Fair Juries

High-profile jury trials have catapulted concerns about jury fairness to the center of public consciousness. The public demands—and deserves—fairness from its juries. Despite the jury’s sound performance in most cases, we can do better. The groundwork for the jury’s capacity for fairness is laid long before prospective jurors enter the courtroom. It is further shaped by processes that occur during jury selection, throughout the trial, and in the course of jury deliberations. Most of these influences are not immediately visible to the public. In this Article, we provide a comprehensive examination of the phases of the jury trial that are critical to achieving fair juries. We describe how problems at each stage of the jury trial can undermine performance and we propose a set of important empirically-grounded reforms that will strengthen jury selection and trial procedures, optimizing fair juries now and into the future.

* Shari Seidman Diamond is the Howard J. Trienens Professor of Law at Northwestern University Pritz-ker School of Law and a research professor at the American Bar Foundation.

** Valerie P. Hans is the Charles F. Rechlin Professor of Law at Cornell Law School.The authors are grateful for insightful feedback from Kevin Clermont, Phoebe Ellsworth, Paula Han-naford-Agor, Richard O. Lempert, Mona Lynch, Nancy S. Marder, and Mary R. Rose. Thanks as well for the commentary we received from the judicial attendees at the 2021 Forum for State Appellate Court Judges of the Pound Civil Justice Institute and the input from James E. Rooks, Jr. on the papers we wrote for, and the presentations we gave at, the Forum. The current Article draws on ideas and material from those papers and the commentary we received.

The full text of this Article is available to download as a PDF.