THENEEDFORA MOREDIVERSEJURY

It is with much humility and gratitude that I write my first “Opening Statement” column as the 90th President of the Berks County Bar Association. During the Annual Meeting in October, I shared my vision for the upcoming year. In case you missed my remarks, the text of my speech was printed in the Winter 2023 Issue.

While I’m working with my colleagues on the Board of Directors and Bar Association staff on a number of initiatives, including reforming our Lawyer Referral Service, reviewing of the association’s bylaws, and expanding community outreach, I want to focus this Opening Statement on our main theme for 2023: Jury Diversity Awareness.

Berks County is a melting pot where 31.3% of residents are racially diverse. And 96.4% of those residents are United States Citizens. This statistic is relevant when it comes to jury duty, as only U.S. citizens may serve on a jury. The numbers are surprising when considering the lack of diversity in our jury boxes. Have you had a jury composed of 30% racially diverse members? I almost want to bet that we often cannot find a pool of 30% diverse potential jurors. But why is jury diversity an important topic?

Data shows that having a diverse jury is one of the most fair and effective ways to secure not only a just verdict but also to reflect the community. The Sixth Amendment provides a right to be judged by a jury of one’s peers. A jury of one’s peers serves as that community’s conscience.

Last year, when researching the reasons why we rarely encounter a diverse jury, I came across a law review article by the

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Hon. Juan Sanchez, Chief Judge of the U.S. District Court for the Eastern District of Pennsylvania. Sanchez is the first Latino to serve as Chief Judge of the Eastern District. The article can be found on the Temple Law Review website at https://tinyurl. com/4zaapuun.

The article provides examples of empirical evidence that increased jury diversity affects deliberations and trial outcomes. The studies consistently show that diversity has a positive impact on deliberation and (1) leads to fewer errors; (2) engages more thorough deliberations; and (3) eliminates bias and prejudices during deliberation process. Another study cited by Chief Judge Sanchez found that diverse juries “deliberated longer and considered a wider range of information than racially non-diverse juries.” As one study showed, racial diversity is an ingredient for superior performance.

One may ask for a specific example of how a diverse jury may impact the outcome of a case. According to Chief Judge Sanchez, a jury’s perspective on the credibility of a witness may hinge upon their own cultural experiences. For example, many individuals from Latino and Asian cultures avoid eye contact to show respect and deference, whereas in Western culture, avoiding eye contact is often viewed as a sign of dishonesty and deception. If a jury lacks diversity, there is an increased chance that jurors may misinterpret critical cultural cues when some witnesses are testifying. Often, these cultural miscommunications sway the outcome of the case and, sometimes, forever change the lives of a defendant and their family members.

I recall early in my career explaining that a Latino witness’s lack of eye contact was a sign of respect and not a sign that the witness may be lying. I have since, with the Administrative Offices of Pennsylvania Courts (AOPC), created a seminar for judges on Cultural Competency and discussed this very example of lack of eye contact in certain cultures.

Despite the importance of jury pool diversity, a lack of diversity continues to be a persistent problem. As explained in Chief Judge Sanchez’s article, the reasons for lack of diversity fall into two categories: process-related barriers and juror-centric barriers.

Some examples of process-related barriers include the court’s jury selection policy or lack of policy, the use of voter registration polls to populate a jury pool, and the prohibition on jury service by individuals with certain felony convictions.

A significant concern of mine, and where most of my focus will be this year, concerns juror-centric barriers. The juror-centric barriers include individual attitudes towards jury duty in addition to the economic hardship that jury duty may cause. Potential jurors may choose not to return their jury service questionnaires, fail to report to jury selection because they cannot afford to take time away from work, and decline to be part of a justice system they perceive as unfair.

To address these obstacles and to ensure that the jury reflects the community that it serves, Chief Judge Sanchez created a jury diversity subcommittee. The Hon. Jeffrey L. Schmehl, U.S. District Court Judge of the Eastern District of Pennsylvania and former President Judge of the Court of Common Pleas of Berks County, is part of the Eastern District's subcommittee striving to increase jury diversity. The four-part jury plan for the Eastern District of Pennsylvania is as follows: (1) add more names from the source list (i.e., the voter registration list) to the master wheel. A larger and more inclusive master wheel represents various characteristics of the community, allowing for greater representation; (2) increase the frequency with which the court conducts change of address checks to remove those who have passed away, changed addresses, or moved out of the district; (3) send a juror qualification questionnaire to a random different address in the same zip code, if the original questionnaire is unreturned; and (4) develop and implement a strategic and vigorous community outreach and education program to educate potential jurors about the importance of jury duty and the value of civic engagement.

The Bar Association has begun the work to overcome these juror-centric barriers. We are publishing an educational advertisement and contributing articles about the importance of jury diversity in predominantly Hispanic and Black news media outlets. We are working with partner organizations, both in the nonprofit and private sector, in educating and promoting active participation of minorities in jury duty. While this is a process that will certainly require more than a year to see any results, I am excited for what we are doing and what is coming up for the remainder of this year.

I am pleased that Chief Judge Sanchez and Judge Schmehl will be participating in our Bench-Bar Conference on April 19 at the DoubleTree Hotel in downtown Reading. The federal judges will present a panel discussion on the importance of jury diversity and what specifically the Eastern District of Pennsylvania is doing to address this topic.

In conclusion and as explained by Chief Judge Sanchez in his article “As the Supreme Court recognized then in Taylor v. Louisiana, and as is true today, jury diversity and inclusion strengthen our legal system and promote the fair administration of justice.” It is my hope that our Bar Association and its members can see the need to diversify our juries as an opportunity to strengthen our judicial system.