Diane speaks with Dr. Roger Kligler who is living with advanced stage cancer on why he's suing the state of Massachusetts for the 'Right to Die' and with Dr. Jessica Zitter, and intensive care and palliative care specialist on why better communication is so needed between doctors and patients facing end-of-life issues.
Jury duty is a key element of the American justice system. But absenteeism is a growing problem. In our nation’s capital, only 20 percent of those summoned actually show up to serve. And that trend spans much of the nation. Some courts have enacted strict punishments, from fines to jail time. Others say the answer is better education about jury service and how it benefits not just our legal system, but the individual serving. Studies show that political engagement can actually rise for people who deliberate on a jury, and satisfaction with our courts may increase as well. But for many Americans, a jury summons still represents a burden. Join us to discuss jury duty in America today and how some say it can be improved.
- Andrew Ferguson associate professor of law, University of the District of Columbia School of Law; former supervising attorney at the Public Defender Service for the District of Columbia. He is the author of "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action."
- Paula Hannaford-Agor director of the Center for Jury Studies, National Center for State Courts.
- John Gastil head and professor, Communication Arts and Sciences and Political Science at Penn State, and director of Penn State's McCourtney Institute for Democracy. Co-author of "The Jury and Democracy: How Jury Deliberation Promotes Civic Engagement and Political Participation."
- Melvin Wright Associate Judge, Superior Court of the District of Columbia; Presiding Judge of the Civil Division and chair of the Jury Committee.
MS. DIANE REHMThanks for joining us. I'm Diane Rehm. For many Americans, the call to jury duty feels like a nuisance, but with sky-high absenteeism, efforts are under way to get jurors excited about serving and reforms in the courtroom have improved the experience for jurors who do show up, but many say we can do more to increase attendance and engagement.
MS. DIANE REHMJoining me in the studio to talk about jury duty in America today, Andrew Ferguson of the University of the District of Columbia School of Law, Judge Melvin Wright, associate judge for the superior court of the District of Columbia. And joining us from the studios of WHRO in Williamsburg, Virginia, Paula Hannaford-Agor of a National Center for State Courts.
MS. DIANE REHMThroughout the hour, I'll look forward to hearing your comments, questions, join us on 800-433-8850. Send an email to email@example.com. Follow us on Facebook or Twitter. And thank you all for being with us.
MR. ANDREW FERGUSONThank you very much.
JUDGE MELVIN WRIGHTThank you.
MS. PAULA HANNAFORD-AGORThank you.
REHMAndrew Ferguson, I was astonished to read that only 20 percent of people here in the District of Columbia show up after a summons for jury duty. There really is a crisis.
FERGUSONAnd it's not just Washington, D.C. In jurisdictions as diverse as West Texas and Washington, 20 to 25 percent of the people show up, which means that 75 to 80 percent of the jurors don't show up. For every 100 summons, only 20 to 25 people show up to fill those seats.
REHMAnd so what are the consequences for the courts themselves?
FERGUSONWell, the consequences, of course, is that the burden on those people who do show up increases, but it also has resulted in certain cases getting continued. There are murder trials in Youngstown, Ohio, Natchez, Mississippi, that had to be postponed because not enough jurors showed up. Can you imagine sitting there as the family of that victim, when they show up to court, or the defendant, whose life is on the line, to come there before a jury and to learn that your fellow citizens hadn't come to support this system of justice that we all share.
REHMAnd to you, Paula Hannaford-Agor, why are people not showing up?
HANNAFORD-AGORWell, actually, the numbers themselves, there's a lot of reasons why jurors don't appear for service. Some of them don't receive their summons and so typically across the country, about 15 percent of the summons that are mailed are actually returned to the court marked as undeliverable. Some people are disqualified from service. They're not a U.S. citizen. Perhaps they've moved out of state or out of the county where they were summoned to service.
HANNAFORD-AGORThey may be exempt from jury service, particularly if they've served recently in another court or in that court. And some people are excused for hardship. If it's truly a real either physical or financial hardship or a great inconvenience, they may actually be excused. So typically, what we see in terms of people who just don't show up, averages about 10 percent across the country, although in some courts it's a much more severe problem.
HANNAFORD-AGORI've seen some courts as high as 50 percent.
REHMAnd once the jury selection process begins, Andrew Ferguson, once people are in the courthouse, how does that work?
FERGUSONWell, as you know, Diane, the jurors have to be selected in groups of usually about 60 for a jury of 12. They go in for voir dire where the lawyers and the judges get to determine whether or not they sit. But a lot of the problem of jury duty is people not even showing up for that larger pool. So once they get there, the process works, as it has worked, you know, honestly since the founding. But before that, we're really having a struggle of getting people in.
FERGUSONAnd Paula's right. Some of it is that court's aren't updating their source list. Some of it is people aren't taking their civic responsibility seriously. And I think we see it as a larger problem and this is the day before an election, right? And we know tomorrow people will be voting and not everyone will be voting. In fact, the numbers there will be very low. And this is a mandatory duty and we see equally poor civic connections, civic engagement in our system.
REHMJudge Wright, you must be very frustrated to see what's happening to the jury system.
WRIGHTIt is frustrating to a degree, but what we're trying to do is find solutions instead of being frustrated. Both of the speakers are correct in terms of the biggest problem are the people who can't show up or don't show up. There are various reasons. Our numbers are that for this calendar year, we've summoned approximately 131,000 jurors and we've had 86,000 that we've expected to attend the court.
WRIGHTBut however, as you've talked about, only 22,000 percent actually come in the door so that's creating a problem for the courts in terms of getting cases to trial.
REHMSo you must hear all kinds of excuses from people once they get in the door. People say there are surefire excuses as to how to get out of jury duty. You must hear all sorts of things.
WRIGHTWe do hear a lot of excuses, but one, I think, is really meritorious is the financial compensation that jurors gets. We don't pay very much for people to come to jury duty. The average for superior court is $30 plus transportation cost per day. And since we do a one day, one trial system, if you're not selected, if you only serve that first day, you don’t even get paid for that one day. All you get is transportation.
WRIGHTAnd so it's a burden, financial burden, for many jurors, particularly in longer cases, to come to court and have to sit for two weeks and not get paid. A lot of people who work for the government receive their money, but people who are in private industry, let's say you make $25,000 a year. If your employer doesn't compensate you for jury service, then all you get is that $30 a day. And if you're on a two week trial, that's a significant pay cut that we're expecting of citizens.
REHMSo but if you're on one trial, one day, how likely is it that you might be selected for a two or three week trial?
WRIGHTIt's not a high likelihood, but the way this works is we're one of the few jurisdictions in the country that do this one day, one trial. So you come down and you're obligated to be there for a day. You're supposed to reserve three days from your job in case you get picked on a jury. But, of course, there are a number of trials that last much longer than that and so the odds of getting picked on a two week or longer trial are not higher unless you're the one that's selected.
REHMYeah. And if you are selected, would you be in favor of paying jurors more? What would be the thing, the one thing, that you feel would help this situation?
WRIGHTI think jurors would be much more likely and comfortable with serving if they don't have to lose income, whether it's paid by the government, whether it's paid by their employer. In Arizona, there is a, for lack of a better term, a pool of money that is paid to jurors who don't receive government funds or private industry. But we need to be creative in terms of making sure the citizen doesn't lose money because they're doing their civic duty.
REHMAt the same time, you've just used those two words, civic duty. So should our civic duty be dependent upon being paid for doing our duty, Andrew Ferguson?
FERGUSONYou know, I think the financial realities are unquestionable and I wish there was a simple answer for that. But I think the problem is, going to your real question of duty, that we don’t conceive of jury duty in the right way as a society anymore. We've sort of forgotten its connection to our constitutional identity, our political identity. We think of it as a task we go do and we're done with when it's over instead of thinking about it as part of our political rights.
FERGUSONIn the time of the founding, it was as important as a right to vote, the right to serve on a jury. And you can see it through the history of America from the founding to the civil rights movement to women's suffrage movement, a connection between jury duty and this political participation, this idea of your identity of who you are as an American. We've forgotten that.
REHMI mean, there was a time when blacks were not permitted to serve, when women were not permitted to serve. There was a time in our history when only white males were permitted to serve. So it does sort of seem as though it's a privilege as well as a right.
FERGUSONAnd we've forgotten that history. If we went down to a local court right now and took a poll of how many people knew that people had literally fought and maybe even died for the right for you to sit here, I think we'd get an answer saying, I don't want to be here. Forgetting this history, forgetting this idea that part of the civil rights movement, the NAACP legal defense funds beginning to -- Brown v. Board of Education began with juries, Began with trying to get jury participation equal for all races.
FERGUSONAnd the reason why, 'cause it meant equality for all of us. I think we've forgotten that history, we've forgotten that connection.
REHMDo you agree, Judge Wright?
WRIGHTI do agree. And I think once you've had the experience, you have a different viewpoint. Most of the jurors that I talk to at the end of trials, primarily in civil trials, not so much in criminal because of some constitutional issues, but they are happy, excited, proud to have served. And those experiences are something that we need to get out into the public to let them know -- most people think or are afraid to even come to the courthouse because they don't know what to expect.
WRIGHTWhen I was in high school, we had a civics course, which talked about these kinds of things. I think -- I don't know what the school system teaches about this, but I don't think we have done enough to make the public aware of what this is.
REHMJudge Melvin Wright, he's associate judge for the superior court of the District of Columbia. He's presiding judge of the civil division and chair of the jury committee. Short break here and we'll be taking your calls when we come back.
REHMAnd in this hour we're talking about jury duty, the fact that so few people respond to a summons. Here in the District of Columbia that figure is about 22 percent, but that figure is pretty much the same across the country. Here in the studio with me Judge Melvin Wright. He's associate judge for the Superior Court of the District of Columbia. Andrew Ferguson is associate professor at the University of the District of Columbia School of Law.
REHMHe's the author of "Why Jury Duty Matters: A Citizen's Guide to Constitutional Action." On the line with us from WHRO, in Williamsburg, Va., Paula Hannaford-Agor, director of the Center for Jury Studies at the National Center for State Courts. And now joining us, John Gastil. He's head of communication, arts and sciences at Penn State University.
REHMHe's co-author of "The Jury and Democracy: How Jury's Deliberation Promotes Civic Engagement and Political Participation." John Gastil talk about the research you've done on the length between jury duty and civic engagement.
MR. JOHN GASTILWhat we found is that serving on juries actually has a powerful civic educational effect. This is something Alexis de Tocqueville speculated about a long time ago. And we found with hard data that you can actually see increases in the voting rates of jurors, looking just at those who get in the jury box by comparing the ones who ultimately get a chance to deliberate from those who don't because they're designated as alternates, there's a mistrial, or any number of reasons. So it really shows that the opportunity to serve on a jury is actually a civic educational opportunity. It can be inspiring for a lot of people.
REHMWell, what is it about the deliberating process that inspires that kind of increased sense of desire to be civically engaged?
GASTILYou know, it's funny that you put it exactly that way because that's what I thought it was, was that there was a psychological change that then results in future behavior. But we didn't actually find that in most cases. It really seemed to be almost kind of habit forming. That is we asked you as a citizen to sit in the seat of power, to be a juror and actually hold the power of government in your collective hand. And then when November rolls around or the next spring and you have a chance to vote, you may exercise that same power that was, in a way, reawakened -- especially for people who weren't previously regular voters.
GASTILIt got reawakened by sitting in the jury room where you have a much more direct sense that you are part of self-government, you are the government in that moment. And maybe that resonates with people in a deeper way that doesn't necessarily change their psychological sense of who they are, but actually changes their behavior pattern.
REHMAnd Andrew Ferguson, you go so far as to say that jury duty makes people better citizens.
FERGUSONAnd I think John has proved that. I mean he has shown that -- him and his research team have shown that people are more active as citizens once they've served. And to me what that shows is that jury duty and the jury process is this education moments -- educative moment, where you learn the skills of democracy. That's Alexis de Tocqueville's original insight of how the jury was part of -- was a political institution. And you can see it if you talk to jurors who have gone through and served.
FERGUSONYou can see sort of a transformative experience of who they've taken these difficult problems, you know. The hard cases are the ones that go to a jury trial. The easy ones settle out or get pled out. The hard ones that you need citizens to step up into a position of power and decide the hard cases are the ones that go before a jury. And you can watch a transformation happen. I wrote this book, "Why Jury Duty Matters," because I saw it. Every day I'd walk in to D.C. Superior Court and I'd see the same grumpy faces in the jury room, that anxiousness, that uncertainty, that dread.
FERGUSONAnd then we'd get to talk to them afterwards. And we'd see how they had had this experience that they wanted to share. And they wanted to be able to explain to people. And I realize that there wasn't a positive voice about juries in America. And we needed to create one and we still need to create one.
REHMAnd Judge Wright, you've seen the same thing when you've talked to juries.
WRIGHTI have. And I think one of the things that Mr. Gastil stated was government by the people, for the people and of the people. When you actually experience those things it's different. It's an awakening. To hear those words don't mean very much until you actually put them into effect.
REHMYou know, when I was called to jury duty after I moved from 20 years in Maryland, back in to the District of Columbia, just being down there, watching how the selection process moved, watching the orderly way in which we were all moved from room to room and then finally into that courtroom itself, and up to that selection point, I was most impressed with the process. And found myself wondering, you know, why even I had thought, oh, my gosh, I got jury duty. Oh, my gosh, what's going to happen? How long am I going to be there? But I felt differently after I left that jury room.
FERGUSONAnd that's exactly what we hopes happen. And part of what I think we need to do is change the expectations beforehand. I mean, if you think about it, if you are a citizen who has maybe gotten a civics course in high school, you know that a jury exists, but you don't really know why or why you've been called for. You haven't been trained, you haven't got any special class on how to serve as a jury. So you get a piece of paper in the mail and you feel disempowered in some ways. Right?
FERGUSONAnd it's only by going through the system and going through the process that you get to re-capture that power. And that's sort of what John Gastil and his team have found out.
REHMAnd, Paula, what about the actual time in the courtroom? How has these jurors experience changed over time?
HANNAFORD-AGORWell, I think your experience actually speaks to that, of being very nervous and anxious going in, what's going to happen, how long is it going to take. My predecessor at the National Center used to say everybody loves jury service, but not this week. So it was, you know, there's a lot of that to it, but once people get in and things start being explained, there's an orientation in the morning. You come up, the judge introduces who the people are, what the case is. And people actually get, you know, quite engaged in the process.
HANNAFORD-AGORIt's actually much more interesting than any television dramas. But part of the challenge for a lot of courts is making sure that all or at least the -- a substantial majority of the jurors who do appear for service, actually make it to that very meaningful participation as the jury selection and hopefully to be empanelled as a juror.
REHMAnd Judge Wright, what about all the legalisms that tend to be used in the courtroom? Are you, as a judge, trying to help attorneys to diminish that kind of language?
WRIGHTMost judges want jurors to be able to understand what's going on. And one of the things that you want to be able to do is you don't want to talk down to the jurors. You want to speak the language of common sense, a plain language. We go to law school to learn certain terms, but those terms don't mean anything if a juror doesn't understand what you're saying. You might as well be speaking another language. And so what judges and lawyers I think both agree, that if a juror doesn't understand what you're saying, they're not going to get -- you're not going to get the kind result that you want.
REHMWhat about the introduction of social media into the courtroom Judge Wright?
WRIGHTThat is a huge issue for all courts throughout the country. We traditionally tell jurors not to read newspapers, not to look at television and to avoid having anything to do with the trial, but with social media people can Google at any time about anything. And we are -- in conjunction with the state courts, we've had posters that we're going to put up that talk about what you should do, that you shouldn't be doing these kinds of things. And all the judges instruct them. But the temptation is hard.
REHMAnd how can you avoid it? I mean, it's so widespread. John Gastil, what do you think?
GASTILWell, you can't really avoid it in general, but you can absolutely keep it out of the courtroom. The greater challenge for the court of course is tracking jurors through their social media. And I don't think we can get to that point.
REHMAnd do you agree, Paula? I mean, how can courts keep that out of the courtroom?
HANNAFORD-AGORWell, I'm not convinced that courts can do it 100 percent of the time with 100 percent of the jurors. I think this is actually the biggest challenge that courts have right now. But, again, it's -- part of it is the education of why jurors should not be going online and getting information on their own? And so a lot of judges are actually starting in their instructions to the jurors of explaining the rationale for this, you know, why wouldn't you want to use this wonderful tool called the internet and social media?
HANNAFORD-AGORAnd so explaining the underlying rationale that it's unfair to the litigants because the whole idea of a trial is that you are listening to the evidence that's presented to you and not doing individual research. And it's unfair to your fellow jurors.
GASTILBut I don't want to us to get too carried away. What we're focused on right now is the use of social media during a trial. Obviously, you shouldn't be Googling the case and so on. And yes, posters and information, in some sense it's not necessarily different from -- prior to social media when jurors could do these things. It just took more effort, basically. Now it's too easy. But I don't want us to lose sight of is the power of social media after the trial.
GASTILJurors talk about their jury experience to many people. We have this in our surveys. It's a huge percentage of jurors that will talk about their trial in detail. And that's perfectly fine. They're allowed to talk about that. In fact, when I talk about our research at senior centers, people will tell me the minute details of a jury trial they served on decades ago. It can be -- it's not always the most important trial and the most important case. But it is incredibly memorable for most people who serve on juries, and we need to spread the conversations about what it's actually like to be a juror.
GASTILSo all I'm saying is let's appreciate that social media actually helps solves this problem we've been talking, that the public doesn't really know what a jury trial is. Well, it's actually going to help.
FERGUSONI completely agree, as someone who writes about juries, I am constantly stopped at cocktail parties or soccer games or wherever I am, with people telling me their stories of their jury experience because people want to share. And one of the strange things is during the whole process, they're not allowed to share. Right? So they have lived through an incredibly meaningful experience. An experience where they have had to decide whether someone goes to jail for the rest of their lives or a company goes bankrupt.
FERGUSONAnd they can't share that information? Then the jurors dissipate. They go back in their communities. And you have this experience that you just want to share with someone. And when someone like John or I come, they tell. And it's a wonderful, wonderful experience.
REHMAnd you're listening to "The Diane Rehm Show." Before we open the phones, Paula, I want to ask you what do we still need to do to improve the juror experience?
HANNAFORD-AGORI think from the court side there has to be better management of the jurors. I think a lot of courts in this country -- the reason why jurors don't have a good experience is that courts are just summoning too many people for the number of trials. And bringing in jurors and they sit in the assembly room and trials don't go forward. And so part of it is matching up the supply and demand, the number of jurors with the number of trials that are actually taking place.
REHMWhat about a paying jurors?
HANNAFORD-AGORWell, Judge Wright mentioned earlier the Arizona Lengthy Trial Fund.
HANNAFORD-AGORThat is certainly one that's a program that pays jurors lost income up to $300 a day. And that -- we actually just looked at some of these data and what that does in terms of the percentage of jurors that can serve on much longer trials has been amazing in that state. There's -- Oklahoma I think and at least one other state have enacted legislation for a lengthy trial fund, but they haven't actually put in place the mechanics to fund it. But I think that's certainly a viable option for most states to pursue.
REHMAll right. I'm going to open the phones. Let's hear from our listeners. First to Sean, in Jacksonville, Fla. Hi, you're on the air.
SEANHey, Diane. Love the show.
SEANAbsolutely love the show. Quick comment followed up by a question.
SEANI just want to say that as a teenager I had an opportunity to do something called Teen Court. It very positively affected my views of jury duty. I would love the opportunity, should I be called upon, to serve. I just want to add that. I know we've been talking about getting people on board with jury duty. My question though is, as a small business owner, my absence from my business if I should have to do something like that would be absolutely catastrophic to my business. And what happens in that instance? And I'll take my answer off the air. Thanks.
WRIGHTWell, that's one of the issues we're trying to address, the National Center for State Courts, and in our own court. Because we understand that it affects small businesses in a greater proportion than others. That's one of the reasons we've been looking throughout the country to find out what else works. We need to be creative about how we approach this problem. And so the -- there is merit to what that person has said because a small business suffers, the juror suffers, and the question is how can we eliminate both parties from having this dilemma that they're faced with?
REHMAndrew, what do you say to that?
FERGUSONYou know, I also think you need to realize what it would be like to have a jury without small business owners on the jury. I mean, many of those cases, contract cases, tort cases are about small businesses. And it would be really necessary to have people who have that experience there. And so I completely understand the financial sacrifice. I understand that realty. But we need those people to recognize that they have an important role to come forward. And this caller seems like he understands it. He gets it.
REHMYes, exactly. Paula?
HANNAFORD-AGORWell, a lot of the courts are doing what D.C. has already done with One Day One Trial. Most people can figure out a way to free up their schedule for one day. And in most courts across the country -- at least in state courts, trials are relatively brief affairs. Usually one to three days, typically. And so, you know, it -- courts are doing a lot of things to try and make jury service more convenient, more accommodating for small business owners, for stay-at-home parents, for people with busy lives -- because we all have busy lives.
HANNAFORD-AGORBut either defer to a date -- if you can't come in that date, great, you know, give us a time when you can come in sometime in the next six months. And when you come in we're going to minimize the burden on your to the greatest extent possible.
REHMSo, Judge Wright, if say a small business owner got picked somehow for a trial that was going to last not one day, but say three weeks, what is the attorney's -- what is the judge's reaction to that plea, you know, I'm going to lose my business if I have to stay here three weeks?
WRIGHTWell, judges have great discretion in terms of who actually gets on the jury. So we would talk to those jurors before the selection actually occurs. And if it's a matter of going to another date, we can do that. So there are other options that we can do.
REHMJudge Melvin Wright, associate judge for the Superior Court of the District of Columbia. Short break. Right back.
REHMAnd welcome back as we talk about the jury system across the country. Andrew Ferguson, during the break you were saying there are places where the jury system not only works but prevails.
FERGUSONWell, there are places where the jury yields are wonderfully positive. Tom Shields out near Columbus, Ohio has something like an 86 percent rate of people showing up. And what he does, and there have been wonderful news stories about him, is he opens the -- brews fresh coffee for them. He has James Taylor playing and he talks about what I'm trying to do is deal with that uncertainty and that fear that many people have of why am I coming to court to do something I'm not trained to do.
FERGUSONAnd he tries to give -- he shows them how the jury wheel was created, which is now kind of a computer algorithm, and he tries to make them feel that this is their system and their courts. And as a response they want to come back the next time. They tell their family and friends, I had a great experience on jury service. When do you hear that? You know, if that was the goal, if we had a customer service mentality to say, you know, we all know, at least in D.C., you're going to be summoned almost every two years. It's an iterative process so we should be encouraging and creating people who want to come back in two years. And he's doing that.
REHMWe've had an email from Elliott in Raleigh, N.C. and apparently a number of other people as well, who says, "There have been times in my life when it would be very inconvenient to serve as a juror and other times when the inconvenience would be relatively minor. Is there some way we could invite citizens to volunteer for service during those convenient times," John Gastil?
GASTILYeah, I guess I have a very different view of the jury summons and the response rate to the jury summons than most of the other guests. I -- perhaps just a little more optimistic. In a way it is the invitation. It is the invitation and yeah, I realize it's a duty and yes, judges who want to -- can punish those who don't respond to it, but the caller or the email -- Elliott from Raleigh, N.C. had a good point. You know, there's going to be a time when I can do it and a time when I can't.
GASTILThe courts are very flexible. And if you explain to them why you can't do it, usually that will be sufficient. But many people just decline to return the card figuring, I'd rather not be asked. And then when the opportunity is better for them, hopefully they're called. They may not be. But if they're called, they will serve. And so what you wind up with are a lot of people at the courthouse who are interested in serving, a lot of people who aren't, but a lot of people coming out feeling very positive about the experience. Because in a sense, it wasn't forced on them.
GASTILI realize that's a little bit at odd with the word duty in jury duty but I think we have to be realistic. It is an invitation to serve and yes, the courts can compel you. So live with the paradox.
REHMAre there any fines, Judge Wright, prevailing here in the District of Columbia or Andrew Ferguson, elsewhere?
WRIGHTWell, we do have fines but we're not trying to use them. What we're trying to do is to get people to voluntarily come in. And in our system if we send you a notice and the date that we've selected is not good for you, we give you a window of up to four months to pick, at your choice, a new date to come in. And so we're not looking to be punitive. What we're trying to do is to realize that when we send a date to you, we didn't check with you first. And so there may be a conflict. And so we're willing to work with you.
REHMBut what about the 80 percent who don't show up here in the District of Columbia at least, Andrew Ferguson? Should there be some kind of retribution for not doing one's civic duty?
FERGUSONWell, I mean, courts have developed in Philadelphia, they've just started a scofflaw court where they will haul people who don't show up into court and be in front of a judge and face contempt sanctions and fines. That's sort of the stick. There are also carrots out there where you can work on education and try to convince them that it's their duty to come and it's important for them to come. And you can imagine that if you use the stick too much, you're not going to create great jurors, right. If you had to be hauled in front of a judge and yelled at, you're not going to be terribly sympathetic to whoever has a problem that you're not asked to respond to. So I think it's important but it has probably a limited utility.
HANNAFORD-AGORYeah well, I think most of the courts, sort of the first one is just as a reminder. If somebody fails to appear for service, most courts have some type of a follow-up program where they're actually contacting them and saying, hey, we expected you to show up on this particular day. You weren't there. We really need you. Here's your new date. And this is what will happen to you, either the scofflaw court or the fine or any of the other penalties if you don't show and call us.
HANNAFORD-AGORBut one of the things that I think for a lot of courts that experience very high failure-to-appear rates is that they haven't been doing that. And so it only take so long with people, you know, sort of saying, well, you know, the last time I didn't show up because it was a really bad time for me, and nothing happened. And so I guess they didn't notice or they really don't care. And so part of this is the responsibility of the court of saying, yes, we care.
REHMIndeed. All right. Let's go to Chip in San Antonio, Texas. Hi, you're on the air.
CHIPHi. Thank you for taking my call.
CHIPI've really enjoyed -- I've been -- I'm 52 years old, I've been called for jury duty four times. I've been selected for juries three of those four times. And I've kind of really enjoyed the joke that the State of Texas is actually wanting me to conduct the necessary business. But I had to say I've enjoyed the experience. I appreciate the civic duty aspect of it. And I'm sorry, I don't think that you can make this a valet parking experience. I mean, you kind of have to not think of this as a spa day. You think of this as going and standing up and doing your job to support the jokes that you'll make about what you had to do for the rest of your life. Anyway, thank you. Have a good...
REHMAll right. Thanks for calling. Andrew.
FERGUSONI think it's, you know, not -- maybe it's not a spa day but it's an education day.
FERGUSONYou know, it's a day to connect to your constitutional duty, to understand that this is the one thing that we ask of you to do. I mean, think about it, you don't actually have to vote, although tomorrow you really should vote. You don't have to make enough money to pay taxes but if you're called as a juror, you have to show up. And it's your one chance to sort of get the power that the founders built within the system to be a part of our judiciary.
REHMThere have been some changes made, I gather, Judge Wright, including allowing jurors to ask questions?
WRIGHTYes. Traditionally jurors were not permitted to ask questions or even take notes during a trial. And what we found is that in the longer trials, it's hard to remember a lot of the evidence...
WRIGHT...especially when you have very complicated issues. And so I think there is a movement clearly in our court, and probably across the country, to not only permit jurors to take notes, and I think almost every judge in our court does, and in a larger number of those to actually ask questions. And there's a procedure that we use to screen questions that are asked by the jury.
REHMHow do you do that?
WRIGHTAt the end of the examination of the witness, the judge will turn to the jury and ask whether or not they have questions. If they do have questions, they write that question down. That question is then given to the judge and the judge reviews the questions with the lawyers and -- to determine whether or not the question should be asked.
REHMNow, can the -- one or both of the lawyers veto allowing the question to be asked?
WRIGHTThey can object just like they would when the opposing lawyer asks questions.
REHMAnd that can be sustained or overruled.
REHMOkay. I like that. I like the fact that jurors can ask questions. Let's go to Peter in Westport, Conn. Hi there, you're on the air.
PETERHi there. My question was just answered but I've been called to jury duty several times. Each time I've gotten there, they've interviewed me. I said I was an airline pilot and could I ask questions? And I was -- that was it, it's all over. You're dismissed.
REHMThat's interesting. He's saying that because he wanted to ask questions he was dismissed. So one would assume that either the lawyers or the judges did not want questions in that court from the jurors.
WRIGHTWell, it's not required.
WRIGHTA judge has discretion to permit a juror to ask questions. Obviously I wasn't there. There may have been other reasons why he was dismissed. But in our jurisdiction a juror would not be dismissed just because they ask for the ability to ask for a question.
REHMAll right. And to Jane in Dallas, Texas, here's an interesting question. go right ahead, Jane
JANEGood morning to everyone. Thank you for this wonderful talk. I think it's so important. My situation is that I am blind and I've been called to jury duty three -- three times. Twice I was rejected because I was not able to -- well, the first time was I couldn't read or write print. And then the second time was because I couldn't see the video evidence that was going to be shown, which was an interesting cases. It was a drunk driving case and I had been a drug and alcohol counselor for six years. So I thought that was hysterically funny.
JANEThe one time I was accepted on a jury the gentleman pled guilty to possession of drugs and so our job was basically to determine his sentence. And so I was finally allowed to serve on that jury. And it was a huge deal that I was -- and a lot of discussion in the courthouse about this blind woman wanting to serve on a jury. And I just wonder how many other people there are out there like me who, you know, are very civic minded. When I turned 18 the first thing I did the second I got out of school is register to vote -- who would really love to serve on a jury and haven't been allowed access.
REHMInteresting. John Gastil.
GASTILI am so glad that you called, Jane, because I think you've shifted the conversation. We started by talking more about sort of our anxieties about people maybe not responding to a summons, not recognizing this important constitutional duty. And now you've shifted the ground to what I think is the more important question, which is, is jury duty a viable opportunity for everyone? Now, we're not going to invite everyone in every day. Obviously that's why we do the summons.
GASTILBut in your case, you're someone who responds to the summons, shows up, wants to serve and there could be barriers to your serving. In your case, as you point out, they're relatively obvious. They're concerned about whether they can accommodate the disability. And in some cases didn't feel they could and denied you that opportunity to serve. In other cases, as we've been talking about with people who maybe are particularly low income and can't afford to lose the income for the day, we need to think about how to accommodate that.
GASTILAnd all of these jury reforms that focus on both the summons and the voir dire process should be concerned about discrimination. And so are we really fully inclusive in this process, giving everyone who is able, and yes, to a degree willing to serve, are we really giving them the opportunity to do so? Or are we -- in some cases, we historically used to boot people during voir dire just because of some of their demographic characteristics. And that's, I think, the greater issue.
GASTILSo I'm so glad that Jane called. And I'm glad, Jane, you actually did get to serve on a jury because it really is such a powerful civic educational opportunity that denying it to a person, let alone a class of persons, actually creates an inequality in the civic education that is the basis for political participation.
REHMDo you want to add to that, Andrew?
FERGUSONThere's nothing to add. That was wonderful. I mean, that's exactly the right way to think about it.
REHMAnd you're listening to "The Diane Rehm Show." Let's now go to Amanda who's in Pittsburgh, Penn. Hi, Amanda, you're on the air.
AMANDAHi. Thank you for taking my call.
AMANDAI love your show.
AMANDAMy question is regarding the participation of young people, 20 somethings like myself. Something that I particularly had trouble with, I know a couple of my friends have also had trouble with. We tend to move around a lot. We don't stay put for very long. I've had trouble with the system keeping up with me. The one time I was selected for jury duty, I was not -- I've always been -- thought it'd be an enjoyable experience. I was not able to do it because I didn't -- I no longer lived wherever my DMV records or my voter registration records said I did.
AMANDAAnd, I mean, I'm going to move in two years. I've moved since then. I mean, how is the source material going to keep up with this trend of people moving around?
REHMThat's a good question, Andrew.
FERGUSONI mean, I think you nailed one of the problems about why courts have had a hard time creating and getting better yields is that the data that the court's relying on in terms of the source lists are dated. You know, this is a world where big data companies are tracking us everywhere we go. If you've moved recently you know you'll get something in the mail almost immediately, where some company has found out that you've moved quite quickly. And those same source lists are not being updated at the same level or the same rate in jurisdictions because it costs money and because it's hard.
FERGUSONYou know, think about the bureaucratic lists that you would get from the DMV. It's hard to cleanse those of data. It's hard to get new data. And the idea of updating is a real problem for, as the caller said, young people who are moving in and out of family, school and the rest.
REHMAnd here's an email from Fred in Michigan. "Do judges serve on juries in proportion to their numbers in the population? If not, do they serve more or less and how much?"
WRIGHTIn the District of Colombia, judges must serve. I've been called every year for almost -- every two years. And I've been called to serve and...
REHMHave you served?
WRIGHTI have not actually served on a jury because I have not been selected by the lawyers. Generally what happens is during jury selection lawyers have the opportunity to strike -- what we call strike or eliminate a person from the jury. And since most attorneys know who the judges are in the jurisdiction, they, I assume, feel uncomfortable with having a judge on. Although that's -- I have had some colleagues who've actually served on juries.
REHMYou know, it's interesting because they do refer to individual candidates for juries by number and not by name. So that obviously they know who you are here in the district. But if you were serving perhaps elsewhere, you'd have an opportunity. What a shame though. It would seem to me that each judge would be in a really good place to evaluate evidence.
WRIGHTI would love the opportunity. And maybe in the future that will come.
REHMInteresting. Thank you all so much. Judge Melvin Wright of the Superior Court of Washington, D.C. Andrew Ferguson, he's at the University of the District of Columbia School of Law. He's the author of "Why Jury Duty Matters: A Citizens Guide to Constitutional Action." Paula Hannaford-Agor is director of the Center for Jury Studies at the National Center for State Courts. And John Gastil, head of Communication Arts and Sciences at Penn State University, co-author of "The Jury and Democracy." Thank you all so much. And thanks for listening. I'm Diane Rehm.
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