race of juror % within JURRACE Race of juror 66.7% 33.3% .0% .0% .0% 100.0%
% within SEATEDRACE Race of seated juror 2.7% 100.0% .0% .0% .0% 2.3%
2 Hispanic Count 39 0 19 0 0 58
% within JURRACE Race of juror 67.2% .0% 32.8% .0% .0% 100.0%
% within SEATEDRACE Race of seated juror 17.6% .0% 100.0% .0% .0% 15.1%
3 White Count 145 0 0 124 0 269
% within JURRACE Race of juror 53.9% .0% .0% 46.1% .0% 100.0%
% within SEATEDRACE Race of seated juror 65.6% .0% .0% 100.0% .0% 70.2%
4 African american Count 31 0 0 0 16 47
% within JURRACE Race of juror 66.0% .0% .0% .0% 34.0% 100.0%
% within SEATEDRACE Race of seated juror 14.0% .0% .0% .0% 100.0% 12.3%
Total Count 221 3 19 124 16 383
% within JURRACE Race of juror 57.7% .8% 5.0% 32.4% 4.2% 100.0%
% within SEATEDRACE Race of seated juror 100.0% 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 400.333 12 .000
Likelihood Ratio 251.196 12 .000
Linear-by-Linear Association 6.466 1 .011
N of Valid Cases 383
a. 11 cells (55.0%) have expected count less than 5. The
minimum expected count is .07.
The byjuror SPSS dataset analysis demonstrates a significant relationship
(p<.05) between variables. The variable JUROUTCM contains the four categories
of possible outcome for initial panel jurors. These include: 1) excused for cause
by judge 2) peremptory challenge by prosecution 3) peremptory challenge by defense
4) seated on the final jury. Chi-square tests reveal significant relationships between
70


the independent variables: jurors race (JURRACE), education (JUREDU), criminal
history (JURCRHIS), interviews with the judge (JUR1NTJDJ), and history as a
witness in another case (JURWITNE) and the dependent variable JUROUTCM.
Crosstab analysis of race of juror and final outcome of jury selection
demonstrates a significant difference between the prosecution and defense
peremptory challenge practices when minority challenges occur (Table 2). The
prosecution excludes almost three times as many African American potential jurors as
the defense (Table 3). The defense only excludes more jurors than the prosecution in
the white race category. Eleven out of the 13 trials have minority defendants (8
African American and 3 Hispanic), revealing a correlation between the race of a
defendant and the decision by the prosecution or defense to exclude them (Table 4).
Correlations between African American defendants and seated panels emerge as
most salient (Table 5). Defense attorneys represent more minority clients and
exclude more white jurors and prosecuting attorneys prosecute more minority
defendants and exclude more minority potential jurors.
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Table 2: Race and Final Outcome of Jury Selection
JURRACE Race of juror JUROUTCM Final outcome of jury selection Crosstabulation
JUROUTCM Final outcome of iurv selection
1 excused 2 challenged
for cause by 3 challenged
bv judge prosecution bv defense 4 seated Total
JURRACE 1 Asian Count 2 2 2 3 9
Race of juror % within JURRACE Race of juror 22.2% 22.2% 22.2% 33.3% 100.0%
% within JUROUTCM Final outcome of jury selection 3.6% 2.4% 2.4% 1.9% 2.3%
2 Hispanic Count 18 14 7 19 58
% within JURRACE Race of juror % within JUROUTCM 31.0% 24.1% 12.1% 32.8% 100.0%
Final outcome of jury selection 32.1% 17.1% 8.4% 11.7% 15.1%
3 White Count 27 50 68 124 269
% within JURRACE Race of juror 10.0% :% 25.3% 46.1% 100.0%
% within JUROUTCM Final outcome of jury selection 48.2% 61.0% 81.9% 76.5% 70.2%
4 Atrican american Count 9 16 6 16 47
% within JURRACE Race of juror % within JUROUTCM 19.1% 34.0% 12.8% 34.0% 100.0%
Final outcome of jury selection 16.1% 19.5% 7.2% 9.9% 12.3%
Total Count 56 82 83 162 383
% within JURRACE Race of juror % within JUROUTCM 14.6% 21.4% 21.7% 42.3% 100.0%
Final outcome of jury selection 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 29.174a 9 .001
Likelihood Ratio 27.260 9 .001
Linear-by-Linear Association 1.625 1 .202
N of Valid Cases 383
a- 4 cells (25.0%) have expected count less than 5. The
minimum expected count is 1.32.
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Table 3: Exclusions of African American Initial Jurors
By % of AA among the excused
Judge 16.7%
Prosecution 20.0%
Defense 7.4%
Table 4: Breakdown of Exclusions by Race
By % of excused AA when the defendant is AA % of excused Whites when the defendant is White % of excused Hispanic when the defendant is Hispanic
Judge 100% 29.6% 11.1%
Prosecution 62.5% 14.0% 7.1%
Defense 83.3% 14.7% 14.3%
Table 5: Breakdown of Exclusions by Race of Juror and Race of Defendant
Seated Jurors When the defendant is AA When the defendant is Hispanic When the defendant is White
African American 10.4% 8.1% 11.5%
Hispanic 12.5% 13.5% 7.7%
White 77.1% 78.4% 80.8%
In all educational categories for the variable of jurors education, the
prosecution excludes more potential jurors except in the category of college (Table
2). In this category, the defense excuses 44% and the prosecution excuses 27%. The
racial significance exists when we note that of those with college educations, 18% of
potential jurors excluded by the prosecution are African American, while only 2.9%
of those excluded by the defense are African Americans. Although the defense
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excludes 13 more jurors with college educations than the prosecution; they exclude
less African Americans with college educations. The differential exclusion of jurors
based on education supports the evidence outlined in the race analysis for racial bias
during the jury selection process.
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Table 6: Education and Final Outcome of Jury Selection
Jedu Juror Education JUROUTCM Final outcome of jury selection Crosstabulation
JUROUTCM Final outcome of iurv selection
1 excused 2 challenged
for cause by 3 challenged
by iudqe prosecution by defense 4 seated Total
Jedu 1 less than high school Count 2 6 2 0 10
Juror Education % within Jedu Juror Education % within JUROUTCM 20.0% 60.0% 20.0% .0% 100.0%
Final outcome of jury selection 4.7% 7.4% 2.5% .0% 2.7%
2 high school Count 20 36 30 59 145
% within Jedu Juror Education % within JUROUTCM 13.8% 24.8% 20.7% 40.7% 100.0%
Final outcome of jury selection 46.5% 44.4% 37.5% 36.9% 39.8%
3 college Count 17 22 35 78 152
% within Jedu Juror Education % within JUROUTCM 11.2% 14.5% 23.0% 51.3% 100.0%
Final outcome of jury selection 39.5% 27.2% 43.8% 48.8% 41.8%
4 graduate/advanced Count 4 17 13 23 57
% within Jedu Juror Education 7.0% 29.8% 22.8% 40.4% 100.0%
% within JUROUTCM Final outcome of jury selection 9.3% 21.0% 16.3% 14.4% 15.7%
Total Count 43 81 80 160 364
% within Jedu Juror Education % within JUROUTCM 11.8% 22.3% 22.0% 44.0% 100.0%
Final outcome of jury selection 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 21.6563 9 .010
Likelihood Ratio 24.419 9 .004
Linear-by-Linear Association 4.539 1 .033
N of Valid Cases 364
a. 4 cells (25.0%) have expected count less than 5. The
minimum expected count is 1.18.
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Thirty one jurors mention having a criminal history (Table 3). Of those, six
are African American (23 are white and 2 are Hispanic). However, all African
Americans with a criminal history are excluded for cause by the judge (4) or by the
prosecution in the peremptory challenge phase (2). Nine out of the 10 seated jurors
who have criminal histories are white. This means that 39% of the white jurors who
admit to criminal histories are seated, while no African Americans with criminal
histories are seated (even though most defendants are African American). In
addition, 9% of all white initial jurors claim a criminal history, compared to 13% of
all African American initial jurors. However, 7% of white jurors make it to the
seated jury after claiming to have a criminal history, compared to no African
American initial jurors who claim to have a criminal history making it onto a
seated jury. In other words, having a criminal history works against the potential
African American juror more than for the white potential juror resulting in less
African American representation on seated panels for African American
defendants.
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Table 7: Criminal History and Final Outcome of Jury Selection
JURCRHIS Does juror have criminal history JUROUTCM Final outcome of jury selection Crosstabulation
JUROUTCM Final outcome of iutv selection
1 excused for cause bv iudqe 2 challenged by orosecution 3 challenged bv defense 4 seated Total
JURCRHIS Does juror 0 No or not addressed Count 45 74 80 153 352
have criminal history % within JURCRHIS Does juror have criminal history % within JUROUTCM 12.8% 21.0% 22.7% 43.5% 100.0%
Final outcome of jury selection 83.3% 89.2% 96.4% 93.9% 91.9%
1 Yes Count % within JURCRHIS 9 9 3 10 31
Does juror have criminal history 29.0% 29.0% 9.7% 32.3% 100.0%
% within JUROUTCM Final outcome of jury selection 16.7% 10.8% 3.6% 6.1% 8.1%
Total Count 54 83 83 163 383
% within JURCRHIS Does juror have criminal history % within JUROUTCM 14.1% 21.7% 21.7% 42.6% 100.0%
Final outcome of jury selection 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 9.258a 3 .026
Likelihood Ratio 8.646 3 .034
Linear-by-Linear Association 6.328 1 .012
N of Valid Cases 383
a- 1 cells (12.5%) have expected count less than 5. The
minimum expected count is 4.37.
Forty one jurors asked for an interview with the judge (Table 4). Of these, 30
(73%) are excused by the judge for cause. These include 85% of the Hispanics
interviewed by the judge; 71% of the white potential jurors interviewed by the judge;
and 57% of the African Americans interviewed by the judge. African Americans
appear less likely to be eliminated for cause when they request an interview with
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the judge. Only one African American interviewed by the judge is seated on the
jury. Three out of the 4 potential jurors who meet with the judge and end up on the
seated jury are white. Only 9.8% of those who ask for an interview with the judge
are seated, while 46.6% of those who did not have an interview with the judge are
seated. It appears that requesting an interview with the judge results in exclusion
from the initial panel and that African Americans who meet with the judge are
more likely than their white counterparts to be excluded.
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Table 8: Interview with Judge and Final Outcome of Jury Selection
JURINTJDJ Asked for interview with judge JUROUTCM Final outcome of jury selection Crosstabulation
JUROUTCM Final outcome of iurv selection
1 excused for cause bv iudqe 2 challenged by prosecution 3 challenged bv defense 4 seated Total
JURINTJDJ Asked for 0 No Count 25 78 81 159 343
Interview with judge % within JURINTJDJ Asked for interview with judge 7.3% 22.7% 23.6% 46.4% 100.0%
% within JUROUTCM Final outcome of jury selection 45.5% 94.0% 97.6% 97.5% 89.3%
1 Yes Count 30 5 2 4 41
% within JURINTJDJ Asked for interview with judge % within JUROUTCM 73.2% 12.2% 4.9% 9.8% 100.0%
Final outcome of jury selection 54.5% 6.0% 2.4% 2.5% 10.7%
Total Count 55 83 83 163 384
% within JURINTJDJ Asked for interview with judge % within JUROUTCM 14.3% 21.6% 21.6% 42.4% 100.0%
Final outcome of jury selection 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 130.371a 3 .000
Likelihood Ratio 90.905 3 .000
Linear-by-Linear Association 75.347 1 .000
N of Valid Cases 384
a- 0 cells (.0%) have expected count less than 5. The
minimum expected count is 5.87.
Forty nine initial jurors state that they have been witnesses in a court case
(Table 5). Of these, 35 are white (71%), 9 are African American (18%), and 5 are
Hispanic (10%). Fourteen of those who say they have been witnesses end up on the
seated jury: 11 white (79%), 2 are African Americans (14%), and 1 is Hispanic
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(7%). However, 4 of the 9 initial African American jurors who have been
witnesses are excluded by the prosecution in the peremptory challenge phase (44%),
while 9 out of the 35 white jurors (26%) are excluded by the prosecution. Five out of
35 white jurors are excluded by the defense during the peremptory challenge phase
(14%), but only 1 African American is excluded by the defense (11%). Finally, 11
out of the 35 white jurors who have participated as witnesses are seated on the final
jury (31%) and 2 out of 9 of African Americans who have previously been witnesses
make it on the seated jury (22%).
Furthermore, almost 20% of all of the initial African American jurors have
been a witness in a previous trial compared with 13% of white initial jurors, yet a
proportionately smaller number of African Americans make it onto the seated jury.
A potential juror with previous experience as a witness appears to affect the chances
of remaining on a seated panel (28.6% of those who have been a witness are seated,
compared with 45% of those with no witness history). In addition, an African
American with previous experience as a witness has less of a chance ending up on a
seated jury than a white potential juror.
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Table 9: History as a Witness and Final Outcome of Jury Selection
JURWITNE Ever been a witness in a trial JUROUTCM Final outcome of jury selection Crosstabulation
JUROUTCM Final outcome of jury selection
1 excused 2 challenged
for cause by 3 challenged
bv iudoe prosecution by defense 4 seated Total
JURWITNE Ever been 0 No Count 37 70 76 149 332
a witness in a trial % within JURWITNE Ever been a witness in a trial 11.1% 21.1% 22.9% 44.9% 100.0%
% within JUROUTCM Final outcome of jury selection 71.2% 84.3% 91.6% 91.4% 87.1%
1 Yes Count 15 13 7 14 49
% within JURWITNE Ever been a witness in a trial 30.6% 26.5% 14.3% 28.6% 100.0%
% within JUROUTCM Final outcome of jury selection 28.8% 15.7% 8.4% 8.6% 12.9%
Total Count 52 83 83 163 381
% within JURWITNE Ever been a witness in a trial 13.6% 21.8% 21.8% 42.8% 100.0%
% within JUROUTCM Final outcome of jury selection 100.0% 100.0% 100.0% 100.0% 100.0%
Chi-Square Tests
Value df Asymp. Sig. (2-sided)
Pearson Chi-Square 16.5443 3 .001
Likelihood Ratio 14.369 3 .002
Linear-by-Linear Association 13.207 1 .000
N of Valid Cases 381
a- 0 cells (.0%) have expected count less than 5. The
minimum expected count is 6.69.
Quantitative Analysis: Phase II
The second phase of the quantitative data analysis utilizes an instrument
designed to document the sex and gender of the courtroom players by trial
(Appendix B). I designed an SPSS dataset to reflect documented information
(bytrial.sav). Included in this dataset are type of trial, verdicts, and charges for use in
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future research. Analysis of the data reveals a severe racial imbalance between the
race of the courtroom staff and that of the defendants. All judges in the 13 trials are
white males except for one African American male judge in Trial #7 and a white
female judge in Trial #11. Across 13 trials, 33 attorneys are represented by 14 white
prosecutors and 11 white defense attorneys; 3 African American prosecutors and one
African American defense attorney; and one Hispanic and one Asian prosecutor.
All African American prosecutors prosecute African American defendants and
the singular African American defense attorney represents an African American
female defendant. All 13 courtroom clerks are white females except for one Hispanic
female clerk and one white, male clerk. All bailiffs are white males except for two
female bailiffs and one African American bailiff. All court reporters are white
females except for a white male court reporter in two trials. In other words, most
courtrooms reflect an extremely white environment. Whites represent 88% of all
official courtroom staff, but only 15% of defendants.
Qualitative Analysis: Phase III
I maintain that no one can sit in a courthouse day after day as I did for this
research and not be left with a deep sense of racial imbalance in the current judicial
system. Hours of waiting outside the jury assembly room watching shackled
prisoners shuffling up and down the hallways in an array of jumpsuit colors leaves me
with a hollow sense of justice. Primarily young people of color, heads bowed with
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desperate, anxious eyes; these people do not look dangerousthey look empty and
defeated. This research has left me more determined than ever in my attempt to
understand how a country built on acceptance and freedom ends up with courthouse
hallways that look like this.
The following qualitative documentation results from days spent observing
jury selection in the Denver District Court. The events mentioned in the synthesis
represent the hours spent watching jury selection and the pages written about them
and exist as examples of patterns repeated over and over again in the observed
process.
Introduction: A Typical Day for Jury Selection Research
Seventy people are initially called into the hallway. I wait outside of the jury
assembly room number 431 as usual, on a Monday morning. The pool is so large this
morning that prospective jury panels are called even before respective courtrooms are
ready. Two panels of 70 or more individuals are called into the hallway and then sent
two doors down to the city council assembly room until they are called again into a
courtroom. This is done to alleviate the crowd in the jury assembly room. A busy day
lies ahead. I ask the first young woman clerk who has called her list of names and
numbers, whether she is calling a criminal case, I cant answer that right now. Did I
call your number? No.. .1 am here to observe jury selection. Oh, no.. .this is a
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civil case, but there will be several criminal trials called today including a murder
case she explains in a much more helpful tone. Okay, great.. .thank you. I
respond.
This is just one variation of a familiar dance that takes place in the hallway
outside of room 431 in the Denver District Courthouse. The clerks appear flustered
and on the verge of a breakdown. Nothing happens systematically or orderly and
most of the prospective jurors are herded around like lost lambs. I must insert myself
into the fray to find out what type of trial the jury is being called for and then
hopefully and innocuously become part of the process that day. Eventually, the panel
for the murder trial lines up outside of the city council office and I prepare to follow
them to courtroom number 11. I always follow the last prospective juror to make sure
that I dont take a seat from someone in the official group. I try hard to keep a low-
profile and I am always conscious that the jurors take precedence over me for the day.
Its standing room only by the time the last juror gets to the doorway. I realize that it
will probably be a couple of hours before a seat frees up and since I must document
all of what I observe today, I require a seat. I back quietly out of the room and head
off to wait for another panel to be called.
Luckily, a clerk has just called about 40 people to the hallway. She is a bit
older and seemingly less flustered than usual during this process. I wait for her to
take a breath and ask her if she is calling a criminal trial. Yes. Can you tell me
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which courtroom? Right there, she answers bluntly pointing to the doorway
across the hall. Great I say and line up behind the group. It is always a mystery to
find out what kind of trial I will get. What is less of a mystery is who will be sitting
at the defendants table. Once again I enter and see a young African American
man...shoulders hunched forward...head hanging over the defense table. Unique to
this young man is the pad of paper and pen sitting in front of him. Usually only the
attorneys have stacks of papers and binders in front of them. The attorney is a
youngish white woman. She looks pale and tired. She has sharp features and tosses
her head with little jerky movements. She takes a Dixie cup from the upside down
pile that sits between her and the defendant. She offers to pour him some water from
the diner style coffee thermos. This gesture makes him look young and vulnerable.
All rise the clerks voice booms as the judge enters the courtroom. A large
white, middle-aged judge enters and takes his seat on the bench. He announces the
case name and number. This will be a second degree burglary and sexual assault case
allegedly committed approximately eight months ago. I take another look at the
young man at the defendants table; his youth and vulnerability now in question. I
immediately wonder whether he has been in jail since his arrest and try to picture him
in a jumpsuit surrounded by much bigger and tougher looking guys. He cant be more
than 5 feet 5 inches when he stands and I notice that his pants are huge. Unlike the
young men on the outside; these are thick corduroy pants and he wears them pulled
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up around the waist where they sit stiffly on either side, gaping around his slight
frame. Who would have brought him such ill-fitting clothes? I wonder if these are
his own and think maybe his attorney has asked that he pull them up to prevent him
from appearing thuggish. Why wouldnt a family member have provided something
more suitable? I look around the courtroom. Other than the big white judge, the
middle aged white clerk, the older white female court reporter, the extremely bored
looking white male bailiff, the middle aged black female prosecutor, and the
defendants attorney; the jury and I are the only ones present. No family member is
here to watch the selection of those who will decide the fate of this young man.
Most of the potential jurors have books, newspapers, briefcases, and cell
phones. When the clerk asks that they silence the phones, I cant help but notice
several people do so begrudgingly. I am struck by how put out many of the
prospective jurors appear as their attitudes betray a sense that their freedom is being
impinged upon todaythe young, black man at the defense table invisible to them. I
wonder if the defendant remains more inured to this attitude than I. I also wonder if
he realizes that his future will be determined by this sea of detached (mostly white)
faces.
The judge explains the framework for the jury selection process and the clerk
calls by name and number 25 people to take their seats in the jury box. Usually in
criminal cases where a jury of twelve, plus one alternate will ultimately be selected;
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25 initial panel members will be called to the box. These 25 potential jurors take
their seats beginning in the back row of the jury box and starting with the seat closest
to the judges bench. After those seven seats are filled, the second row of seven seats
fill and finally the prospective jurors fill a row of 11 chairs set up in front of the jury
box. The remaining 40 prospective jurors stay seated in the gallery. I sit as close to
the defendant as possible; usually right behind him so that I have a similar perspective
of the jurors and the selection process as he does. Today, I cannot see the end of the
front, bottom row because the podium blocks my view. Since the podium is on
wheels, I wonder why the defense attorney does not move it so that her client can see
the faces of the entire panel. As voir dire begins, the lack of eye contact becomes
particularly bothersome and the defendant keeps straining towards his lawyer to try to
see who the disembodied voices are attached to.
Three jurors are immediately excluded for cause. Juror number seven does
not speak English and juror number six is not an American citizen. The judge excuses
juror number four when she describes herself as mentally ill; a condition for which
she is on medication. Three individuals from the gallery replace each of these jurors
and the judge continues voir dire. After observing and synthesizing many jury
selections certain patterns emerge. Primary among these; the squeaky wheel usually
works. In this case juror number 7 (a young, white male who has replaced the non
English speaking juror) begins to raise his hand in response to virtually every
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question the judge poses. Juror number 23 joins in (a young, white, male firefighter),
along with juror number 11 (an Hispanic middle-aged male). Finally, juror number
11 asks to speak with the judge in chambers and is immediately excused for cause.
Despite juror number sevens attempts; he is not excluded until the peremptory
challenge phase when he is the defenses fifth challenge.
The pattern with jurors such as these is that they raise their hand after
virtually any question that may apply to them. In this case, these include knowing a
police officer (both juror number 7 and 23 claim to have distant relatives that are
somehow related to law enforcement), needing to be at work, knowing someone who
has been a party to a case, taking classes relating to law, etc. Although some of the
answers to these questions might cause valid concern, it is important to note that a
similar pattern of responses emerge in most jury selections. In turn, most judges will
typically ask whether the juror .. .can have a great uncle who was once a cop in
Georgia and still remain impartial while hearing evidence in a trial. In other words,
most judges make an attempt to shame potential jurors into admitting that they can
remain unbiased.
After observing multitudes of these exchanges, I note that most jurors become
savvy to the point of this questioning and begin to raise their hands only when they
feel that a particular issue might truly affect their ability to be impartial towards all
sides during the trial. This exchange between judges and potential jurors occurs time
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and time again during every jury selection observed for this research. The familiar
pattern allows me to become acutely aware when prospective jurors raise their hands
repeatedly and for innocuous reasons. I cannot definitively discern whether the
perseverance of these jurors is an attempt to get out of jury duty. However, the
persistence of some jurors supports the fact that the squeaky wheel does appear to
work. Even if it does not always work on the judge during his voir dire, it will
ultimately be effective during the peremptory challenge phase; after all, what attorney
wants a juror seated who obviously does not want to be there.
Patterns Observed During Jury Selection across Thirteen Trials
Four African American males begin as part of the 25 seat panel. Two of these
are young men of a similar age to the defendant. An aspect of my research that I
struggle with is whether or not this makes a difference. Who is to say that these
mens life experiences are anything like that of the defendants? Without having
heard any testimony concerning the background of the defendant, I cannot make the
presumption that these four males have anything in common with him or that they
would be more or less fair than any other juror. However, my experience as a citizen
of the United States makes me sensitive to concepts of racism and to the shared
experiences of many African American men who are profiled and often harassed by
the establishment including security guards, store owners, and police officers.
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Some of these assumptions rise to the surface in the courtroom. Juror number 14 (a
young African American male) raises his hand in response to the judges voir dire
question concerning whether any one of the prospective jurors has been a party to a
criminal case and explains that he was a defendant in a case involving the assault of a
police officer.
Judge: Did your case go to trial?
Juror 14: No
Judge: Did you feel you were treated fairly by the police?
Juror 14: No
Judge: Did you feel you were treated fairly by the District Attorneys office?
Juror 14: No
Judge: You are excused.
Similarly, juror number 18 responds to the prosecutors voir dire.
Juror 18: I was bom and raised in Denver. I get stopped all the time here. I havent
gotten a speeding ticket in over 7 years. I have never caused an accident. I get pulled
over all the timestared at by the cops. They are constantly shaking me down and I
am angry!
Judge: Mr.__________you are excused
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Full Text

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JURY SELECTION IN DENVER COLORADO DISTRICT COURT: IN SUPPORT OF ANTHONY GIDDENS' STRUCTURATION THEORY by Karen Teresa Stockton B.A., University of Colorado, 2005 A thesis submitted to the University of Colorado at Denver in partial fulfillment of the requirements for the degree of Master of Arts Sociology 2006 f /

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This thesis for the Master of Arts degree by Karen Teresa Stockton has been approved by Date

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Stockton, Karen Teresa (Master of Arts, Sociology) Jury Selection in the Denver Colorado District Court: In Support of Anthony Giddens' Structuration Theory Thesis directed by Assistant Professor Yili Xu ABSTRACT Racism remains a core dilemma for the American justice system and specifically for jury selection. The process of jury selection includes a long history of racial bias which contributes to an overarching lack of faith in the judicial system. The United States government has historically attempted to legislate jury selection practices in an effort to make the process representative and fair. Previous research concerning jury selection addresses the jury pool from which potential jurors are summonsed. However, little research exists surrounding the transition from an "initial" panel to a "seated" panel for a specific trial or the race implications which occur during this transition. The courtroom observations analyzed in this research illuminate a persistent level of racial bias in the jury selection process and therefore serve as a springboard towards further investigation into the process of selecting a jury. This research draws on observations of thirteen jury selections in the Denver Colorado District Court to investigate racial bias during jury selection within the

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paradigm of Anthony Giddens' Structuration theory. First, I examine Orlando Patterson's comprehensive research on slavery and its consequences to illustrate the social structure of domination. Second, I analyze data regarding the "makeup" of the courtroom during jury selection observations to demonstrate Giddens' intervening modality of facility. Third, I compare demographic data between "initial" panels and "seated" panels to support Giddens' interaction dimension of power. Finally, I employ insights gained through written memos of each trial to examine the role of agency in Structuration exemplifying the recursive relationship between the production and reproduction of social structures. The complex interplay between dimensions outlined in Giddens' model serve as an appropriate tool to help gain a deeper understanding of issues surrounding one of our nation's most complicated and potentially destructive social dilemmas; that of racism. The courtroom and the jury selection process afford a rich and dynamic arena in which to test Anthony Giddens' Structuration theory. This abstract accurately represents the content of the candidate's thesis. I recommend its publication. Signed

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DEDICATION I dedicate my thesis to Mark Stockton for his unwavering support during this process. Thank you for picking up the slack without ever having to be asked. Thank you for all of the lovingly prepared gourmet dinners. Thank you for fetching me after a long day at my computer with the promise of a cocktail and the sunset. Down every path I have ever taken, thank you for never asking why and always asking why not!

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ACKNOWLEDGEMENT I would like to thank Dr. Yili Xu for sharing his expertise in statistical modeling and analysis, which has served to push me towards becoming more proficient at quantitative analyst. Thanks to Dr. Candan Duran-Aydintug for challenging me with strict research methods, aiding in the final outcome of this research. The experiences in Dr. Leigh Ingram's classes have provided me with many insights into the judicial and correctional arenas, which became invaluable contributions to my thesis. Finally, I would like to thank Dr. Virginia Fink for her constant inspiration and support. Thank you for the many office hours and lunches where you graciously allowed me to pick your brain. Our discussions enlightened me to the rich world of theory, for which I am forever grateful.

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TABLE OF CONTENTS Figures .................................................................................. .ix Tables ..................................................................................... x CHAPTER 1. INTRODUCTION ................................................................... 1 Purpose of the Study ............................................................ 5 Theory Link ..................................................................... 8 2. REVIEW OFTHELITERATUR ............................................. 13 Jury Selection: An Historical Context.. .................................. 13 Voir Dire ....................................................................... 30 Peremptory Challenges ...................................................... 36 Jury Reform ................................................................... 43 Minorities and Jury Selection ............................................... 52 Jury Consulting ............................................................... 54 3. METHODS ......................................................................... 58 Sampling ................................................................... .... 58 Operationalization ............................................................ 60 Instruments ..................................................................... 63 4. PROCEDURES .................................................................... 66 vii

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5. DATA ANALYSIS ............................................................... 69 Quantitative Analysis: Phase 1.. ........................................... 69 Quantitative Analysis: Phase II ............................................ 81 Qualitative Analysis: Phase III ............................................. 82 Synthesis ....................................................................... 97 6. JURY SELECTION: IN SUPPORT OF ANTHONY GIDDENS' STRUCTURATION THEORY .................................................. 99 Orlando Patterson and Anthony Giddens' Concept ofDomination ... 99 Jury Selection and Giddens' S tructuration Theory ..................... 1 05 7. CONCLUSIONS ................................................................. 111 APPENDIX A. INSTRUMENT: BY JURORDATAMATRIX ............................ l14 B. INSTRUMENT: BY TRIAL DATA ....................................... ... l15 C. DETAILS OF JURY SELECTION PROCESS .............................. 116 REFERENCES ................................................................................ 119 viii

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LIST OF FIGURES Figure 1. A Visual Presentation of Research Plan .................................................. 7 2. Structures as Employed in Social Practices ............................................... 9 3. Structuration Theory and Jury Selection Research ..................................... 11 lX

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LIST OFT ABLES Table 1. Breakdown of "Initial" Panel and "Seated" Panel by Race ........................... 70 2. Race and Final Outcome of Jury Selection .............................................. 72 3. Exclusions of African American "Initial" Jurors ....................................... 73 4. Breakdown of Exclusions by Race ....................................................... 73 5. Breakdown of Exclusions by Race of Juror and Race of Defendant. ................ 73 6. Education and Final Outcome of Jury Selection ........................................ 75 7. Criminal History and Final Outcome of Jury Selection ................................ 77 8. Interview with Judge and Final Outcome of Jury Selection ........................... 79 9. History as a Witness and Final Outcome of Jury Selection ............................ 79 X

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CHAPTER 1 INTRODUCTION Sociologists have long been intrigued by juries as microcosms of society and social interaction. This research focuses on jury selection as a process with the potential for reflecting the larger issue of racism that exists in our culture. As a nation, the United States has endured the legacy of having forced a population onto its shores for the purpose of slavery and then "freeing" them under the auspice of integration. But something else lives and breathes within the legacy of the United States; the concept of a free, democratic society. For den:r to remain valid it must be a reality for all individuals. A judicial system that provides the accused with a speedy trial, an attorney, a jury of "one's peers," and the presumption of innocence exists as a legitimization of freedom and democracy for Americans. If a distinct population remains unprotected by these basic principles, then an important aspect of the democratic spirit erodes. The conundrum of integrating slaves into a fair and just society may lie at the root of enduring racism in this country. The transition from slave or slave owner to neighbor seems to have been grossly underestimated. Legislation and constitutional law have helped overcome some of the transitional dilemmas posed by abolishing slavery. This research employs the courtroom arena and specifically the jury 1

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selection process to illuminate the subterranean elements of racial bias that still exists in the United States. The bulk of previous research on jury selection deals with reforms to the existing system emphasizing the representative jury. Jury reform literature includes James Acker and Charles Lanier's 1993 research on capital punishment juries, which outlines five reforms for capital trials and Kathi Middendorf's 1995 research on non directive voir dire styles. Hiroshi Fukurai ( 1997) examines three affirmative action jury panel options as possible reforms to the jury system. Feddersen and Pesendorfer's (1996) discussion paper questions the unanimous jury and suggests non-unanimous juries as an option for reducing the chances of convicting the innocent. Margo Hunter addresses jury size as a means for "improving the jury system" (1996) and investigates the legitimacy and efficacy of smaller juries (the six person jury). Evaluations of judicial reforms towards a "fair" jury in Deirdre Golash's ( 1992) research illuminate a lack of effectiveness of said reforms. Previous literature has also focused on the peremptory challenge phase of jury selection. Marvin Steinberg's 1991 research discusses eliminating peremptory challenges and provides an historical perspective surrounding the consequences of the U.S. Supreme Court's decision in Batson v. Kentucky. Brian Serr and Mark Maney provide a detailed article on possible racial bias in peremptory challenges and outline strategies employed in balancing the requirement of equal protection with peremptory 2

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challenges (1988). Shari Diamond (1990) and Mitzi White (1995) each examine the relatively new area of scientific jury selection. Literature addressing specific trials contributes to an understanding of racism and juries for this research (Bowers, W. and Pierce, G 1980; Field, H. 1979; Kennedy, Tracy; Kennedy, Judith; Abrahamson, Alan 1995). Several pertinent pieces of literature cover the history, process, and procedures of jury selection and help to illuminate some shortcomings in the process (Abbot, Walter F. and Batt, John 1999; Abramson, Jeffrey 1994; Fukurai, Hiroshi 1999; Jonakait, Randolph N. 2003; Ramirez, D. 1994; Ziesel, Hans 1972). Finally, a good deal of literature investigating racial implications of juries and the jury selection process exists (Benokraitis, Nijole 1982; Benokraitis, Nijole and Keene-Griffin, Joyce A. 1982; Denno, Deborah 1981; Fukurai, Hiroshi; Butler, EdgarW.; and Krooth, Richard 1991; Johnson, S.L. 1985; Leipold, Andrew D. 1996; Rose, Mary R. 1999). Nijole Benokraitis (1982) evaluates qualifying norms enlisted in the jury selection process using questionnaire surveys distributed among courtroom staff to determine that African Americans are underrepresented during several phases of jury selection. Mary R. Rose (2005) compiles data from 194 interviews of excused and selected jurors to evaluate how jurors and prospective jurors view the jury system. Rose further conducts research based on jury selection observations. She observes 13 3

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criminal trials and assesses racial and gender implications based on peremptory challenges. Rose's findings contradict those in the present research. The population in the county where Rose's data were collected is 37% African American and African Americans make up 32% of those questioned in the peremptory challenge phase. Denver County's African American population is approximately 11% and those questioned in the peremptory challenge phase are 12% African American. This may account for the contradictory results between the studies. In addition, Rose does not mention the instruments employed in her study that may contribute to an understanding or explanation of the difference in results. The deficiencies in the literature on jury selection primarily rest in the lack of research based on actual courtroom observations. Other than Rose's research, no other analyses of courtroom observations during jury selection appear to have been conducted comparing "initial" panels with "seated" panels. Although Rose provides racial and gender breakdowns based on peremptory challenges; she neglects to include data on the "makeup" of the courtroom participants. Rose does not document the types of questions asked by the attorneys or their race and gender. Finally, none of the previous literature reviewed for this research attempts to make use of theory as a means to help explain the dilemma of racism in our culture that may manifest itself in under-representation of African Americans on juries. Anthony Giddens' Structuration theory emerges as a good fit for this research since analysis concerning 4

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structure, agency, and the reproduction of systems of interaction are evidenced in the culmination of the data. The dearth of documented courtroom observations during jury selection keeps the process protected from scrutiny and contributes to the perpetuation of practices that may result in juries for minority defendants. All parties involved in the judicial system as well as the general population will benefit from exposure of the jury selection process. Purpose of the Study This research employs a concurrent transformative mixed methods research design (Creswell, 2003, p. 219) guided by Anthony Giddens' Structuration theory. This design facilitates the use of quantitative, demographic data collection and analysis as well as the incorporation of the researcher's observations outside of the quantitative constraints to support Giddens' theoretical perspective. The goal of this research is to gain an understanding of the racial issues evidenced in jury selection through the lens of Giddens' Structuration theory. The mixed method design fits well with the research as it shines a unique light on jury selection by creating a well rounded, in-depth assessment of the process and illuminating the issues of racial bias that contribute to under-representation of African Americans on seated juries. 5

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I apply quantitative evaluation and analysis of variables documented during 13 jury selections in the Denver County District Court. I record data for the independent variables race, gender, education, criminal history, interviews with judge, and history as a witness for analysis and comparison between the "initial" jury panel and the "seated" panel (dependent variable). I document independent variables for all courtroom staff to provide a clear picture of the "makeup" of the courtroom "players" during the jury selection process. I gather qualitative data concurrent to quantitative data collection based on the compilation and interpretation of notes taken during the 13 observed jury selections. I further examine data from both phases of collection with an emphasis on the quantitative data for evidence of racial bias in the jury selection process. The qualitative data illuminate nuances in racial bias practices that help support and explain relationships discovered in the quantitative phase. I further provide a synthesis of the three approaches within Giddens' theoretical framework (Figure 1). The two instruments used (Appendix A and B) ensure reliability in the quantitative data collection. I utilized the same instruments in an exploratory research project conducted in the Denver District Court in 2004-2005 to help establish reliable data collection procedures for the current research. Detailed accounts of the jury selections written immediately after the observations ensure reliability. All three phases of data collection emerge as valid towards the understanding of racial bias 6

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during the jury selection process and each phase represents a unique perspective from which to support Giddens' Structuration theory. Orlando Patterson Independent Variables Race Gender Education Criminal History Interview with Judge History as a Witness Anthony Giddens' Structuration Theory Domination: -Authoritative Resources Authoritative Control by the White Majority Facility : -Capacity Participation in the Judicial System Power: -Agency Racial Bia s During Jury Selection Figure 1: A Visual Presentation of Research Plan 7 Dependent Variables Excused "for cause" Prosecution Peremptory Challenge Defense Peremptory Challenge Seated on the Final Jury

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Theory Link Giddens developed Structuration theory in response to what he considers the limitations of the duality between structure and agency in previous social theory. Giddens explains that "Structures are created by humans, but they, in tum, constrain and enable human action" (Kivisto, 1998, p. 148). According to Giddens, both agency and structure interact, facilitating an affect of one upon the other: "The structural properties of social systems do not exist outside of action but are chronically implicated in its production and reproduction" (Giddens, 1984, p. 374). The term "Structuration" refers to the act of creating and responding to structure through agency. Giddens' Structuration theory centers on his belief in the contribution of agency towards the process of "doing" and/or "producing" structure: ... every social actor knows a great deal about the conditions of reproduction of the society of which he or she is a member" (Giddens, 1979, p. 5). Structuration theory exists as a circular and recursive exchange between agency and structure that inevitably creates social processes. Giddens disagrees with the traditional duality that exists between the subjective and objective in both structure and agent in most social theory (Stones, 2005, p. 6) and emphasizes the ... mutual dependence of structure and agency" (Giddens, 1979, p. 69). 8

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STRUCTURE signification domination legitimation (MODALITY) interpretive scheme facility norm INTERACTION communication power sanction Figure 2: Structures as Employed in Social Practices (Giddens, 1979, p. 82 emphasis added) Figure 2 illustrates an interplay between "Structure" (the social systems: signification, domination, and legitimation) and "Interaction" (action of agents manifested in communication, power, and sanction). The term "Modality" in Giddens' model serves to" ... clarify the main dimensions of the duality of structure and interaction" (Giddens, 1984, p. 28), by enlisting interpretive schemes, facilities, and norms. Rob Stones (2005) explains that ... Giddens sees agents not only as always rooted in a structural context, but also as always and inevitably drawing upon their knowledge of that structural context when they engage in purposeful action" (p. 17). Although complex interchanges among dimensions occur, the modality of facility exists as a necessary element for enabling power (through agency) to draw on domination. This research examines the relationship between the structural domain of dominance and the interaction domain of power accessed through the modality of facility by employing data garnered through observations of the jury selection process. 9

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Giddens' dimensions of structure fall into two categories: rules and resources. For the purpose of the present research, I focus on the structural dimension of domination, which in Giddens' theory exists as resource-based. In Structuration theory, resources emerge as either authoritative (control of people) or allocative (control of material objects). The interaction dimension of power exists as the action that occurs when the modality dimension of facility "connects" structure with interaction, manifesting itself in the action taken by the agent within a social system. Giddens further considers facility, in relation to authoritative resources, as the capacity for an actor to contribute towards reproduction or change of structure. Previous research testing Giddens' Structuration theory include Ogden and Randall's (2005) investigation into the waning participation of African Americans in baseball; Gross and Simmons's (2002) research on intimacy; and research in the economic and IT environments. The present research attempts to illustrate Giddens' Structuration theory through examination of Orlando Patterson's dissertation on slavery and its consequences, as well as through analysis of jury selection observations. I hypothesize that the social system of domination stemming from authoritative resources controlled by the dominant white majority will facilitate participation in the judicial system (specifically jury selection) manifesting in the power to implement racial bias (action) during the jury selection process (Figure 3). 10

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DOMINATION (authoritative resources) Orlando Patterson's consequences of slavery FACILITY (capacity) Participation in the judicial system POWER (structures translated into action through agency) Racial bias during jury selection Figure 3: Structuration Theory and Jury Selection Research By incorporating Orlando Patterson's comparative study on slavery and its consequences (1982, 1998) with Anthony Giddens' Structuration theory, I hope to "get under the skin" of modem racism by providing a deep, meaningful, and substantive portrait. I do not mean to minimize the strides we have made as a nation in combating racism, but rather to help gain a richer understanding of the everpresent, persistent, and underlying aspects of racial bias. In order to gain an understanding of jury selection and its relationship with racism, it is important to put it in historical context. In doing so, a pattern of legislative attempts to curb racial bias within the jury system becomes evident and 11

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support the prospect that an ongoing cycle exists between authoritative structures in the judicial s ystem and the power exerted over minorities within the system. To this end, a substantial amount of the following literature review addresses historical legislation surrounding the process of jury selection 12

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CHAPTER2 REVIEW OF THE LITERATURE Jury Selection: An Historical Context The origin of the jury system in the United States stems from England and Common Law Trial by jury began to gain popularity in England replacing trial by ordeal whereby various forms of torture were implemented to determine the guilt or innocence of a defendant. The initial path towards jury trials began with the use of individuals called compurgators in A.D. 900. "Each side in a civil suit could select 18 compurgators, usually friends, and the 36 would decide the question" (Abbott and Batt, 1999, p. 2-1). Compurgators might be called in to judge a non-notorious defendant charged with a non-violent crime. Twelve or so cornpurgators were called in by the defendant to speak to his credibility (Abbot and Batt, 1999, p. 2-1). The use of jurors in criminal trials evolved from this practice. Early jury responsibilities included determining the law as well as evaluating the facts of the case. The basis for the evolution of the jury in the United States is seated in Article III, section 2 of the constitution: "The Trial of all Crimes, except in Cases of Impeachment; shall be by jury." Amendment VI to the Constitution further empowers the jury: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." The phrase "a jury of one's peers" does 13

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not appear in any portion of the Constitution, but finds its basis in England Common Law. By the end of the nineteenth century, the jury lost substantial support and respect from the public primarily due to outrageous verdicts and settlements in civil cases (Abbot and Batt, 1999, p. 2-4). In response, judges in most states took from both civil and criminal juries the power to "determine law" (Abbot and Batt, 1999, p. 2-3). Proponents appealed for an amendment to restore the determination of law back to the criminal jury. This appeal addressed the concerns that juries should not be expected to uphold a law that they believed might go against natural law or justice. In 1855 a statute passed giving the power back to the criminal juries to determine law. In the case of Commonwealth v. Anthes ( 1855) Lemuel Shaw "reaffirmed the right of the criminal trial judge to give binding instructions on the law to the jury" (Abbot and Batt, 1999, p. 2-5). In Spaifv. United States (1895) the Supreme Court made a critical decision and "adopted the PorterAnthes precedent for the federal judiciary, marking the almost universal demise of the criminal jury's law-finding powers" (Abbot and Batt, 1999, p. 2-5). By the end of the nineteenth century only Indiana and Maryland gave the jury the right to "find" the law. The transition of the jury from determiners of law to interpreters of the facts emerges as the first in a series of reforms that would ultimately limit the power of the jury. 14

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The Supreme Court, legislatures, and constitution makers gave some power back to the jury in the nineteenth century by limiting the rights of judges to comment on evidence. This trend reinforces the "Distinction between law-finding functions of the judge and the fact finding of the jury" (Abbot and Batt, 1999, p. 2-5). By the end of the century two thirds of the states had abolished the right of judges to comment on evidence and the right of fact-finding became almost exclusively that of the jury's. However, loss of a jury's power to determine law led to their general loss of prestige. By the nineteenth century the public increasingly considered criminal juries as soft on crime. At the same time, juries awarded plaintiffs in civil cases exorbitant rewards while taking longer amounts of time to rule, culminating in the common practice of settling cases out of court. Reforms emerged to counteract lengthy deliberation processes, including allowing cases to be decided by non-unanimous juries (Abbot and Batt, 1999, p. 2-5). Gradually, the once sacred institution of a trial by jury appeared to be losing ground. The realization by the public of a weakness in determining membership contributed to a growing loss of faith in the jury process. The industrial revolution spawned higher crime waves in cities leading to criticisms of the criminal judicial process as ineffective and permissive. Extremely forgiving juries appeared in the nineteenth century and routinely found obviously guilty defendants innocent or excused their crimes completely. Juries supported their decisions by excusing 15

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defendants using a "state of delirium or self defense" rationalization. In other instances juries might find an obviously guilty individual guilty of a much lesser crime (Abbot and Batt, 1999, p. 2-6). The deficiencies in the nineteenth century jury selection methods stemmed from the selection of both the jury pool and the seated jury in particular trials. According to Abbot and Batt ( 1999) "methods of gathering jurors reportedly had shortcomings in both form and execution" (p. 2-6). Bystanders might be gathered by sheriffs who could deem anyone with twenty pounds to their name acceptable. Unease surrounded this method of selection due to the possibility that unqualified jurors might be left to administer law. In response, appointed commissioners compiled names of acceptable jurors from tax and voting lists (Abbot and Batt, 1999, p. 2-7). Police often ignored the lists opting instead to select potential jurors from courthouse bystanders. A fine might be paid as a method for avoiding jury duty. This became a common occurrence resulting in the necessary use of courthouse bystanders to stand as the jury pool. Often these bystanders consisted of desperate members of society who hoped for a warm place to spend the day or for some other form of compensation. Evasion emerged as a common practice by potential jurors in the nineteenth century. Many citizens shirked their duty to jury service. Complaints in Kentucky, New York, Missouri, Mississippi, New Jersey, Massachusetts, and Ohio were 16

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believed to reflect most other states in the nation concerning poor representation on juries. JudgeR. A. Hill of Mississippi wrote the editors of the Central Law Journal in 1874 complaining that "sheriffs and their deputies routinely select loafers and other professional jurors instead of more responsible men" (Abbott and Batt, 1999, p. 2-8). Abbott and Batt ( 1999) suggest a "national inattention to jury service" (p. 2-8) during this time and claim that even if professionals and businessmen appeared on the list, they often received exemptions from serving. Although evasion of service remained a problem in the nineteenth century jury system, other obstacles existed. Namely, the difficulty in convicting a defendant due to the fact that common law prosecution had zero peremptory challenges while the defense might have as many as 35. This practice of providing the defense with a disparagingly large amount of challenges left the prosecution with no means to eliminate jurors suspected of perjury or bias. Abbott and Batt (1999) quote an experienced Kentucky trial lawyer from 1849: "men are placed upon the jury, sometimes upon their mere allegation that they have formed no opinion in the case, and who go there determined to acquit the accused" (p. 2-8). "In 1855, A. Oakey Hall, district attorney for New York City, contended that as few as two peremptory challenges for the prosecution would help prevent the defense from packing the jury with friends; an all-too frequent practice under the existing system" (Abbott and Batt, 1999, p. 2-8). 17

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Reforms addressing the selection process of juries in the nineteenth century mainly revolved around the use of peremptory challenges for both the defense and the prosecution. Early reforms allowed the prosecution two peremptory challenges in an attempt to prevent the defense from eliminating .... from all panels every man of force and character and standing in the community, and to assemble a collection in the jury box of nondescripts of no character, weak and amenable to every breeze of emotion, however maudlin or irrelevant to the issue" (Taft 1905). Both New Jersey and New York implemented the practice of even amounts of peremptory challenges for the defense and the prosecution, but most other states did not. In the absence of addressing the unbalanced use of peremptory challenges, new attempts for updating the peremptory challenge process continued into the early twentieth century. In the case of People v. Mather (1830), the Supreme Court ruled that a prospective juror was disqualified if he had formed an impression of the guilt or innocence of the defendant from reading the newspapers, even though his opinion was not fixed and might be changed as a result of evidence introduced at the trial ... trial courts in a number of states often invoked the most extreme version of the Mather case, allowing disqualification for any opinion formed from the reading of newspapers (Abbott and Batt, 1999, p. 2-9). This practice led to mass eliminations of jurors. In the antirent trials of 1845, just ten jurors out of four thousand qualified to sit on the jury. In the tradition of trying to shirk jury duty, many prospective jurors attempted to read newspapers or find any 18

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information possible (i.e. from lawyers involved in the case) to disqualify themselves from jury duty. As a result of the Mather's ruling, juries often consisted of the lowest level of society. A. Oakey Hall stated that "either newspapers would have to be abolished or intelligent men could never serve on juries" (New York Times, Dec. 15, 1855). According to Abbott and Batt (1999) Between 1864 and 1880 some states including Connecticut, Ulinois, Indiana, Iowa, Maryland Michigan, New Hampshire, New York, Ohio, and Pennsylvania, by statute and court decision modified the rule so that a prospective juror could serve on a jury even if he had formed an opinion about the guilt or innocence of the defendant from reading the newspapers, as long as he swore that he would base his decision in the case solely on the evidence presented therein (p. 2-10) This ruling, combined with the number of peremptory challenges allowed by the defense and the less than enthusiastic willingness of educated citizens to serve as jurors, resulted in easily packing the bystanders with individuals sympathetic to the defense's cause who would then be available when the regular jury panel was eliminated. As Abbott and Batt (1999) explain Even if the defense did not deliberately seek to place venal men on the jury, the so-called professional jurors, the courthouse loungers with little visible means of support who needed the paltry jury fees to survive, were readily available for service and too often formed a part of the jury (p. 2-10). The unstable basis for selection of juries in the nineteenth century contributed to an "outbreak of vigilantism in the United States" (Abbott and Batt, 1999, p. 2-11). 19

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Most attributed the outbreak directly to the inadequacy of the jury. As a result, the following radical jury reforms were called for: 1) eradication of peremptory challenges 2) disposing of the unanimous jury requirement 3) implementation of elite juries devoid of "loungers, loafers, and courthouse bums" (Abbot and Batt, 1999, p. 2-11 ). By the late nineteenth and early twentieth centuries some of these jury reforms had been implemented. Juries consisting of six members were allowed (although juries of this size had to be unanimous), non-unanimous juries in misdemeanor and non-capital felony cases were utilized, and judges emerged who took more control over the voir dire process. Some states reduced the number of challenges allowed. In the twentieth century the power to determine sentences was taken away from the jury in many instances with the exception of death penalty cases. Although debate concerning the validity of juries and the need for jury reform continued, the fact remained that the jury itself was losing importance. Following the Civil War, prosecutors began to plea bargain, leading to a drastic drop in the amount of cases making it to a jury trial. Crowded dockets, longer trials due to an emphasis on due process, the rise of modem police forces and an attendant increase in arrests, and the emergence of modem prosecutors vitally interested in achieving winning conviction records had more to do with this development than dissatisfaction with the jury system. But the result was a dilution of the significance of the jury (Abbott and Batt, 1999, pp. 2-11 and 2-12). 20

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The participation of women and minority groups continues to exist as an important consideration in addressing the fairness of jury selection and representation. Until the twentieth century jurors were predominantly white, adult males. In 1898, Utah became the first state to allow female jurors. Women received the right to sit on juries with the ratification of the nineteenth amendment in 1920, but their participation remained theoretical rather than actual. "Some states required women to affirmatively register to serve on juries; consequently, jury panels were overwhelmingly male. The Supreme Court did not invalidate this practice until 1975" (Abbott and Batt, 1999, p. 2-13). Similarly, only one northern state allowed African Americans to serve on juries before the Civil War. In post Civil War United States, all states allowed African Americans to serve on juries, but in practice and due to the high level of racism that existed, mostly all white, male juries prevailed well into the 1930's. This fact contributed to harsher treatments of African Americans in the criminal justice system. In 1975, the Supreme Court ruled that "criminal defendants had a constitutional right to a jury drawn from sources representative of all segments of the community" (Taylor v. Louisiana, 1975). The Taylor decision remains as a critical ruling; however, an important distinction exists between the requirement that a jury must be drawn from representative sources and a requirement that the seated jury reflect such standard. 21

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With the adoption of the United States Constitution, all but one state allowed only men with property or who paid taxes to serve on juries. Three states allowed only white men to sit on juries and one state disqualified atheists. By the second half of the nineteenth century, all citizens allowed to vote could also sit on juries. Jury pools thus grew to include all white, male citizens. Although the Fifteenth Amendment gave African Americans the vote it did not address jury pool participation specifically. The Supreme Court held in Strauder v. Virginia ( 1880) that "a state statute expressly prohibiting black people from jury service violated the equal protection clause of the Fourteenth Amendment" (Jonakait, 2003, p. 115); therefore, African American men could not legally be kept out of jury pools. However, the court concluded that a state could prescribe the qualifications of its jurors ... It may confine the selection to males, to freeholders to citizens, to persons with certain ages, or to persons who have educational qualifications. We do not believe the Fourteenth Amendment was ever intended to prohibit this ... lts aim was against discrimination because of race or color (Strauder v. Virginia, 1880). In other words, African Americans could not be kept out of the jury pool because of race, but other qualifications could be mandated that would effectively eliminate them from the pool. The Strauder decision also held that eligibility could be restricted to men. 22

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Although women earned the right to vote in 1920, only some states automatically granted them eligibility to sit on juries while many others did not permit this until decades later. The belief that women needed protection from the corrupting influence of trials prevailed into the twentieth century. Considered too emotional with an inability to remain rational and as necessarily obligated to stay home and take care of domestic chores, women's exclusion from jury participation continued. Some states held that exemptions must be claimed by women and other states permitted women on a volunteer basis only. As late as 1961, "when women could serve on juries in forty seven states, they had to volunteer in nineteen of those forty seven in order to be eligible" (Jonakait, 2003, p. 116). In the nineteen forties, the Supreme Court held that jury pools "from which juries were selected had to represent a fair cross section of the community" (Glasser v. United States, 1942) and in 1946 the Supreme Court invalidated jury selection procedures that excluded day laborers and women (Thiel v. Southern Pacific, 1946). In 1961 the Supreme Court upheld a "state system in which women were eligible for juries only if they volunteered" (Jonakait, 2003, p. 117). Duncan v. Louisiana ( 1968) held that "the Sixth Amendment applied to the states" (Jonakait 2003, p. 117) and finally in Taylor v. Louisiana (1975) the Supreme Court made a pivotal ruling and "confronted Louisiana s jury selection system, which did not disqualify women from service but required them to file a written declaration of their desire to serve" (Taylor 23

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v. Louisiana 1975). As a result of Louisiana's requirement for women, less than ten percent of the jury pool was female. With only William Rehnquist dissenting, the Court held that "this system denied the defendant his right to a jury trial as constitutionally guaranteed by the Sixth Amendment" (Jonak:ait 2003, p. 117). Taylor was the first case to note that federal jury pools "had to be representative of a cross section of the community" (Jonak:ait, 2003, p. 117). Since women represented a large portion of the population, excluding them amounted to violating the cross section requirement. The most important distinction remains between the courts requirement that jury pools satisfy the cross section requirement and not that the seated jury satisfies the requirement. In practice, the possibility to get a jury of six to twelve citizens to accurately represent a cross section of the community remains unlikely. Taylor establishes that potential jurors who arrive to be selected from should fairly represent the community. To achieve this representation of the community in jury pools, a list that fairly represents the community should be used to randomly select a jury pool from. In addition, Taylor only applies to criminal trials. The fair cross section requirement established in Taylor does not require the representation of every imaginable societal segment. Instead, the group must be 'large' and 'distinctive.' We know that women are covered, as are racial groups, but it is not clear what other slices of the community must be fairly represented. The defining test is hardly precise, but for a group to qualify for the requirement, it must be identifiable and its under representation must 24

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affect the jury's ability to act as a check on governmental oppression and to preserve public confidence in our criminal justice system (Jonakait, 2003, p. 120). For instance, courts have determined that Native Americans, Jews, and Mexican Americans fit the fair cross sectional criteria. However, groups such as white collar workers, blue collar workers, single moms, etc., do not. Exclusion from the jury pool is allowable if the exclusions are "narrowly tailored to serve legitimate societal interest" (Jonakait, 2003, p. 120). Randolph Jonakait (2003) uses the example of women and childcare by explaining that excluding all women because they need to care for children would be too broad, but allowing for those individuals who do have to care for children to be excluded is "narrowly tailored enough to be allowed" (p.120). Although the Fourteenth Amendment provides for the "equal protection clause" this clause is not broached unless it can be proven that a specific group was discriminated against by the government or a government official. Therefore, the example of making women volunteer for jury duty does not qualify under the equal protection clause because, in this instance, women are not necessarily being discriminated against. However, according to Jonakait a practice like this could lead to a "systemic" condition of a defendant not having a fair cross section of the community in the jury pool. The fair cross section ruling is an integral part of modernizing the jury system. By placing the responsibility on the government to 25

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provide jury pools that reflect the community, women and African Americans must (theoretically) be present in jury pools in "numbers that correlate" to the community. In the early days of jury trials, before the fair cross section requirement, trial judges would ask the sheriff to round up the necessary amount of people from which to select a jury. The decision of who the sheriff would bring in remained entirely up to him. This led to potential bias and unfairness based on the sheriffs motives. The cross section requirement ensures at least the possibility that a random selection of a cross section of the community will make up the jury pool. At one time, "key-men" lists could be comprised by "political and civil leaders such as the head of a service organization, the chamber of commerce, or other community bodies" (Jonakait, 2003, p. 121). These jury pools ended up reflecting the men who chose them; that is well educated, affluent, and white. In this case all white jury pools emerged virtually eliminating African Americans from the jury pool. The "key-men" method of jury pool selection prevailed in approximately thirty percent of the United States until the ruling for the fair cross section requirement. The fair cross section requirement led to the abandonment of blatantly bias practices in keeping African Americans out of the jury pool, but neglected to address subtle methods of bias in jury selection. In Florida the jury commissioners collated jury pool lists using the requirement that 26

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'only such persons as the selecting officers know, or have reason to believe, are law-abiding citizens of approved integrity, good character, sound judgment and intelligence, and who are not physically or mentally infirm, shall be selected for jury duty.' This discretion was widely used for keeping blacks off juries. Charged with finding black men of 'integrity, good character, sound judgment and intelligence' in a segregated state in which whites assumed that none of these qualities were characteristics of blacks, jury commissioners throughout the South regularly placed in jury pools only the names of a handful of black ministers, funeral directors, and perhaps a shopkeeper or two, and assumed that the entire African American community was therefore represented on the jury (Jonakait, 2003, p. 122). The fair cross section requirement does not eliminate all restrictions concerning jury pool selection. As long as the restrictions do not lead to under representation of a certain aspect of the community and the government can ... show that the exclusionary practices are no broader than necessary to serve a valid governmental interest" (Jonakait, 2003, p. 122), the restrictions may be applied. The cross section requirement contributed to the elimination of "blue ribbon juries" selected for trials with particular intricacies which demanded a "more educated" jury pool. New York used "blue ribbon juries" until 1965 when the practice was repealed. Some proposals for specialized juries still occur. For example, the contention that a jury should be racially appropriate for specific trials, thus ensuring the concept of a "jury of ones peers" has been proposed, but deemed to go against the fair cross section requirement. One approach to achieving a fair "blue ribbon jury" suggests keeping the fair cross section jury pool and choosing the "elite" from that pool. 27

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Although no mandate has emerged to establish this, Jonakait (2003) explains that "it can be implemented with the parties' consent" (p. 124 ). Pros and cons exist in the blue ribbon approach. Studies reveal that the more educated a juror, the longer the deliberations. However, the lack of diversity may hurt the process as "Varied life experiences, perspectives, and values in the group may result in a more wide-ranging discussion and increased understanding of the behaviors involved" (Jonakait 2003, p. 125). Ultimately, the fair cross section requirement is difficult to achieve. Usually the jury pool lists are obtained from voter registration lists (ROV) which do not represent all individuals who may be valuable to jury trial process. Non registered voters are more likely to be a member of a minority group, leaving voter registration lists lacking in a fair, proportional representation of minorities eligible for jury service. Alternatives to limiting the jury pool to voter registration lists include using tax files, licensed drivers lists, public assistance records, and state unemployment recipients (Jonakait, 2003, p. 125). The fair cross section requirement has helped to make the jury pool more representative of the community by including more minorities and women and by increasing the variety of potential jurors' educations, social economic status, and occupations. However, the "democratization" of jury pools remains controversial. Race and gender issues contribute to the distrust of juries This distrust emerges as a growing trend in the United States. 28

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Four years after Taylor, in the case of Duren v. Missouri (1979) ... the court held that a violation of the fair cross section requirement was established when a defendant showed: that the representation on jury pools of a distinctive group in the community was not fair and reasonable in relation to the numbers in the community; that 'this under representation was due to systematic exclusion of the group in the jury process'; and that the state had not shown 'a significant state interest' to justify the exclusion (Jonakait, 2003, p. 118). Other jury reforms emerged in the twentieth century including the option of bench trials. "By 1960, every state, as well as the federal government, permitted defendants to waive trial by jury and opt for trial by judge only" (Abbott and Batt. 1999, p. 2-12). This policy resulted in a severe reduction in the number of jury trials. Jeffrey Abramson explains that between plea bargaining and bench trials "less than five percent of state criminal cases were resolved by jury trials" (Abramson, 1994, p. 253) by 1988. In one major city, juries tried only two percent of felony cases due to a sentencing policy that gave defendants, after conviction by a jury, on the average more than twice the sentence they had been offered (and refused) for a guilty plea. By the late twentieth century, many considered modem juries as "incompetent prejudiced, and at war with the law" (Abbott and Batt, 1999, p. 2-12). The perceived practice of jury nullification contributed to an overall distrust of the jury system even though the facts from recent studies undercut the validity of these impressions (Abbott and Batt, 1999, p. 2-12). Jury nullification is the power a jury 29

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has to "disregard the law and acquit a guilty defendant" (Jonakait, 2003, p. 245). Abbott and Batt ( 1999) suggest that nullification occurs as a result of the jury seeking justice rather than a "literal and harsh application of the law" (p. 2-12). Jonakait (2003) explains that jury nullification "is often following public opinion, not creating it" (p. 255). According to Andrew Leipol "no examples in which frequent nullifications created dissatisfaction with the law;" exist and that "at best, nullification has reflected discontent that was already in place" (p. 126). Voir Dire Voir dire exists as an invaluable tool in the jury selection process. The judge and attorneys use voir dire to gain information about prospective jurors. This information aids in eliminating prospective jurors with a bias in the case. The attorneys usually have a time limit established by the judge for their questioning. The attorneys ask questions in an attempt to gain further insight concerning prospective jurors. The judge may dismiss jurors "for cause" and the attorneys dismiss an established number of jurors for any reason other than race or gender. In Denver District Court, civil and misdemeanor trials typically allow for each side to eliminate four potential jurors during the peremptory challenge phase and criminal trials allow for each side to eliminate six potential jurors. 30

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During the peremptory challenge process, "The prospective jurors are questioned to find out whether they can be impartial in the particular case being tried and to obtain additional information that attorneys may use in exercising peremptory challenges" (Jonakait, 2003, pp. 128-129) In the United States, every jury trial involves some voir dire "It is constitutionally required in criminal cases in order to meet the Sixth Amendment requirement that jurors be 'impartial"' (Jonakait, 2003, p. 129). However, in Great Britain both voir dire and peremptory challenges have been abolished. Some experts believe that the abolition of these processes may lead to a more democratic jury that more accurately reflects the "undiluted product of random selection, but whether or not its members are biased is virtually impossible to determine" (Gobert, 1997, pp. 144-145). The implementation of voir dire varies from courtroom to courtroom. For example, potential jurors may be asked questions in groups or individually. The Constitution leaves the specific procedures for voir dire up to the trial judge to determine. No specific grounds for possible bias or what specific questions should be asked exist. The sole constitutional requirement sates that "potential jurors be asked generally about their ability to be impartial" (Jonakait, 2003, p.129). However, "Specific questions about racial prejudice must then be asked, but even so, no more than perfunctory questions about race addressed to the entire panel are constitutionally necessary" and then only when race "permeates" the case "and the 31

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mere fact that the crime is an interracial one does not give rise to the constitutional duty to voir dire about racial bias" (Janakait, 2003, p. 129). The leeway given in the voir dire process allows for vast variation from jurisdiction to jurisdiction with some courts using the voir dire process excessively and some barely at all. Voir dire varies exceedingly depending on who does the questioning. In about one-third of the states and the federal courts, the trial judge has the discretion to conduct the questioning or permit the attorney to do so; in another third, the attorney has control over the process; and in the remainder, the court examines the prospective jurors with the attorneys supplementing the questioning (Jonakait, 2003, p. 130). In this research, both the judges and the attorneys participated in the voir dire process. One study claims that the voir dire process takes up to 40% of the total trial time when attorneys conduct the questioning-a major consideration taking into account that long jury selection tends to draw a significant amount of criticism from the public. The lengthy time used by attorneys has several benefits including the indoctrination, socialization, and education of prospective jurors (Jonakait, 2003, p. 130). Voir dire emerges as a vital component to jury selection. First of all, the judge has wide discretion concerning the questioning process; second, jurors are less likely to expose bias when they are questioned as a group; third, potential jurors may 32

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use the voir dire process to abuse the system (for instance, if they do not want to serve, they may express existing or non-existing biases in the hope of being eliminated). Attempting to get excused from jury duty remains the most common reason for dishonest answers by potential jurors during voir dire; although, failure to report a bias emerge as a greate'r problem than claims of potential bias. People find it difficult to admit bias in public, preferring to appear fair minded. In addition, judges elicit fewer reports of bias than do attorneys. According to most studies, lawyers do a better job of eliminating biased jurors: The most frequently discerned reasons: One, lawyers, because of their superior knowledge of the case, ask better questions, on the whole, than do judges; two, jurors tend to be in awe of judges or fear them and may try to impress them with 'fair-mindedness; that sharp questioning from an attorney would disprove (Jonakait, 2003, p. 132). How questions are asked during voir dire may be as important as what questions are asked. If a juror initially says they have some bias, a judge may direct an "are you telling me you can't be unbiased?" question towards them at which point a juror may become intimidated and change her mind. Since the various forms and practices of voir dire vary dramatically from trial to trial, little consistency exists by which to judge whether a juror will confess to a bias or not. A juror may be excused due to a hardship. These include: taking care of an invalid, a long planned trip, being a student during finals, work conflicts, or various 33

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other excuses. Judges have discretion based on information acquired during voir dire. Naturally, the estimated length of a trial has a significant impact on whether jurors will attempt excusal, potentially leading to a less representative jury. This may result in juries that consist of unemployed, retired, female, less educated, and unmarried individuals (Jonakait, 2003, p. 134). Request for hardships are usually granted as neither the judge nor the attorneys want a juror seated who either does not want to be there or resents being there; at times as many as half of the potential jurors get excused based on hardship. However, the jury selections in this research reflect a decidedly hard nosed approach by the judges who typically did not excused jurors for hardship. A challenge "for cause" occurs when a juror cannot be impartial. If they are related to the defendant, if they will be called as a witness, if pretrial publicity has influenced them, if they have a strong opinion concerning law enforcement, if they believe the law is wrong, etc., they can be excluded "for cause." Attorneys may challenge "for cause" "Any potential juror who they believe cannot be impartial" (Jonakait, 2003, p. 135). When this occurs, the trial judge must determine whether the potential juror should be excused. United States law considers the trial judge, who has seen and heard the voir dire, to be in the best position to determine whether a challenge "for cause" should be granted and it gives the trial judge broad discretion in 34

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deciding whether in these and myriad similar circumstances potential jurors should be excused (Jonakait, 2003, p. 135). The Supreme Court found that a juror may be dismissed if he cannot return a death sentence in a capital case, but not because they "expressed a scruple" against the death penalty (Jonakait, 2003, p 136) In order to be removed "for cause" the potential juror must convey that her views concerning the death penalty "would prevent or substantially impair the performance of his duties as juror in accordance with his instructions and his oath" (Jonakait, 2003, p. 136). Therefore, if a juror cannot "impartially consider the death sentence" he can be removed "for cause." If the same jury determines both guilt and sentencing, then this juror is removed from both. This poses some questions as to the fairness of excluding jurors from the trial phase based on their beliefs concerning the death penalty, considering studies have revealed that pro death penalty juries are more likely to convict. In the case of Lockhart v. McCree (1986), McCree's attorneys relied on these studies "contending that a death-qualified jury deprived him of his constitutional right to an impartial jury for the determination of guilt" (Jonakait, 2003, p. 136). Ultimately, the Supreme Court rejected this argument stating that seating a jury with "shared attitudes" was not the same as representing a fair cross section requirement. The Court maintained that "even if it were shown that death-qualified juries are somewhat more 'conviction prone"' the accuser's right to an impartial jury to determine guilt is not violated 35

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(Jonakait, 2003, p. 173). A solution to this dilemma might be two separate juries for trial and sentencing. This scenario remains unlikely due to the investment in time and money involved in presenting a case twice. Peremptory Challenges The peremptory challenge acts as the final step in the jury selection phase of a jury trial. Peremptory challenges begin after the rulings on challenges "for cause." Any potential juror may be excused during the peremptory challenge phase for any reason except solely on the basis of race or gender. The attorneys need not provide an explanation for excusing a potential juror. Challenges "for cause" are unlimited in number since their purpose is to insure an impartial jury (that is every biased person should, theoretically be excused "for cause"); peremptory challenges are always limited in number. The number allowed on the side of the defense and prosecution varies from jurisdiction to jurisdiction and by type of case. In federal criminal trials, each side has twenty challenges for capital cases and three for misdemeanor cases. For other felonies, the prosecution is allowed six and the defense is allowed ten (Jonakait 2003, p. 139). However in New York, each side is allowed the same amount, but they vary from three to twenty depending on the category of the case (Jonakait, 2003, p. 139). In the present research, six challenges are allowed on each 36

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side in felony trials and five on each side are allowed in civil and misdemeanor jury trials. Peremptory challenges apply to all civil and criminal jury trials. The peremptory challenge process usually begins by picking twelve jurors from the pool that will then go through voir dire questioning after which one or more individuals may be excused "for cause." Following this, the prosecutor can challenge any of the remaining potential jurors and dismiss them if she chooses. The defense can then challenge and dismiss however many (up to the limit specified) she so chooses and those who have been dismissed are replaced from the remaining assembled potential jurors. This process continues until twelve jurors and alternates are sworn in. The defense usually goes first in this process, on the even rounds. Peremptory challenges are gambles because the attorneys have no guarantee of what kind of juror will replace those let go. An alternate system of selection during the peremptory challenge phase is called "struck jury" and requires that jurors be questioned and challenges "for cause" exercised until the jury consists of twelve members plus the allowed number of peremptory challenges. If each side is allowed ten challenges, then challenges "for cause" continue until thirty two jurors remain (twelve plus ten). After this number is reached, the process of excusing through peremptory challenges begins. This system allows for the attorneys to exclude the jurors most objectionable to them. 37

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The trials observed in this research resemble the "struck jury" system. Twenty five potential jurors in felony trials and seventeen in civil and misdemeanor trials are seated through random selection. If a juror is excluded "for cause" they are replaced through random selection from jurors in the gallery. During the peremptory challenge phase, the prosecutor and defense attorneys alternate exclusions until a panel of 13 (12 plus one alternate) in felony cases and 7 (6 plus one alternate) in civil and misdemeanor cases remain. Given the process of peremptory challenges, attorneys can only exclude prospective jurors; therefore the process of seating a jury is not accurately represented by the phrase, jury selection. Peremptory challenges involve the broad use of stereotyping. Stereotypes may be based on occupation, gender, race, ethnicity, age, dress, body, hair, books read, favorite television shows, music, etc. In using stereotyping to implement challenges, it becomes easy to work against the basic concept of a seated jury as representative of the community. The county involved in the case of Swain v. Alabama (1965) was predominantly African American, yet prosecutors disproportionately excused black jurors. In fact, research revealed that no African Americans had served on a jury in that county for the past fifteen years. This pattern has been evidenced throughout the United States. Part of the stereotype assumed by prosecutors is that African Americans are most often pro defense. This holds true 38

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even in cases where questioning reveal values and characteristics consistent with prosecution leanings. One of the most important rulings concerning jury selection emerged in the 1986 Supreme Court decision in Batson v. Kentucky. This decision states that although excluding potential jurors based on race "did not violate the fair cross section rights of the litigants, peremptory challenges exercised on racial grounds violated the equal protection rights of the jurors" (Jonakait, 2003, p. 143). This is known as the Equal Protection Clause and the principle applies to all jury trials in the United States. In 1995 it was expanded to include gender (Batson v. Kentucky 1986; J.E.B. v. Alabama 1994; Georgia v. McCollum1992). Although this ruling seems easy to understand, it remains difficult to enforce. If a party chooses to dispute a peremptory challenge based on the equal protection clause, they must be able to prove that the sole reason for a prospective juror's exclusion was because they were either African American or Latino; or because of gender. Although Latinos were added to the list under the equal protection clause, no other group falls under this ruling including Muslims, Middle Easterners, etc. If a party is accused of apparent discrimination, they must come forward and prove that the challenge was nondiscriminatory. As long as the attorney's explanation seems plausible and based on race-neutral judgment, the challenge and exclusion stands. Even if the explanations still mean that no African Americans, 39

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Latinos, or women will ultimately end up on the seated jury based on the explanation given. Basically, any excuse except one based on race or gender will be acceptable; for instance, messy hair, type of work, religion, etc. "The court does not have to accept a nondiscriminatory explanation, but must determine whether the proffered reasons were a pretext for forbidden discrimination" (Jonakait, 2003, p. 145). The Supreme Court does not allow for "implausible" or "fantastic" explanations. In the case of Purkett v. Elem ( 1995) the ruling stated that discriminatory explanation does not have to be "a reason that makes sense, but a reason that does not deny equal protection" (Purkett v. Elem 1995). According to Jonakait (1999), "Only the most overtly discriminatory or impolitic lawyer can be caught in Batson's toothless bite and even then, the wound will be only superficial" (p. 146). Furthermore, no guidelines exist for judges to use in determining whether challenges are based on pretext, but as enumerated by Jonakait (1999), some methods used by lower courts include: 1) stated reasons are unrelated to the case 2) the challenged juror was not questioned thoroughly 3) questions to support the explanation were asked only of the challenged juror, but not of any other jurors 4) the characteristics of the challenged juror that support the explanation were shared by others who were not challenged (p. 146). Although much of the peremptory challenge process emerges from answers to questions during voir dire, other methods of understanding potential jurors and their 40

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beliefs, biases, backgrounds, etc. exist. Independent investigations of the jury pool may be conducted as long as no personal contact is made and as long as any investigation does not become "vexatious or harassing" to potential jurors. Investigations are expensive and time consuming, so usually are limited to high profile and "wealthy" cases. Voir dire remains the best opportunity to gain information regarding perspective jurors and the longer, more detailed the voir dire, the more effective the process ultimately becomes. However, a long voir dire process means a lengthier and more expensive trial; therefore, many judges attempt to limit the time spent in the voir dire process. In all cases observed for this research, the judge imposed a time limit on the attorneys for the voir dire process. It remains difficult to determine bias in the voir dire process because often people do not want to admit that they posses any biases. In addition, the process may be interpreted as invasive if attorneys inquire into personal information (age, habits, children, criminal history, etc.) resulting in the attorney alienating potential jurors during voir dire. Better and more honest responses from potential jurors occur when they are questioned individually during voir dire, rather than collectively. Open ended questions that allow a juror to expose more of their beliefs, thoughts, and personality have emerged as the most effective in questioning potential jurors; although time 41

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constraints remain a consideration in this style of questioning. A combination of individual and group questioning occurred in the research for this paper. Questionnaires sent to potential jurors to fill out and return are an efficient method in determining which jurors an attorney may want to keep or exclude Questionnaires also serve to shorten the voir dire process. Attorneys have an opportunity to review questionnaires ahead of time making them better prepared. Questionnaires reveal more information about each individual juror. Many questionnaires include a portion for written answers, which elicit more honest responses from potential jurors. Respondents are not "put on the spot" in front of other jurors, the judge, the attorneys, or the defendant. Many questionnaires provide an opportunity for attorneys to "probe more deeply into the individual qualities of potential jurors (Jonakait, 2003, p. 153). Even though personal and probing questions may result in the invasion of jurors' privacy, judges and attorneys will most likely believe this invasion beneficial and perhaps necessary. In the O.J. Simpson trial the questionnaire used to screen potential jurors was 79 pages, 28 parts, and 294 questions (according to a potential juror who was later dismissed) This excused juror stated "While we were filling out the questionnaire, one comment came up over and over again: 'This is so personal.' You could hear it muttered all about the room." (Kennedy, Kennedy and Abrahamson,1995, pp. 28-33). In another trial Dianna Brandborg refused to answer questions that she 42

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described as "the kind of information that she would tell no one" and refused to give the answers (Brandborg v. Lucas 1995). Held in contempt, Brandborg spent three days in jail and paid a two hundred dollar fine. A federal court ruled that "if a juror raises privacy concerns, the trial court should seek the sensitive answers in a closed proceeding and seal the resulting record" the court further found that "if the trial court considers the questions appropriate, the juror's privacy rights have to give way and the juror has to answer (Jonakait, 2003, p. 154). The use of questionnaires may lead to more than an unbiased jury. It may culminate in an essentially "handpicked" jury that will favor the desired verdict. According to Jonakait (2003), the jury becomes the case winner, not the evidence, resulting in less confidence in the jury process and eroding "the acceptability and legitimacy of verdicts" (p. 155). I began observations of three trials in this research that ended up using jury questionnaires. No questionnaires were used in the trials observed for this research. Jury Reform Several issues commonly arise in jury research regarding jury reform. The issue of fairness in jury minority representation has consumed much of jury research, law, and reform. The public's general attitude towards jury duty and the jury system as a whole has also taken an important role in jury reform. The perception of a lack of faith in the system, attempts to legitimize the system, and the exorbitant amount of 43

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time involved in jury service spawn proposals for jury reform. I include this section to demonstrate the continued efforts towards improving the jury selection process; an effort that supports the contention that a fair and representative jury system does not yet exist. Jury Size One proposed reform suggests changing all juries from a twelve person representation to a six person representation According to Margo Hunter ( 1996), a jury must be large enough to "promote deliberation free from outside attempts of intimidation and provide a fair possibility for obtaining a representative cross section of the community." Hunter posits that advantages to the six person jury include reduction in costs, less time spent on the voir dire process, and less time spent in deliberations. Finally, Hunter suggests that more cases could be heard due to a more efficient use of time (Hunter, 1996, p. 2). The disadvantages to the six person jury include: less than a twelve person jury is less representative, the quality of deliberations may be endangered, and jury awards may be more erratic (Hunter, 1996. p. 2). Research reveals that six person juries are faster and cheaper, thereby allowing jurors to invest less time in the process resulting in fewer attempts to get out of jury duty. Studies that challenge the six person jury find that the voir dire process 44

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remains consistent in length regardless of whether the jury has six or twelve members. Further, the discipline of statistics supports the concept that the smaller the sample size, the less representative it will be (Hunter, 1996, p. 3). "In a community with a 10% minority population, one or more minorities would be represented on 72% of the twelve person juries; however, on a six-person jury, only 47% of the juries could be expected to contain one or more minorities" (Hunter, 1996, p. 3). Further studies reveal that women may be less represented on six person juries (Zeisel, 1972, pp. 367-368). In addition, the collective memory of a twelve-person jury emerges as superior to that of a six-person jury. Twelve-person juries communicate more effectively and for longer periods of time. A dominate personality on a jury has more luck in persuading a six-person jury than a twelve-person jury (Hunter, 1996, p. 4). Some studies determine that defendants are at a disadvantage with a six-person jury due to a higher chance of conviction than with a twelve-person jury (p. 4). The Committee on Rules of Practice and Procedure of the Judicial Conference determined on December 13, 1994 that: -twelve person juries are more reliable and deliberative twelve person juries are more representative of the concerns of the minority 45

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the dollar savings of the smaller juries were ultimately insignificant in the overall judiciary budget there is not enough reduction in time to make a significant difference the cons outweighed the pros in reducing jury size to six (Hunter, 1996, p. 4 ). Non Unanimous Juries Switching to a non-unanimous jury system exists as another popular jury reform proposal. The unanimous jury remains a staple in the United States' jury system. Common thought supports the premise that a unanimous verdict "reduces the probability of convicting an innocent defendant while increasing the probability of acquitting a guilty defendant" (Feddersen and Pesendorfer, 1996, p. 1). However, the model developed by Feddersen and Pesendorfer ( 1996) "demonstrates how strategic voting by jurors undermines this basic institution" (p.1). They posit that Unanimity rule may lead to high probabilities of both kinds of errors and that the probability of convicting an innocent may actually increase with the size of the jury. Finally, we demonstrate that a wide variety of voting rules including simple majority rule lead to much lower probabilities of both kinds of errors (p. 1). This is an important consideration because the possibility exists for jury selection to "stock" the jury with a pre-calculated combination of individuals to allow for strategic voting. 46

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Feddersen and Pesendorfer ( 1996) suggest that jurors bring both private and public information with them to the jury box: "the formalization that jurors have private information captures the fact that jurors interpret evidence differently by virtue of different life experiences and competencies" (p. 2). Jury literature supports the argument that a "group will make a better decision than an individual" (p.2). Feddersen and Pesendorfer ( 1996) distinguish between "sincere voting" by the jury and "voting strategically": -sincere voting: assumes that jurors will vote to convict or acquit without taking into account how the other jurors are voting -strategic voting: "the incentive to vote strategically arises because a juror's vote only matters when a vote is pivotal and because the information possessed by other jurors is relevant for a juror's decision -key to Feddersen and Pesendorfer' s findings is the assumption that each juror has "private information" made up of their own "life experiences and competencies" -Feddersen and Pesendorfer's findings support that a better jury model would be larger juries and a "super-majority rule" that would help reduce the "probability of convicting the innocent" (p. 16). Data collection for this research includes educational background (required information in every trial observed) and may be used in future research to help determine the depth of "private" information a potential juror possesses. The debate over unanimous juries will undoubtedly continue. Although most criminal trials still require unanimity, a few places allow a supermajority. Still, 47

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"Empirical research on jury unanimity and jury size shows that the functioning of the jury would be seriously undermined ... by these reforms" (Abbott and Batt, 1999, p. 322). The need to listen to and understand co-jurors diminishes with the non unanimous jury. This remains one of the major fears concerning the elimination of the long standing unanimous jury tradition. According to Donald Black "The difficulties in obtaining a unanimous verdict place greater burdens on both majority and minority groups to work out their differences, possibly preventing wrongful convictions" (Black, 1976, pp. 30, 32). This speaks in powerful support of the unanimous jury. Minority Representation In response to concerns over the lack of minority representation on juries, three affirmative action models have been explored. These alternatives have been investigated as a result of concern over the lack of protections afforded members of racial minorities in criminal trials. According to Hiroshi Fukurai ( 1997) "The current selection procedures provide almost no protection to racial minorities" (p. 477). In addition, Fukurai ( 1997) blames the "discriminatory use of peremptory challenges" for undermining minority representation on juries (p. 477). (This research will address Fukurai's concerns in the data analysis section). Three types of mandatory racial quotas: the de medietate linguae, the Hennepin model, and the social science 48

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model may help to "engineer racially integrated juries in criminal trials" (Fukurai, 1997, p. 477). First used in English law, The de medietate linguae model Recognized the danger that inhered in allowing members of a minority community to be tried entirely by English majority jurors and devised the jury system called the jury de medietate linguaea in both civil and criminal cases involving minority members such as Jews, Italians, Germans, and other foreigners. This practice of mixed juries of one half of English natives and one-half of aliens endured throughout almost 700 years until it was finally repealed in 1870 (Ramirez, 1994, p. 790). Literally translated the phrase means "jury of the half tongue." Adopted and used in the early colonies, this type of mixed jury emerged to "ensure substantive fairness and enhance the legitimacy of jury verdicts" (Fukurai, 1997, p. 481). Ramirez (1994) ; \oints out that this type of "mixed" jury became vital to maintaining a sense of fairness between the colonist's and the natives. (p. 790) The practice of the jury de medietate linguae "ceased and the mandatory mixed jury disappeared from application under American law" (Fukurai, 1997, p. 481) following a decision by the Supreme Court regarding the case of United States v. Wood (1936) whereby the court claimed "in dictum and without analyses that 'the ancient rule under which an alien might have a trial by jury de medietate linguae .. .. --in order to insure impartiality-no longer obtains"' (Fukurai, 1997, p. 481 ). Fukurai ( 1997) maintains that "The fixed 49

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quota is viewed as an essential feature of jury composition to ensure both the appearance and substance of fairness and justice in jury verdict" (p. 482). Introduced in Hennepin County Minnesota, the Hennepin model of jury representation requires that "representative-ness in the jury box reflect respective proportions of both majority and minority groups in the general population" (Fukurai, 1997, p. 482). The Hennepin model requires proportional representation on the jury itself rather than just the jury pool. Presently used for the Grand Jury only, this model might easily be implemented in criminal jury trials. The social science model was designed to ... assure three minority jurors in order to preserve, not only the appearance of fairness, but the legitimate viability of deliberations and verdicts in jury trials as well" (Fukurai, 1997, p. 483). According to S. L. Johnson, "Jury research shows that a minimum of three members of a racial minority are necessary to offset the group pressures of the dominant majority jurors during jury deliberation" (Johnson, 1985, p. 1698); thereby supporting the validity of a mandatory minority representative model in jury selection. Donald Black notes that "based on social scientific findings, the jury requires at least ten racially similar jurors to make acquittal the predicted jury verdict" (Black, 1989, pp. 30, 32); therefore a minimum of three minority representatives would be necessary. The social science model lends itself to empowering the minority to fight against the majority. Pressure from the majority group can only be countered with a 50

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minimum requirement of the minority that reflects the race of the defendant. Further research supports this claim: ... psychological studies show that without a minimum of three minority jurors, they may not withstand the group pressure, suggesting that one or two dissenting jurors eventually accede to the majority's opinion" (Saks, 1977; Hastie, Penrod, and Pennington, 1983; Kerr and MacCoun, 1985; Hastie, 1993; Fukurai, 1997). Hiroshi Fukurai' s ( 1997) survey on the three models of mandatory minority representation reflect support for the social science models by most respondants with slightly less support for the Hennepin model and significantly less for the jury de medietate linguae (p. 486). These statistics support the basic premise that affirmative action juries may help restore the public's faith and sense of fairness in the jury system. The overall questions concerning affirmative action jury selection include duplication of minority representation of the communities in which trials are conducted; the "social costs of unrepresentative juries" (Fukurai, 1997, p. 496); whether racial quotas will alienate potential jurors; and whether a "ceiling effect for minority applicants by setting a minimum" (Fukurai, 1997, p. 496) might occur. Fukurai ( 1997) explains that "Whites and those from upper social classes are most likely to feel that mandated racial quotas are discriminatory" (p. 497). 51

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Minorities and Jury Selection One of the major criticisms of the current jury selection process is the real and/or perceived "lack of fairness for women, Blacks, Latinos, and the poor" (Fukurai, 1997 p 484). As explained in the U.S. 901h Congress House Report, 1968: Section 1961, these groups have the "right to participate in court as jurors, and it must be representative within specified geographic districts wherein a particular court convenes." Further, "Careful research indicates that discrimination in jury selection procedures occurs by gender, age, race, and socioeconomic status" (Fukurai, Butler, and Krooth, 1991, p. 197). Although focus is usually placed on the representation of African Americans; gender, age, and socioeconomic status can all exist as under represented aggregates on seated juries. To date, a vast lack of research has occurred to explain why African Americans are so widely under represented on juries. Fukurai Butler, and Krooth (1991) suggest four possible causes for the lack of African American representation on juries: racial discrimination in jury selection procedures; socioeconomic barriers preventing full community participation by African Americans and other racial minorities; judicial discrimination that allows racially demarcated jury representation; and institutional racism and bureaucratic discrimination in perpetuating judicial inequality (p. 197). The largest disproportionate representation occurs where district clerks and jury commissioners 52

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"have substantial discretion regarding both the sources and methods of selection" (Fukurai, Butler, and Krooth, 1991, p. 199). The far-reaching implications of having the jury system under represent African Americans and other minority populations include the fact that under representation results in the" ... legitimation of Anglo dominated judicial system" (Fukarai, Butler, and Krooth, 1991, p. 199) further perpetuating the consequence of the dominate population ruling the judicial system. Some explanations addressing the lack of minorities represented in the jury pool include: the low response rates to jury questionnaires; the transient, seasonal work force of some minorities; lower levels of property ownership; and more frequent relocations by some minority groups. All of these factors contribute to difficulties in maintaining minority jury status on jury pool lists. The same considerations can be made for the low representation of youths, laborers, and low income/educated populations. Creative manipulation of jury selection and procedures helps to contribute to under representation of minorities on juries. Tactics such as seating "blue ribbon juries," reducing the size of juries (i.e. the six man jury), the use of non unanimous juries, and the process of gerrymandering judicial districts add to the dilemma of under representation of minorities (Fukurai, Butler, and Krooth, 1991, p. 201-202). According to Fukurai, Butler, and Krooth ( 1991 ), a "clear pattern of racial discrimination is found in death penalty cases" (p 204). The following statistics from 53

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Florida, support this view: the chances of an African American receiving the death penalty when the victim was White is 1 in 5; a White person killing a White person has a 1 in 20 chance of receiving the death penalty; an African American person who killed an African American has a 1 in 167 chance of receiving the death penalty; and a White person who killed an African American person has a probability of zero for receiving the death penalty (Bowers and Pierce, 1980, pp 563-635). The minority representation on juries can have a dramatic effect on rape trials. to D. Ugwuegbu (1979), White jurors find African American men accused of rape more culpable when the victim is White than any other racial combination. In addition, African Americans were "more likely to judge that a White defendant was culpable when the victim was Black" (p. 133-136 ). H. Field (1979) explains that "In a rape simulation study Black defendants were treated more harshly than White defendants (p. 261-284). Jury Consulting Jury consulting has become big business in the United States. Many high profile trials use experts who claim that verdicts can be predicted based on selecting a jury with specific characteristics. Often based on stereotyping characteristics (i.e. African Americans more often favor defendants) this technique of jury selection has 54

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yet to be validated. Shari Diamond ( 1990) suggests that the positive results of scientific jury selection (SJS) are "modest at best" (p. 178). Diamond explains that jury consulting and SJS rely on the assumption that, since juries often do not have a unanimous first vote during deliberations; evidence alone is not at play in the jury room: "all jurors are exposed to the same evidence;" therefore, "The differences in juror reaction must stem from pre-existing differences among the jurors that affect juror responses to the evidence" (Diamond, 1990, p. 178). Diamond continues: "what litigator faced with the uncertainties of trial would not appreciate a little assistance" (Diamond, 1990, p. 178)? Consultants use several methods in jury selection. Among them are: telephone surveys, testing of respondents at research facilities, and questionnaires. Telephone surveys generally are divided into three stages: 1) questions regarding general information such as "age, sex, occupation, prior jury service, prior experience as an accident victim, etc." (Diamond, 1990, p. 179) 2) questions regarding beliefs and attitudes 3) after a brief description of the case, questions regarding which "side" the potential juror might favor (Diamond, 1990, p. 179). The use of research facilities lowers the number of respondents reached, while telephone interviewing is more cost effective and reaches more potential jurors. Questionnaires can elicit a large dirge of information, but can result in offending or alienating potential jurors due to the length and the attempt to acquire "personal" or "sensitive" information. 55

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Cases exist in which jury consultants take credit for the juries' verdict; however, ... no one has yet produced convincing evidence that advice on jury selection made the difference" (Diamond, 1990, p. 179). Studies reveal that the most profound influence on jury verdicts is still--the evidence. Diamond ( 1990) concludes that "Scientific magic in the form of SJS may reduce dysfunctional stress or simply appease a client who wants to be assured that every available tool has been used to prepare for trial" and that "The difficulty is that we currently have no reliable way to identify which cases will be amenable to SJS" (p. 183). Mitzi S. White (1995) attempts to ... review the effectiveness of traditional and social science methods of jury selection" (p. 414). White explains that most studies have found" ... only weak relationships between jurors' characteristics and their verdict preferences. These findings suggest that the underlying assumption that jurors' characteristics determine their verdict preferences may lack validity" (p. 415). In White's study, prosecutors and defense attorneys were evaluated and questioned concerning their methods of jury selection. Her research revealed that Both successful prosecutors and criminal defense lawyers base their selection decisions primarily on juror receptivity and their 'feelings' about the juror. They choose jurors who transmit behaviors that indicate that they like the attorneys, feel comfortable with them, and are willing to listen to their version of the case (White, 1990, p. 442). 56

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Until further studies are conducted, the evidence remains limited concerning the validity and effectiveness of jury consultants and scientific jury selection. 57

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CHAPTER3 METHODS Sampling The sample in this research consists of jury selection observations made in the Denver Colorado District Court. The unit of analysis is the individual, since the data culminates in a comparison between characteristics of "initial" jurors and "seated" jurors. Thirteen jury selections make up the sample for this research with characteristics of 385 "initial jurors and 163 "seated" jurors. Since no public lists for jury selections exist for any given day, I wait outside jury assembly room number 431 and follow the first group of potential jurors called for a criminal case. I focus on criminal trials only as issues concerning race inevitably vary between civil and criminal trials. Potential jurors assemble at the Denver District Court accessed through voter registration (ROV) and DMV records from which they have been randomly selected. Each prospective juror is contacted by mail at which time they are assigned a number. They are given a day and time to assemble at the courthouse in the jury room. When a trial is ready to begin jury selection, potential jurors are randomly called by number to go to a courtroom. At this point, I follow the first group called for a criminal trial (on each of the days I am present) to the designated courtroom. This group of potential jurors ranges in size anywhere from 20 58

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to close to 100, depending on the judge's specified guidelines for each case. I begin my data collection on the first group of randomly selected jurors in the courtroom who take the jury box. In misdemeanor cases this number is usually 17; and in felony cases the number is usually 25 (this can vary depending on the severity of the charges or with high-profile cases). I refer to this group as the "initial" panel. I conduct my observations until the final panel of 7 for misdemeanor cases and 13 for felony cases has been seated. I refer to this group as the "seated" panel. In summary, there are three levels of random selection for potential jurors up until this point: 1) potential jurors are randomly selected and assigned numbers from ROV and DMV records and are required to assemble in the jury room of the courthouse on a specific day 2) potential jurors are randomly selected and called by their number and attached to a trial 3) names are randomly called for potential jurors to take the jury box. I follow the first group of potential jurors for each given day of observation, thus adding a fourth level of random selection. Selecting the first jury for each day of observation eliminates the chance that I select certain groups based on personal bias. Since court clerks arrive at the assembly room to bring potential jurors to the courtroom, this method of selection will remove the chance that I will eventually recognize which clerks are associated with particular judges. Associating clerks with a more "entertaining" judge might influence which trial I decide to 59

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observe. Following the first group each day I am on hand to observe eliminates any such bias on my part. Operationalization Race I determine and document the independent variable "race" (JURRACE) based on a potential juror's self-identification; that is, if they refer to themselves as a particular race. Since self-determination of race is not required, if it is not provided I assess race based on my observation; just as the Judge and attorneys must to do. Race is coded as: l=Native American 2=Asian 3=Hispanic 4=White 5=African American. If any doubt exists concerning the race of a potential juror, the potential juror's race is coded as 9="undeterminable" and is considered a missing value. The same coding for race is applied to the judge, attorneys, court reporter, bailiffs, defendants, and victims when known. Gender I determine and document the independent variable "gender" (JURGEND) based on my observations. Gender is coded as: l=Female or 2=Male. If there is any doubt, the potential juror's gender is coded as 9="undeterminable" and is considered a missing value. This assessment of gender is applied to the judge, attorneys, court reporter, bailiffs, defendants, and victims when known. 60

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Education I detennine and document the independent variable "education" (JUREDU) based on information provided by each potential juror. This is almost always required by the judge in the voir dire process. I code the level of education as: l=less than high school, 2=high school graduate, 3=college, 4=graduate degree. If level of education is not given, I code it as 99="unknown" and it is considered a missing value. Criminal History I detennine and document the independent variable "criminal history" (JURCRHIS) based on answers provided by potential jurors. I code these as: O=no criminal history or not mentioned and l=yes. In order to receive a "yes" coding, the perspective juror must declare a criminal history as a defendant (although not necessarily in criminal court). Interview with the Judge I detennine and document the independent variable "interview with the judge" (JURINTJDJ) as: O=no and l=yes. 61

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Ever been a Witness I determine and document the independent variable "whether a potential juror has participated as a witness in another trial" (JURWITNE) based on their answers during voir dire. I code these as O:::no and l=yes. Exclusions "For Cause" I document the dependent variable "jurors are excused 'for cause"' by the judge based on the judge's assessments or assessments made by the attorneys during voir dire. Included in this documentation are the race, gender, education, criminal history, request for interview with the judge, and previous participation as a witness of the excused jurors (using the coding outlined above). Peremptory Challenges I document the dependent variable "peremptory challenge" based on which potential jurors are excused by which attorneys. Included in this documentation are the race, gender, education, criminal history, interviews with judge, and participation as a witness of the jurors excused in the peremptory challenge phase, and which side (defense or prosecution) excused each juror. 62

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"Seated" Jurors I document the dependent variable "seated juror" based on who ends up on the final panel. Included in this documentation are race, gender, education, criminal history, interviews with judge, and participation as a witness. Verdicts Verdicts are determined for each of the trials based on court records obtained from the case number provided by the judge at the beginning of each trial. Instruments By Juror Data Matrix This grid-style form (Appendix A) documents race, gender, education, criminal history, interview with judge, and previous experience as a witness of the 17 initial jurors randomly called to the jury box in misdemeanor cases and the 25 initial jurors randomly called to the jury box in felony cases. As potential jurors are excluded from this group "for cause" and peremptory challenges, information is documented on the grid and replaced with the information of the subsequent randomly selected potential juror. This process is continued until the final, "seated" jury has been selected. Note: other variables are documented on this instrument to be used in further jury selection research. 63

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B y Trial Data A "by trial form (Appendix B) is used to document the "makeup" of all courtroom participants by trial number. This form includes the courtroom number, the case number, the duration of the jury selection and the verdict of the case. Memos Detailed memos of my experience with each jury selection are written. These memos provide and document information that cannot simply be filled in on forms (Appendix A and B). This process serves to provide a rich, textured view of what I observe in the jury selection process and courtroom that cannot be assessed by demographic information. This process describes anomalies and patterns observed in the jury selections, specifically those concerning minority representation. Datasets I designed an SPSS dataset (byjuror.sav) with variables, coding, and labels for each juror. This dataset includes almost 30 variables and 385 cases (over 10,000 cells). I designed an SPSS dataset (bytrial.sav) with variables, coding, and labels for each trial. This dataset includes information pertaining to jury selection on a trial-by trial basis and includes over 30 variables and 13 cases. Eleven variables are included 64

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in this research. Other variables will be implemented in future research on jury selection. 65

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CHAPTER4 PROCEDURES The research conducted for this study explores the jury selection process using data compiled from observations of 13 criminal jury selections at the Denver Colorado District Court. The research has four phases. Phase I compares "initial" jury panels with "seated" panels by analyzing data collected regarding race, gender, education, criminal history, interviews with the judge, and history as a witness. Phase II examines the "makeup" of the courtroom during jury selection. This phase includes observations regarding the race and gender of the judge, attorneys, court reporter, bailiffs, defendants, and victims (when known). Phase II additionally provides data concerning the charges against the defendant as well as the verdict. Phase III employs observations regarding the behavior, interactions, and nuances of the courtroom experience during jury selection. Documented narratives derived from memos completed after each jury selection provide details beyond the scope of demographic data collected in Phase I and II. Data from Phase I and Phase II are recorded on data sheets (Appendix A and B). I keep track of potential jurors by employing a numbering scheme based on their assigned seats in the jury box (see Appendix C for details of the jury selection process). When a "for cause" or peremptory challenge exclusion of a potential juror 66

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occurs, I designate the replacement juror as "new" (for instance "new 2") In criminal felony trials the "seated" jury panel typically consists of 12 individuals plus one alternate juror. In misdemeanor trials the "seated" panel consists of 6 individuals plus one alternate juror Detailed memos documented immediately following an observed jury selection provide information for Phase III. Based on these memos, I create pertinent narratives of the courtroom scene. Whenever I discuss a specific juror, I refer to them by their juror seat number. Phase III supplements the demographic information in an effort to create a rich and complete picture of the jury selection process. The limitations of this research exist primarily in the sample. I have only observed the Denver Colorado District Court. A cross-state sample might help determine if the trends I observe reflect the American system of jury selection. A large sample size is advantageous in any research; however, the lengthy time investment in the jury selection process combined with the time spent waiting for trials and not "getting" one limits the sample size in the present research to 13 jury selections. Strengths of this research include the randomization of the initial panels already done by Denver and the fact that only one other study of this nature seems to exist. I contacted the Jury Commissioner and she informs me that official data on potential versus seated jurors remain non-existent or unobtainable, thus adding to the 67

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importance and strength of this research. Jury selections are open to the public and I do not include any names or dates in my final research, so ethical concerns are negated. 68

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CHAPTERS DATA ANALYSIS Quantitative Analysis: Phase I A matrix instrument documents data for comparison between the "initial" panel of jurors and the "seated" panel (Appendix A). Appendix A includes 22 variables from which I designed a detailed SPSS dataset (byjuror.sav). For the purpose of this research, I examine ten variables. Additional variables do not emerge as pertinent to the racial aspect of the theoretical framework for this research. However, they may contribute to future research on jury selection. I document the race and gender of the courtroom staff (defendant, judge, attorneys, clerks, court reporter, and bailiffs) on a trial by trial basis (Appendix B). Included in the SPSS dataset (bytrial.sav) designed from this documentation are the race of victims and verdicts (when each is known). Table 1 provides data for the racial makeup between "initial" jury panels and "seated" panels and serves as an overview to the outcome of observed jury selections. 69

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Table 1: Breakdown of "Initial" Panel and "Seated" Panel by Race JURRACE Race of juror SEATEORACE Race of seated juror Crosstabulation 0 Not seated JURRACE t Asian Count 6 Race of % w i thin JURRACE JUror Race of juror 66.7% % SEATEDRACE 2.7% Race of seated juror 2 Hispanic Count 39 % within JURRACE 67 .2% Race of juror %within SEATEORACE 17.6% Race of seated juror 3 White Count 145 % within JURRACE 53.9% Race of juror %within SEATEORACE 65.6% Race of seated juror 4 African american Count 3t %within JURRACE 66.0% Race of juror %within SEATEORACE 14.0% Race of seated juror Total Count 221 % within JURRACE 57 7% Race of juror %within SEATED RACE 100 0 % Race of seated juror Chi-Square Tests Asymp Sig. Value df (2-sided) Pearson Chi-Square 400.333 12 .000 likelihood Ratio 251. 196 12 .000 linear-by-Linear 6.466 1 .011 Association N of Valid Cases 383 a. 11 cells (55.0%) have expected count less than 5 The minimum expected count is .07 SEATEORACE Race ol seated uror 2 Asi an 3 Hispanic 4 Whrte 3 0 0 33.3% .0% .oc;o 100.0% .0% .0 % 0 19 0 .0% 32.8% .0% 0% 100.0% .0% 0 0 124 0 % .0% 46.1% 0 % 0 % 100 0 % 0 0 0 .0% .0% .0% .0% 0% .0% 3 19 124 8 % 5 0% 32.4 % 100 0 % 100 0% 100 0 % 5 African American Total 0 9 .0% 100 0% .0% 2.3% 0 58 .0% 100 0% .0% 15.1% 0 269 .0% 100.0 % 0% 70.2% 16 47 34.0% 100.0% 100.0% 12.3% 16 363 4 2% 100 0 % tOO.O% 100 0% The "byjuror" SPSS dataset analysis demonstrates a significant relationship (p<.05) between variables. The variable "JUROUTCM" contains the four categories of possible outcome for "initial" panel jurors. These include: 1) excused "for cause" by judge 2) peremptory challenge by prosecution 3) peremptory challenge by defense 4) seated on the final jury. Chi-square tests reveal significant relationships between 70

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the independent variables: juror's race (JURRACE), education (JUREDU), criminal history (JURCRHIS), interviews with the judge (JURINTJDJ), and history as a witness in another case (JURWITNE) and the dependent variable JUROUTCM. Crosstab analysis of "race of juror" and "final outcome of jury selection" demonstrates a significant difference between the prosecution and defense peremptory challenge practices when minority challenges occur (Table 2). The prosecution excludes almost three times as many African American potential jurors as the defense (Table 3). The defense only excludes more jurors than the prosecution in the "white" race category. Eleven out of the 13 trials have minority defendants (8 African American and 3 Hispanic), revealing a correlation between the race of a defendant and the decision by the prosecution or defense to exclude them (Table 4). Correlations between African American defendants and "seated" panels emerge as most salient (Table 5). Defense attorneys represent more minority clients and exclude more white jurors and prosecuting attorneys prosecute more minority defendants and exclude more minority potential jurors. 71

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Table 2: Race and Final Outcome of Jury Selection JURRACE Race of juror JUROUTCM Final outcome of jury selection Crosatabulation JUROUTCM Final outcome of jury selection 1 excused 2 challenged for cause by 3 challenged by judge prosecution by defense 4 seated JURRACE 1 Asian Count Race of % within JURRACE juror Race of juror % within JUROUTCM Final outcome of jury selection 2 H i spanic Count %within JURRACE Race of juror % within JUROUTCM Final outcome of jury selection 3 White Count % within JURRACE Race of juror % within JUROUTCM Final outcome of jury selection 4 African american Count % within JURRACE Race of juror % within JUROUTCM Final outcome of jury selection Total Count %within JURRACE Race of juror % within JUROUTCM Final outcome of jury selection Chi-Square Tests Asymp. Sig. Value df (2-sided) Pearson Chi-Square 29. 1748 9 001 Likelihood Ratio 27.260 9 .001 Linear-by-Linear 1 .625 1 .202 Association N of Valid Cases 383 a 4 cells (25 0%) have expected count less than 5 The minimum expected count is 1.32. 2 22.2% 3 .6% 18 31.0% 32 .1% 27 10 .0% 48.2% 9 19.1% 16 .1% 56 14.6% 100.0% 72 2 2 3 22.2% 22 2% 33 3% 2 4% 2 4% 1 9% 14 7 19 24 1% 12.1% 32 8% 17.1% 8.4% 11.7% 50 68 124 :0/ o 25.3% 46 1% 61. 0% 81.9% 76 5% 16 6 16 34 0% 12.8% 34 0% 19.5% 7 2% 9 9 % 82 83 162 21.4% 21.7% 42. 3% 100 0% 100.0% 100 0% Total 9 100.0% 2 .3% 58 100.0% 15.1% 269 100.0% 70 .2% 47 100.0% 12.3% 383 100.0% 100.0%

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Table 3: Exclusions of African American "Initial" Jurors o/o of AA among By the excused Judge 16.7% Prosecution 20.0% Defense 7.4% Table 4: Breakdown of Exclusions by Race o/o of excused o/o of excused o/o of excused By AA when the Whites when the Hispanic when the defendant is AA defendant is White defendant is Hispanic Judge 100% 29.6% 11.1% Prosecution 62.5% 14.0% 7.1% Defense 83.3% 14. 7% 14.3% Table 5: Breakdown of Exclusions by Race of Juror and Race of Defendant When the When the defendant is When the defendant is Seated Jurors defendant is AA Hispanic White African American 10.4% 8.1 o/o 11.5% Hispanic 12.5% 13.5% 7.7% White 77.1% 78.4% 80.8% In all educational categories for the variable of juror's education, the prosecution excludes more potential jurors except in the category of "college" (Table 2). In this category, the defense excuses 44% and the prosecution excuses 27%. The racial significance exists when we note that of those with college educations, 18% of potential jurors excluded by the prosecution are African American, while only 2.9% of those excluded by the defense are African Americans. Although the defense 73

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excludes 13 more jurors with college educations than the prosecution; they exclude less African Americans with college educations. The differential exclusion of jurors based on education supports the evidence outlined in the race analysis for racial bias during the jury selection process. 74

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Table 6: Education and Final Outcome of Jury Selection Jedu Juror Education JUROUTCM Final outcome of jury selection Crosstabulation JUROUTCM Final outcome of iurv selection Jedu 1 less than high school Count Juror % within Jedu Juror Educat i on Education % within JUROUTCM Final outcome of jury selection 2 high school Count % within Jedu Juror Education % within JUROUTCM Final outcome of jury selection 3 college Count % within Jedu Juror Education % with i n JUROUTCM Final outcome of jury selection 4 graduate/advanced Count % within Jedu Juror Education % within JUROUTCM Final outcome of jury selection Total Count % within Jedu Juror Education % within JUROUTCM Final outcome of jury selection Chi-Square Tests Asymp. Sig Value df (2-s i ded) Pearson Chi-Square 21.656 a 9 .010 likelihood Ratio 24 419 9 .004 linear-by-linear 4.539 1 .033 Association N of Valid Cases 364 a. 4 cells (25 0%) have expected countless than 5 The minimum expected count is 1 .18. 1 excused for cause bviudoe 2 20 0% 4 7% 20 13.8 % 46. 5% 17 11.2 % 39 5 % 4 7.0 % 9 3% 43 11. 8 % 100 0 % 75 2 challenged by 3 challenged orosecution by defense 4 seated 6 2 0 60 0% 20 0 % 0 % 7 4 % 2 5 % 0% 36 30 59 24. 8 % 20 7 % 40 7% 44 4 % 37. 5 % 36. 9% 22 35 78 14 5 % 23 0 % 51. 3% 27. 2% 43 8 % 48 8% 17 13 23 29 8 % 22.8 % 40 4% 21. 0 % 16. 3 % 14 4% 81 80 160 22. 3% 22.0 % 44 0% 100 0 % 100 0 % 100 0% Total 10 100 0 % 2.7% 145 100.0% 39.8 % 152 100 0 % 41.8% 57 100.0% 15 .7% 364 100 0 % 100.0 %

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Thirty one jurors mention having a criminal history (Table 3). Of those, six are African American (23 are white and 2 are Hispanic). However, all African Americans with a criminal history are excluded "for cause" by the judge (4) or by the prosecution in the peremptory challenge phase (2). Nine out of the 10 "seated" jurors who have criminal histories are white. This means that 39% of the white jurors who admit to criminal histories are seated, while no African Americans with criminal histories are seated (even though most defendants are African American). In addition, 9% of all white "initial" jurors claim a criminal history, compared to 13% of all African American "initial" jurors. However, 7% of white jurors make it to the "seated" jury after claiming to have a criminal history, compared to no African American "initial" jurors who claim to have a criminal history making it onto a "seated" jury. In other words, having a criminal history works against the potential African American juror more than for the white potential juror resulting in less African American representation on "seated" panels for African American defendants. 76

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Table 7: Criminal History and Final Outcome of Jury Selection JURCRHIS Does juror have criminal history* JUROUTCM Final outcome of jury selection Crosstabulation JURCAHIS Ooes juror 0 No or not addressed Count have criminal history %within JUACAHIS Does juror have criminal history % within JUROUTCM Final outcome of jury selection 1 Yes Count % within JUACRHIS Does juro r have criminal history % within JUAOUTCM Final outcome of jury selection Total Count %within JUACAHIS Does juror have criminal history % within JUAOUTCM Final outcome of jury selection Chi-Square Tests Asymp Sig Value df l2 sided) Pearson Chi-Square 9 2583 3 026 Likelihood Ratio 8.646 3 .034 Linea r -by Linear 6.328 1 .012 Association N of Valid Cases 383 a 1 cells (12 5%) have expected count less than 5 The minimum expected count is 4.37. JUROUTCM Final outcome of jury selection 1 excused 2 challenged for cause by 3 challenged prosecution _by defense 4 seated 45 7 4 80 153 12. 8 % 21.0% 22 7 % 43 5 % 83 .3% 89.2% 96.4 % 93 9 % 9 9 3 10 29 0% 29.0 % 9 7 % 32. 3 % 16. 7 % 10 8 % 3.6 % 6 1 % 54 83 83 163 14. 1 % 21. 7 % 21. 7 % 42 6 % 100 0% 100.0% 100.0% 100.0 % Total 352 tOO. O % 91. 9% 31 100 0% 8 1 % 383 100 0 % 100 0% Forty one jurors asked for an interview with the judge (Table 4) Of these, 30 (73%) are excused by the judge "for cause. These include 85% of the Hispanics interviewed by the judge; 71% of the white potential jurors interviewed by the judge; and 57% of the African Americans interviewed by the judge. African Americans appear less likely to be eliminated "for cause" when they request an interview with 77

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the judge. Only one African American interviewed by the judge is "seated" on the jury. Three out of the 4 potential jurors who meet with the judge and end up on the "seated" jury are white. Only 9.8% of those who ask for an interview with the judge are "seated," while 46.6% of those who did not have an interview with the judge are "seated." It appears that requesting an interview with the judge results in exclusion from the "initial" panel and that African Americans who meet with the judge are more likely than their white counterparts to be excluded. 78

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Table 8: Interview with Judge and Final Outcome of Jury Selection JURINTJDJ Asked for interview with judge JUROUTCM Final outcome of jury selection Crosstabulation JUROUTCM Final outcome of iurv selection 1 excused for cause bviudae JURINT JDJ Asked for 0 No Count 25 interview with judge %within JURINT JDJ Asked for interv i ew 7 3% with judge %within JUROUTCM Final outcome of jury 45.5% selection 1 Yes Count 30 %within JURINT JDJ Asked for interview 73.2% with judge %within JUROUTCM Final outcome of jury 54.5% selection Total Count 55 %within JURINT JDJ Asked for interview 14. 3% with judge % within JUROUTCM Final outcome of jury 100 0% selection Chi-Square Tests Asymp. Sig. Value df (2-sided) Pearson Chi-Square 130.371a 3 Likelihood Ratio 90.905 3 Linear-by-Linear 75.347 1 Association N of Valid Cases 384 a. 0 cells (.0%) have expected count less than 5 The minimum expected count is 5 87. .000 .000 .000 2 challenged by 3 challenged orosecution by defense 4 seated 78 81 159 22.7% 23 6% 46 4% 94.0 % 97.6% 97. 5% 5 2 4 12.2% 4.9% 9.8% 6.0% 2.4% 2 5% 83 83 163 21. 6% 21.6% 42.4% 100.0% 100 0% 100 0% Total 343 100 0% 89.3% 41 100.0% 10.7% 384 100.0% 100.0% Forty nine "initial" jurors state that they have been witnesses in a court case (Table 5). Of these, 35 are white (71%), 9 are African American (18%), and 5 are Hispanic ( 10% ). Fourteen of those who say they have been witnesses end up on the "seated" jury: 11 white (79% ), 2 are African Americans (14% ), and 1 is Hispanic 79

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(7% ). However, 4 of the 9 "initial" African American jurors who have been witnesses are excluded by the prosecution in the peremptory challenge phase (44%), while 9 out of the 35 white jurors (26%) are excluded by the prosecution. Five out of 35 white jurors are excluded by the defense during the peremptory challenge phase (14%), but only 1 African American is excluded by the defense (11%). Finally, 11 out of the 35 white jurors who have participated as witnesses are "seated" on the final jury (31%) and 2 out of 9 of African Americans who have previously been witnesses make it on the "seated" jury (22% ). Furthermore, almost 20% of all of the "initial" African American jurors have been a witness in a previous trial compared with 13% of white "initial" jurors, yet a proportionately smaller number of African Americans make it onto the "seated" jury. A potential juror with previous experience as a witness appears to affect the chances of remaining on a "seated" panel (28.6% of those who have been a witness are seated, compared with 45% of those with no witness history). In addition, an African American with previous experience as a witness has less of a chance ending up on a "seated" jury than a white potential juror. 80

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Table 9: History as a Witness and Final Outcome of Jury Selection JURWITNE Ever been a witneaa In a trial JUROUTCM Final outcome of jury aelection Crosatabulation JUROUTCM Final outcome of jury selection 1 excused JURWlTNE Ever been o No Count a witness in a trial % within JURWITNE Ever been a w i tness in a trial % within JUROUTCM Final outcome of jury selection 1 Yes Count % within JUAWITNE Ever been a witness in a trial % within JUAOUTCM Final outcome of jury selection Total Count % within JURWITNE Ever been a witness in a tr i al % within JUROUTCM Final outcome of jury selection Chi-Square Testa Asymp Sig Value df (2-sided) Pearson Chi-Square 16.5448 3 001 Likelihood Ratio 14 369 3 002 Linear -by-linear 13.207 1 000 Association N of Valid Cases 381 a 0 cells (.0%) have expected count less than 5. The minimum expected count is 6 69. for cause bviudqe 37 11. 1 % 71. 2 % 15 30 6 % 28 8 % 52 13. 6 % 100 .0% 2 challenged by p r osecution 70 21. 1 % 84 .3% 13 26 5 % 15.7 % 83 21. 8 % 100 0 % Quantitative Analysis: Phase II 3 challenged by defense 4 seated 76 149 22. 9 % 44. 9% 91. 6 % 91. 4% 7 14 14. 3 % 28 6% 8 4 % 8 6% 83 163 21.8 % 42 8% 100 0 % 100 0% The second phase of the quantitative data analysis utilizes an instrument designed to document the sex and gender of the courtroom "players" by trial (Appendix B). I designed an SPSS dataset to reflect documented information Tota l 332 100 .0% 87.1% 49 100 0 % 12.9% 381 100 0 % 100 0 % (bytrial.sav). Included in this dataset are type of trial, verdicts, and charges for use in 81

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future research. Analysis of the data reveals a severe racial imbalance between the race of the courtroom staff and that of the defendants. All judges in the 13 trials are white males except for one African American male judge in Trial #7 and a white female judge in Trial #11. Across 13 trials, 33 attorneys are represented by 14 white prosecutors and 11 white defense attorneys; 3 African American prosecutors and one African American defense attorney; and one Hispanic and one Asian prosecutor. All African American prosecutors prosecute African American defendants and the singular African American defense attorney represents an African American female defendant. All 13 courtroom clerks are white females except for one Hispanic female clerk and one white, male clerk. All bailiffs are white males except for two female bailiffs and one African American bailiff. All court reporters are white females except for a white male court reporter in two trials. In other words, most courtrooms reflect an extremely "white" environment. Whites represent 88% of all official courtroom staff, but only 15% of defendants. Qualitative Analysis: Phase ill I maintain that no one can sit in a courthouse day after day as I did for this research and not be left with a deep sense of racial imbalance in the current judicial system. Hours of waiting outside the jury assembly room watching shackled prisoners shuffling up and down the hallways in an array of jumpsuit colors leaves me with a hollow sense of justice. Primarily young people of color, heads bowed with 82

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desperate, anxious eyes; these people do not look dangerous-they look empty and defeated. This research has left me more determined than ever in my attempt to understand how a country built on acceptance and freedom ends up with courthouse hallways that look like this. The following qualitative documentation results from days spent observing jury selection in the Denver District Court. The events mentioned in the synthesis represent the hours spent watching jury selection and the pages written about them and exist as examples of patterns repeated over and over again in the observed process. Introduction: A Typical Day for Jury Selection Research Seventy people are initially called into the hallway. I wait outside of the jury assembly room number 431 as usual, on a Monday morning. The pool is so large this morning that prospective jury panels are called even before respective courtrooms are ready. Two panels of 70 or more individuals are called into the hallway and then sent two doors down to the city council assembly room until they are called again into a courtroom. This is done to alleviate the crowd in the jury assembly room. A busy day lies ahead. I ask the first young woman clerk who has called her list of names and numbers, whether she is calling a criminal case, "I can't answer that right now. Did I call your number?" "No ... I am here to observe jury selection." "Oh, no ... this is a 83

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civil case, but there will be several criminal trials called today including a murder case" she explains in a much more helpful tone. "Okay, great.. .thank you." I respond. This is just one variation of a familiar dance that takes place in the hallway outside of room 431 in the Denver District Courthouse. The clerks appear flustered and on the verge of a breakdown. Nothing happens systematically or orderly and most of the prospective jurors are herded around like lost lambs. I must insert myself into the fray to find out what type of trial the jury is being called for and then hopefully and innocuously become part of the process that day. Eventually, the panel for the murder trial lines up outside of the city council office and I prepare to follow them to courtroom number 11. I always follow the last prospective juror to make sure that I don't take a seat from someone in the "official" group. I try hard to keep a low profile and I am always conscious that the jurors take precedence over me for the day. It's standing room only by the time the last juror gets to the doorway. I realize that it will probably be a couple of hours before a seat frees up and since I must document all of what I observe today, I require a seat. I back quietly out of the room and head off to wait for another panel to be called. Luckily, a clerk has just called about 40 people to the hallway. She is a bit older and seemingly less flustered than usual during this process. I wait for her to take a breath and ask her if she is calling a criminal trial. "Yes." "Can you tell me 84

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which courtroom?" "Right there," she answers bluntly pointing to the doorway across the hall. "Great" I say and line up behind the group. It is always a mystery to find out what kind of trial I will get. What is less of a mystery is who will be sitting at the defendant's table. Once again I enter and see a young African American man ... shoulders hunched forward ... head hanging over the defense table. Unique to this young man is the pad of paper and pen sitting in front of him. Usually only the attorneys have stacks of papers and binders in front of them. The attorney is a youngish white woman. She looks pale and tired. She has sharp features and tosses her head with little jerky movements. She takes a Dixie cup from the upside down pile that sits between her and the defendant. She offers to pour him some water from the diner style coffee thermos. This gesture makes him look young and vulnerable. "All rise" the clerk's voice booms as the judge enters the courtroom. A large white, middle-aged judge enters and takes his seat on the bench. He announces the case name and number. This will be a second degree burglary and sexual assault case allegedly committed approximately eight months ago. I take another look at the young man at the defendant's table; his youth and vulnerability now in question. I immediately wonder whether he has been in jail since his arrest and try to picture him in a jumpsuit surrounded by much bigger and tougher looking guys. He can't be more than 5 feet 5 inches when he stands and I notice that his pants are huge. Unlike the young men on the outside; these are thick corduroy pants and he wears them pulled 85

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up around the waist where they sit stiffly on either side, gaping around his slight frame. Who would have brought him such ill-fitting clothes? I wonder if these are his own and think maybe his attorney has asked that he pull them up to prevent him from appearing thuggish. Why wouldn't a family member have provided something more suitable? I look around the courtroom. Other than the big white judge, the middle aged white clerk, the older white female court reporter, the extremely bored looking white male bailiff, the middle aged black female prosecutor, and the defendant's attorney; the jury and I are the only ones present. No family member is here to watch the selection of those who will decide the fate of this young man. Most of the potential jurors have books, newspapers, briefcases, and cell phones. When the clerk asks that they silence the phones, I can't help but notice several people do so begrudgingly. I am struck by how "put out" many of the prospective jurors appear as their attitudes betray a sense that their freedom is being impinged upon today-the young, black man at the defense table invisible to them. I wonder if the defendant remains more inured to this attitude than I. I also wonder if he realizes that his future will be determined by this sea of detached (mostly white) faces. The judge explains the framework for the jury selection process and the clerk calls by name and number 25 people to take their seats in the jury box. Usually in criminal cases where a jury of twelve, plus one alternate will ultimately be selected; 86

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25 initial panel members will be called to the box. These 25 potential jurors take their seats beginning in the back row of the jury box and starting with the seat closest to the judge's bench. After those seven seats are filled, the second row of seven seats fill and finally the prospective jurors fill a row of 11 chairs set up in front of the jury box. The remaining 40 prospective jurors stay seated in the gallery. I sit as close to the defendant as possible; usually right behind him so that I have a similar perspective of the jurors and the selection process as he does. Today, I cannot see the end of the front, bottom row because the podium blocks my view. Since the podium is on wheels, I wonder why the defense attorney does not move it so that her client can see the faces of the entire panel. As voir dire begins, the lack of eye contact becomes particularly bothersome and the defendant keeps straining towards his lawyer to try to see who the disembodied voices are attached to. Three jurors are immediately excluded "for cause." Juror number seven does not speak English and juror number six is not an American citizen. The judge excuses juror number four when she describes herself as mentally ill; a condition for which she is on medication. Three individuals from the gallery replace each of these jurors and the judge continues voir dire. After observing and synthesizing many jury selections certain patterns emerge. Primary among these; the squeaky wheel usually works. In this case juror number 7 (a young, white male who has replaced the non English speaking juror) begins to raise his hand in response to virtually every 87

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question the judge poses. Juror number 23 joins in (a young, white, male firefighter), along with juror number 11 (an Hispanic middle-aged male). Finally, juror number 11 asks to speak with the judge in chambers and is immediately excused "for cause." Despite juror number seven's attempts; he is not excluded until the peremptory challenge phase when he is the defense's fifth challenge. The pattern with jurors' such as these is that they raise their hand after virtually any question that may apply to them. In this case, these include knowing a police officer (both juror number 7 and 23 claim to have distant relatives that are somehow related to law enforcement), needing to be at work, knowing someone who has been a party to a case, taking classes relating to law, etc. Although some of the answers to these questions might cause valid concern, it is important to note that a similar pattern of responses emerge in most jury selections. In tum, most judges will typically ask whether the juror ... can have a great uncle who was once a cop in Georgia and still remain impartial while hearing evidence in a trial." In other words, most judges make an attempt to "shame" potential jurors into admitting that they can remain unbiased. After observing multitudes of these exchanges, I note that most jurors become savvy to the point of this questioning and begin to raise their hands only when they feel that a particular issue might truly affect their ability to be impartial towards all sides during the trial. This exchange between judges and potential jurors occurs time 88

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and time again during every jury selection observed for this research. The familiar pattern allows me to become acutely aware when prospective jurors raise their hands repeatedly and for innocuous reasons. I cannot definitively discern whether the perseverance of these jurors is an attempt to "get out" of jury duty. However, the persistence of some jurors supports the fact that the squeaky wheel does appear to work. Even if it does not always work on the judge during his voir dire it will ultimately be effective during the peremptory challenge phase; after all, what attorney wants a juror seated who obviously does not want to be there. Patterns Observed During Jury Selection across Thirteen Trials Four African American males begin as part of the 25 seat panel. Two of these are young men of a similar age to the defendant. An aspect of my research that I struggle with is whether or not this makes a difference. Who is to say that these men's life experiences are anything like that of the defendant's? Without having heard any testimony concerning the background of the defendant, I cannot make the presumption that these four males have anything in common with him or that they would be more or less fair than any other juror. However, my experience as a citizen of the United States makes me sensitive to concepts of racism and to the shared experiences of many African American men who are profiled and often harassed by the "establishment" including security guards, store owners, and police officers. 89

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Some of these assumptions rise to the surface in the courtroom. Juror number 14 (a young African American male) raises his hand in response to the judge's voir dire question concerning whether any one of the prospective jurors has been a party to a criminal case and explains that he was a defendant in a case involving the assault of a police officer. Judge: "Did your case go to trial?" Juror 14: "No" Judge: "Did you feel you were treated fairly by the police?" Juror 14: "No" Judge: "Did you feel you were treated fairly by the District Attorney's office?" Juror 14: "No" Judge: "You are excused." Similarly, juror number 18 responds to the prosecutor's voir dire. Juror 18: "I was born and raised in Denver. I get stopped all the time here. I haven't gotten a speeding ticket in over 7 years. I have never caused an accident. I get pulled over all the time-stared at by the cops. They are constantly shaking me down and I am angry!" Judge: "Mr. ____ you are excused" 90

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These exchanges and the resulting exclusions "for cause" eliminate two of the prospective African American males on this panel; however exchanges like these are typical across all trials observed particularly with an African American defendant. In these instances, individuals excused from service may have contributed a unique perspective to the process and may have held a deeper understanding for the experience of the defendant. The phrase "innocent until proven guilty" bantered around by judges and attorneys in most jury selections loses weight when men who may know more about what those words mean to an African American defendant appear to contribute to their own exclusions. In essence, exactly what got juror number 14 and juror number 18 excluded, may exist as valuable characteristics required to add legitimacy to the "seated" jury. A salient pattern observed during my research exists in the documentation of potential jurors with the same racial status as the defendant (that is, mostly African American) vehemently proclaiming why they cannot be a fair juror. I deduce that many of these individuals do not trust the "system." In fact, many of them appear (based on voir dire responses) to distrust the system. As noted in the data analysis from Phase II, African American potential jurors must be cognizant of the fact that if they remain "seated" on the jury, they will end up being one or two African Americans in the room (one of whom is the defendant) and among an all white jury whose responsibility includes passing a verdict onto an African American defendant. 91

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I do not presume to assume that these individuals would not be just as fair in deliberations as their white counterparts or that they would not ultimately (even given their personal experiences with racism within and without of the system) be able to convict the defendant. I simply hypothesize that the ability for them to understand potential victimization by the system and then partake in a process whereby another minority individual might ultimately fall prey to such victimization; is too much for many African Americans to contend with. This results in a jury wherein the defendant has very few jurors who share similar experiences with discrimination and racism within the system. In another case, three African American females sit on the initial panel of 25. All three are excluded from the final jury. The prosecutor dismisses two during the peremptory challenge phase. These exclusions are allowed for any reason other than race or gender and each side is allowed six exclusions. African American female juror number five questions whether she can trust the testimony of just one witness for the prosecution (something the prosecutor suggests might happen); explaining that in a "he said, she said" scenario she might need more than the testimony of one witness to find the defendant guilty. The other African American female juror number 20 (also excluded by the prosecution) has a brother who was a robbery defendant. Both of these African American exclusions support my earlier contention that African Americans hold unique perspectives and experiences surrounding the judicial system 92

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that ultimately may render them valuable participants on the "seated" jury of an African American defendant, yet both end up excluded from the panel. Two African American men remain on a seated panel. An older gentleman with a cane who only speaks what is required of him (juror number 9) and a mostly silent, low-profile young man (juror number 22). Out of the 13 jury selections observed, this selection beats the odds by having two African American males seated on the final panel. Contrarily, all African American females are excluded in this jury selection (usually the minority representation statistics are sustained by inclusion of minority females). The difference in this case probably rests with the sexual assault charges. I should note that six out of twenty five "initial" jurors are African American in this case (more than in any other jury selection observed), but only two remain on the seated jury (33% of the potential African American jurors) whereas, 17 out of 25 potential jurors were white and 9 remained on the seated jury (52%) resulting in the ratio of African Americans who remained on the seated jury (for an African American defendant) as lower than for white jurors. In another case with an African American male defendant, the "initial panel" has no African American males on it. However, two African American females sit on the "initial panel" (juror number 3 and juror number 16). Juror number 16 is excused "for cause" when she explains that she knows the defendant (she also explains that she was a witness to her sister's murder). Juror number 3 is excused as the 93

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prosecution's first peremptory challenge. My observations contain no information that may have contributed to this exclusion. Further racial considerations in trials exist. In one case the trial contains typical experiences concerning minority jurors. Two Hispanic females and one Hispanic male sit on the "initial panel." All three are excluded in the peremptory challenge phase. Juror number 10 (an Hispanic female) explains that she believes "Only God should judge." This juror cries under further questioning by the judge and is eventually excluded as the prosecution's fourth peremptory challenge. Hispanic female juror number 13 explains that she does not trust the police and that her religion makes it "hard to judge." She further explains that her husband has been "beaten by the police" and that she has an overarching distrust of police officers. She becomes the prosecution's fifth peremptory challenge. Hispanic male (juror number 15) is the defense's fifth peremptory challenge. Nothing in my observation lends itself to this exclusion except that the juror's father is a lieutenant in the fire department. An Interesting Case One of the jury selections stands out from the others. The judge begins by explaining that the case is "gang affiliated." The defendant, an African American male with an air of defiance that emanates from the defense table where he sits, looks back at the potential jurors in an antsy, agitated manner. It remains unclear why the 94

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judge would open the proceedings by disclosing the gang element of the case and I notice that the potential jurors seem more alert than usual; if not a bit apprehensive. The courtroom "players" this morning consist of a white female prosecutor and an African American male prosecutor. The defendant is represented by a white male. All other court representatives are white as are most of the potential jurors. As the group of 25 is called by name to take their seats in the "initial" panel, the courtroom doors swing open and four young African American men enter and sit down. They spread out to occupy most of the second and third rows of the gallery. They sit with oversized parkas and unlaced timberland-style boots; legs wide apart and arms spread out to rest on the back of the gallery benches. "John Smith," the clerk calls another name "Betsy Johnson," "Jack Brown" One by one the potential jurors--called by first and last name-rise and take their seats. A distinct, palpable sense of intimidation hangs in the air. The courtroom is always quiet during this process, but today's silence is magnified by the unusual presence of observers in the gallery. I fight my own urges to assume that these young people are gang members and remind myself that it is just as likely that they are family members or friends of the defendant. Of course, I know what many of the potential jurors do not know; that it is extremely rare and atypical for family members 95

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to attend jury selection (so far I have only observed one trial where family members were in attendance for the jury selection process). Several issues are at play here. First of all, the judge seems to have added apprehension to the whole process by announcing that this is a gang affiliated case. Second, jurors are being called by first and last names in front of an accused gang member and what may be interpreted by the potential jurors as other gang members sitting in the gallery. I actively begin recording data as the 25 jurors proceed to their seats. Two of the young African American men show interest in what I am doing. I have a large binder that I leave open vertically so that the top cover blocks the sheets that I am recording on. The young man closest to me strains to get a look, but in the next instant his cohort flicks him on the shoulder with the back of his hand and all four stand up and saunter out. They never return and in an instant what felt like an act of intimidation seems to exist only as a mirage. I include this episode in my narrative because it is common during court proceedings (and jury selection is no exception) for observers to move through the courtrooms. Often they are students in a Government class, law students, or individuals killing time while waiting for their own proceedings to begin. What stands out about the group of people I describe here is that they were young African American males entering a courtroom where the judge has already announced a gang affiliated case. The atmosphere in the courtroom when these young people entered 96

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reeked of fear and the understanding became all too obvious that this many African Americans (albeit there were only four!) should not be in a courtroom unless they are "affiliated" with the defendant or unless their purpose is intimidation. However absolutely no evidence exists that these individuals were anything more than a group of high school students on assignment to observe courtroom proceedings-other than their race. Synthesis Documentation and analysis of Phase I, II, and III illustrate the realities and idiosyncrasies that exist in jury selection Based on 13 jury selection observations, each phase contributes to creating an in-depth look at jury selection in the Denver District Court Phase I provides quantitative evidence of the difference in racial representation between "initial" jury panels and "seated" panels; Phase II provides a racial breakdown of the courtroom "players" illustrating a majority "white" representation; and III presents a unique opportunity to understand the details behind some of the racial bias that surfaces in jury selection and supports the intentional and unintentional consequences of power through agency. Without each of these perspectives, it would be all too easy to chalk up the racial bias patterns from Phase I to racism. However, a new dimension to the racial breakdown of "seated" panels comes to light with the understanding gained in Phase 97

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III; that in a significant number of cases, minority "initial" jurors request their own release based on negative attitudes towards and experiences with the judicial system. Some of these attitudes appear valid, since Phase II provides analysis that illuminates a vast lack of participation of minorities in the "official" judicial arena. The mixed methods approach of this research results in a rich understanding of jury selection thus far neglected in previous research and lends itself well to the support of Anthony Giddens' Structuration theory. 98

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CHAPTER6 JURY SELECTION: IN SUPPORT F OF ANTHONY GIDDENS' STRUCTURATION THEORY Orlando Patterson and Anthony Giddens' Concept of Domination The theoretical aspect of this research focuses on Anthony Giddens' structural dimension of domination as transformed into power (action) through facility (capacity). According to Giddens, domination exists as a social system that stems from authoritative resources. I draw on insights into authority garnered from Orlando Patterson s Slavery and Social Death (1982) and Rituals of Blood (1998) and apply them to the current perpetuation of domination by an authoritative white society. I implement Patterson's methodical presentation of the creation of authority by slave owners as a guide to help illustrate the foundation for authoritative resources enjoyed by modem culture and implemented through the judicial system. I maintain that the tactics illuminated by Patterson for the creation of authoritative power over slaves are similar to those implemented to create subtle forms of racism in our modem culture. Patterson explains that the power of slave owners in the institution of slavery must necessarily bleed into the larger society: ... the master-slave relationship cannot be divorced from the distribution of power throughout the wider society in which both master and slave find themselves" because the slave owner needs ... both 99

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the recognition and the support of the non-slave members of his community for his assumption of sovereign power over another person" (p. 35). I suggest that subtle forms of racism in current judicial institutions must also be recognized and supported by wider society in order to sustain them. Patterson further posits that the acquisition of authority in a slave society emerges from the "institutionalization of the slave relationship" (p. 36) resulting in slavery as an accepted norm by society. My contention in developing a structural comparison between the overt institution of slavery and the underlying forms of institutionalized racism in our judicial system rests in understanding that these forms of modem racism have become accepted norms created through the use of symbols and resulting in authoritative control of institutions. Patterson supports this contention when he expounds on Max Weber s discussion of tradition (patterned behavior of culture) by incorporating Meyer Fortes and Raymond Firth's insights into the use of common symbols and their contribution to power. Patterson explains that ... herein lies the source of authority ... Those who exercise power, if they are able to transform it into a "right," a norm, a usual part of the order of things, must first control... appropriate symbolic instruments (p. 37). Patterson maintains that slavery exists as a" ... highly symbolized domain of human experience" (p. 38); thus, slavery supports Fortes and Firth's assertion that symbolic 100

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instruments generate norms created by the powerful and transformed into authority. I put forth that racism, institutionalized in the judicial system, exists as a "highly symbolized domain" for current society resulting in the perpetuation of racist norms that largely afford authoritative resources to white society. These authoritative resources become the building blocks for the structural dimension of domination discussed by Giddens. Creation of the symbolic condition Patterson terms as the "social death" of slaves rests at the heart of his discussion on authority. "Social death" exemplifies slavery as an accepted norm, as a symbolized domain of human experience, and as the result of implemented symbolic instruments. Patterson explains that social death evolves from two basic representations: the intrusive cultural mode where slaves are recruited from the outside, relegating them as intruders who do not belong; or the extrusive cultural mode in which a slave becomes an outsider by "falling from grace." Although we do not currently live in a slave society, implementation of intrusive and extrusive cultural modes is evidenced in white America's attempt to "manage" the image of African Americans (predominantly males). In Rituals of Blood ( 1998) Patterson provides several examples of how modem society subtly implements the intrusive cultural mode with a reference to George Bush's use of Willie Horton as the "face of crime." As Patterson explains, the Bush campaign used pictures of Horton (an African American male who 101

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committed another crime after being released through a furlough program) throughout the media and in campaign advertisements describing him as a man who will "terrorize innocent people." Media consultant Larry McCarthy added the menacing picture of Horton to the ads, calling Horton "every suburban mother's greatest fear." This tactic emereges as tentamount to bringing Horton's image into the homes of Americans and relegating him as an intruder who does not belong (intrusive). Further examples of the instrusive cultural mode can be interpreted from a multitude of movies and television shows representing African American males as thugs, rapists, murderers, robbers, and gang members. Modem media effectively uses the power of images to create African American males as outsiders intruding into the homes of a predominantly white American audience. The extrusive mode Patterson describes is evidenced in the disproportionate number of incarcerated African American males in the United States as well as the number of African American males that live under the thumb of the judicial system. According to Bureau of Justice statistics, an estimated 12% of black males, 3.7% of Hispanic males, and 1.7% of white males in their late twenties were in prison or jail between midyear 2004 and midyear 2005 and African Americans were almost three times more likely than Hispanics and five times more likely than whites to be in jail. In contrast, self reports reflect that 48% of black males report violent offending by the age of 27 compared with 38% of white males. This represents a 5:4 black to white 102

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self reported offense ratio, while the ratio of arrests is much more disparate at 4 : 1 (Haas and Alpert 2006: 104 ). These statistics support an agenda towards creating African American males in an extrusive light (falling from grace). Further examples contributing to the extrusive cultural mode include racial profiling, harassment, and a large police presence in African American communities. These practices result in higher levels of participation for African Americans in the penal system. At the hands of the authoritative, judicial arm of government, these patterns relegate a portion of African American males as "outsiders" who have "falling from grace" (extrusive model) in the eyes of many Americans. Constructing the African American male identity as "intruder" or "other" through intrinsic and extrinsic cultural modes contributes to a modem form of "social death" in the eyes of white America resulting in racism as an accepted norm, as a symbolized domain of human experience, and as the result of implemented symbolic instruments. I posit that the symbolic state of "social death," created and supported by an authoritarian white society, exists in some form for African American (predominantly) males today. According to Patterson, liminal incorporation (formal marginalization resulting in a loss of identity and normality) of slaves; rituals and marks of enslavement; and symbolic rejection by the slave of his past including his kinsmen; all work as instruments to establish slaves as socially dead. Interpretations of 103

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modern culture can be viewed as implementing some of these tactics. A judicial system that incarcerates African American males at a significantly higher rate than their white counterparts, as well as restrictive probation and parole systems, which are notoriously difficult to maneuver out of, creates a form of liminal incorporation The Bureau of Justice statistics on re-incarceration show that African Americans are more likely than whites to be re-incarcerated (73 percent vs. 63 percent) and non-Hispanics more than Hispanics (71 percent vs. 65 percent). The difference in recidivism rates contributes to liminal incorporation by isolating a substantial population of African American males from their children, families, and friends for long periods of time. Consequences of high incarceration rates and victimization include the fact that African American birth ratios are approximately 102-103 male for every female, but by the age range of 40-44 this drops to 86 males per 100 females, compared to a white ratio of approximately 100 males per 100 females at birth that remains the same at the 40-44 age range. In addition, the loss of privileges of citizenship through restriction of voting rights contributes to liminal incorporation. An estimated 1.4 million (13%) of the African American male population has lost the right to vote due to incarceration (Hass and Alpert, 2006, p. 105) Patterson explains the disparity between crime and impression "management" of African American males: The truly egregious aspect of Bush's use of the fearsome-looking Horton as his symbol of crime was not that it called attention to the disproportionate rate of crime among Afro-Americans but that it was 104

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simply a modem version of an age-old cultural practice of projecting Euro-American evil onto the demonic Afro-American male (Patterson, 1998, p. 243, emphasis added). Through an examination of Patterson s systematic presentation of the construction of authoritative resources by slave owners over slaves, I have created a roadmap to the authoritative resources enjoyed by the current white majority in the United States and implemented through our judicial system. This roadmap effectively illustrates Giddens' structural dimension of domination as outlined in his Structuration theory. Jury Selection and Giddens' Structuration Theory A key element to understanding Structuration theory lies in the circular relationship between agency and structure: ... agents draw on structures to produce actions that change or reproduce structures. This is the cycle of structuration. Neither structures nor agents are given primacy. Both require the other. It is not one or the other but both that are involved in social processes (Stone 2005:20). Through this recursive lens I apply Giddens' dimension of facility to the structural context of domination. Capacity exists in Giddens' model as an essential component to facility. Giddens explains that capacity and capability are what agents use to draw on domination. This interaction results in action taken by the agent; in the case of this research, the agent's power over jury selection bias. Since I have established 105

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white majority authoritative control (supporting the structural domain of domination) using Orlando Patterson's research as a platform, I contend that agents draw on authority through their capacity to access the judicial system and through their capacity as agents within the judicial system to demonstrate power during jury selection. The evidence in this research supporting authoritative control resulting in the capacity for access to the judicial system rests in documentation of the "makeup" of the courtroom. As detailed in the analysis section from Phase II of this research, the majority of official participants in all trials are white. In the instance of minority representation, little variance is seen in the majority of the trials. Five out of 40 prosecutors are minorities and only two are African American. Out of 34 defense attorneys, only one is African American. One judge is African American (out of 13 trials) and there are no minority court officers, i.e. clerks, bailiffs, court reporters. Minority representation is only evidenced in the "initial" jurors (many of whom are excused) or in the race of the defendant ( 11 of 13 are minority defendants). Evaluation of the documented attributes of the courtroom "players" supports my assertion that domination through authoritative control contributes to facility. That is, agents who access facility through domination are the same race as those in authoritative control. The capability for the authoritative race to access the judicial 106

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system allows for the capacity to transform jury selection into power (action of the agent) over the jury selection process. A crucial component to Giddens' theory rests in the aspect of agents both drawing on structure and contributing to it: Giddens places great emphasis on the fact that when interacting agents draw from particular aspects of the wider structures of domination ... by means of the various modalities (in this case facility), they are at one and the same time engaged in the process by which whole social systems are reproduced (Stone 2005: 19 parenthetical added). The significance of the current jury selection research lies in this fundamental aspect of Giddens' theory. The evidence of racial bias during jury selection as explained in the quantitative analysis of data from Phase I of this research exemplifies an agent's power facilitated through domination as explained by Giddens' Structuration theory. That is, the action (racial bias during jury selection) taken by agents (predominantly white officers of the court) employing the capabilities and capacities afforded them through authoritative control (the dominant white race). However, for any research to fully support Giddens' theory, it must also illustrate the complex and fundamental attribute of Structuration as a circular and recursive process; not one reduced to explaining action or agency one-dimensionally (through structure), but blossoming into the conceptual realm where in tum, agency influences the change or reproduction of structure. The third phase of the current 107

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research illustrates this aspect of Giddens' theory In phase III, I supplement the demographic information garnered from jury selection observations in Phase I and II with notes concerning specific questioning tactics of attorneys and answers given by the "initial" jury panel. As discussed in the qualitative analysis section, one of the outstanding aspects of these observations lies in the responses of potential African American jurors. While some potential white jurors voice concerns about serving on the jury and are sometimes excluded for these concerns; the issues for most potential African American jurors differ from those of their white counterparts in that the African American jurors evoke previous, negative experiences with the judicial system as reasons for exclusion (this is not the case for white jurors). White jurors are more likely to voice concerns over specific charges, conflicts with their work schedules, vacations, or caretaking their children; while African American jurors are more likely to vehemently voice concerns surrounding bad run ins with police, having been convicted or accused of a crime, or flatly voicing their lack of faith in the judicial system. This arises as one of the most salient and revealing facets of the current research and supports the fundamental aspect to Giddens' theory that power and structure are recursive. The actions observed in Phase III of this research can be examined through Giddens' theory as contributing to change rather than reproduction of the structure. Objections made by potential African American jurors asserting that the judicial system is biased against African 108

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Americans arise as action (through agency) against the authoritative control by whites of the judicial process. In essence, these jurors are saying "We won't participate in a system that we see as inherently unfair towards us." In so stating, these potential jurors find power through agency. Their initial participation may have been facilitated by the law (mandatory jury service) and based on domination (authoritative control of judicial system), but their personal response indicates action through agency and might be interpreted as creating a new structural dimension or social system; perhaps in the form of rebellion. I have illustrated the structural dimension of domination by applying Orlando Patterson's discussion on authoritative control to support control of the white majority in the United States. I assert that this authoritative control facilitates (through capacity) the predominant white participation in the judicial system (government institutions). I illustrate how power emerges as the action taken by agents through the racial bias exhibited in jury selection. I sum up by positing that several avenues of recursive action taken by agents either flows back into structure helping to reproduce it, or contribute to a change in structure. First, the agency of the white majority exhibited in the power phase of Giddens' model through jury selection not only contributes to authoritative control, but also contributes towards control over allocative resources by restricting the capacity for African Americans to enter into the judicial realm and by cutting off 109

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African American males from the capacity for economic gain (note incarceration rates above). Second, the racial bias of the attorneys during the peremptory challenge phase demonstrates action taken by the agent (power) accessed through the structural aspect of domination. Third, the opting-out of jury service by African Americans who overtly voice a lack of faith and distrust in the judicial system limits their participation and recycles the authority of the system back into the hands of white America. This emerges as particularly disturbing given the proportionately high number of African American defendants observed in this research. 110

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CHAPTER 7 CONCLUSIONS Jury selection emerges as a useful tool in supporting Anthony Giddens' Structuration theory. As hypothesized, this research supports the social system of domination stemming from authoritative resources controlled by the dominant white majority. Analysis of data collected during the jury selection process supports the facilitation of participation in the judicial system manifested in power implemented through racial bias during the jury selection process The research further supports the recursive relationship between social systems and agency posited in Structuration theory through the narratives which describe the action taken by African American potential jurors to opt out of the process. Some subjective conclusions made over hours of observing the courtroom reflect a dim view of the jury selection process as a whole. In all trials, potential jurors are asked by either the defense or prosecuting attorney if they want to be here or if they want to be selected. In the vast majority of cases the unanimous response is "no." In every trial observed, potential jurors ask to be released. Typically those who ask once, find a way to ask repeatedly. This research supports the adage concerning the squeaky wheel. The more noise a potential juror makes, the more certain it becomes that they will be eliminated by the judge "for cause" or by the attorneys 111

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during the peremptory challenge phase. The bottom line is that no attorney wants a juror seated who doesn't want to be there. This research provides insight into the apathy of potential jurors. The tendency for potential jurors to "get out" of jury service weakens the depth and breadth of the seated jury. The findings in this research support a low level of minority participation on seated juries and unbalanced representation where African American defendants are concerned. Analysis of data collected during the peremptory challenge phase expose racial bias in jury selection. Observations and analysis of jury selections in this research add a new dimension to previous studies on the topic by incorporating quantitative, qualitative, and theory approaches thus providing a rich, dynamic appreciation for the process The conclusions support the contention of others before it that juries are not fairly representing those who face them. Defendants and their families face juries at a most vulnerable state when the best interests of all involved should be met. One of the most distressing elements of the current research lies in the responses during voir dire of African Americans on the "initial" panel. The overt statements by many potential African American jurors concerning their bias against the judicial system based on previous experiences emerge as crucial evidence in support of Giddens' theory. The structural element of white authoritative control creates judicial institutions that are predominantly white as evidenced in 112

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Phase II of the present research. The symbolic creation of the African American male as "socially dead" in the eyes of many white Americans leads to racial bias in institutions such as the judicial system. Racial bias results in large numbers of African American males as defendants and as excluded from the "seated" panels in jury trials. All of these structural issues give rise to some African Americans voluntarily opting out of the process, which in tum feeds back into the structure of domination. Based on the findings in this study, jury selection demands further scrutiny A continuation of in-depth data collection and research is recommended. Suggested avenues for further research in support of Giddens' Structuration theory include using the present jury selection data to investigate relationships between "initial" panels and "seated" panels based on Hispanic and gender participation. Examination of racial and gender implications in other institutions such as the United States Congress, professional sports, and industries that utilize immigrant (both legal and illegal) workers emerge as salient areas for further research in support of Structuration theory. 113

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APPENDIX A Juror# Race Gender Age LOE/AS Occ M!Kids Denver Witness Victim Crim/His SOJ If yes ReachV PoliceAss Ask Release Inti Judge 114

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APPENDIXB Courtroom #: Start time: End time: CASE#: VERDICT Judge: Defense Attomey(s): Defendant: Prosecutor(s ): Victim: Charges: Bailiffs Court Reporter Clerks 115

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APPENDIXC 1) A large pool of jurors (hundreds) are randomly called to the Denver District Court jury assembly room 431 through DMV and voter registration records 2) A pool of approximately 30-70 jurors are randomly called into the hallway to follow a clerk to a courtroom for a specific trial's jury selection. This number varies depending on type of trial and the severity of charges. This is where I wait and if a fairly large number of people is called, I ask the clerk if this is a criminal trial. If she says yes, then I follow this group. 3) Once in the courtroom, 14-25 "initial panel" jurors are randomly called from the larger group and take seats in the jury box 4) Questioning by the judge takes place (voir dire) 5) If jurors display through their answers any form of bias concerning the case, they are excused "for cause" and a new name is called from the gallery (where the remaining -30-70 jurors are seated), so that there are always the same number of "initial panel" jurors in the jury box. 6) After the attorneys "pass" the "initial jurors" "for cause" (this means that they agree with the judge that all "bias" jurors have been excluded up to this point) they get an allotted amount of time to question (voir dire) the jurors. Usually each side gets 20-30 minutes 116

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7) Then, each side has the opportunity to "challenge" jurors. This essentially means they can exclude them and this can be done for any reason other than race or gender. No reason has to be provided. In felony cases the "initial panel" starts with 25 people and each side can eliminate 6 jurors through this peremptory challenge phase. Peremptory challenges exist as the final stage of jury selection. Exclusions alternate between the prosecution and the defense in their peremptory challenges resulting in rapid fire chess-like maneuvers by each. For example, just having an idea of the six potential jurors that an attorney may want to exclude is not always enough because if the other side excludes someone on that list then a new exclusion must be decided on immediately. This requires a certain amount of thinking on one's feet. In addition, once the juror is released who has occupied one of the 14 seats in the actual jury box; then a juror from the front row of 11 chairs must rise in systematic order and take that juror's place. So, there are people rising and leaving and rising and changing chairs and a feeling of chaos often ensues until 13 individuals chosen to decide the fate of the defendant are all suddenly "seated" and the evidence phase of the trial begins. 8) The "initial panel" is always seated with 13 jurors in the back two rows and the remaining 12 seated in front 9) The attorneys alternate their challenges beginning with one from the prosecution. They may only challenge jurors in the back two rows. As soon as the excused juror leaves, the first person in the front row replaces them in the seat that the excluded 117

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juror vacated (in the back two rows). This is a "musical chairs" type of exercise, but it was done like this in every trial I have observed. 10) When 13 jurors are left, these are the "seated" jurors for the trial 118

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