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Juror Pool Composition Post COVID-19 Katrina Cook, Ph.D.
In March of 2020, when the COVID 19 pandemic first began to take hold in the United States, it was hard to imagine the extent to which this disease would change the fabric of American life. Common cultural touchstones that many took for granted suddenly became fraught with danger. Something as simple as going out to eat at a restaurant was no longer an option in many places. And the legal system was no exception. Across the country, jury trials abruptly slammed to a halt, as it was no longer safe to have groups of people congregate indoors for long periods of time. It has been nearly a year since that initial phase of lockdowns in the United States. And with a backlog of trials that only swells as time passes, many jurisdictions are desperate for measures that would allow jury trials to proceed. Some jurisdictions have begun conducting jury trials via electronic means, using videoconferencing software like Zoom. But this is not feasible in all areas and has the potential to exclude certain demographics, including older jurors and those of lower socio-economic classes, who may be unfamiliar with or unable to afford the technology required to participate in a virtual trial. Other venues have begun conducting in-person jury trials with appropriate social distancing policies in place. However, in-person trials bring their own unique set of concerns and anxieties to address. With all these obstacles to normalcy in place, clients express valid concerns about what to expect as they return to trial: How is COVID-19 affecting the composition of jury pools? How concerned are jurors about appearing for jury service? Will high-
Litigation Insights
risk groups, such as the elderly, be more likely to be dismissed due to health concerns? Having conducted a national survey on these issues and after assisting with some of the first jury selections in the country since the start of the pandemic, Litigation Insights has some preliminary answers to these important questions. CONCERNS ABOUT COVID-19 One of the most discussed facets of the pandemic has been just how polarized the public’s response has been. Some individuals express little to no concern and have changed very little about their habits. Yet others say they are extremely worried and have cut off nearly all outside contact to mitigate the risk of the disease. In a May 2020 national survey conducted by Litigation Insights, 28% of potential jurors reported being very concerned about catching COVID-19, and another 36% indicated they were moderately concerned. However, 13% of jurors were not very concerned and 3% were not at all concerned. While these numbers show differing attitudes toward COVID-19 and have likely changed in recent months, it is clear that a significant number of jurors would potentially be concerned about the infection risks inherent in an in-person jury trial. Given the higher mortality risks for older individuals, one would expect concerns about COVID-19 complications to increase as juror age increases. Interestingly, in our survey, older individuals were significantly less concerned about complications from COVID-19, as compared to younger individuals. While lower anxiety around complications does not necessarily trans-
late into older jurors being willing to serve during a pandemic, it does raise questions as to whether older jurors will truly be less represented on jury pools going forward. Although in-person jury trials have not yet been conducted frequently enough to examine this trend adequately, two recent case studies offer insight into how jury pools may be composed going forward. CASE STUDIES REGARDING POSTCOVID JURY POOL COMPOSITION In-person jury trials have resumed to a limited extent in some jurisdictions. In two such recent trials in a major metropolitan county, a comparison of juror demographics before and after the judges granted hardship excusals demonstrate interesting findings concerning how dismissals for COVID-19 fears may affect jury composition. In one trial, the demographics of which are shown in the charts below, jurors were asked if they would like to be dismissed due to concerns regarding COVID-19. Of the 89 total jurors initially in the pool, 26 requested dismissal due to COVID concerns. Of those 26 jurors, three were in their 20s, six were in their 30s, four were in their 40s, four were in their 50s, two were in their 60s, six were in their 70s, and one was in their 90s. An additional nine jurors requested dismissal due to concerns unrelated to COVID. When examining the pre-hardship jury pool, it should be noted that the values for some age groups are somewhat different than would be found in the total population pool for the jurisdiction. For example, according to the U.S. Census, individuals in their 60s represent approximately 13% of the jurisdiction’s population; however, in the initial pool
