I hope most Americans don’t learn about the US Constitution, and its Amendments, the way I did. My crash course in understanding my rights as an American citizen began when I was indicted for the first time in July of 2019. For the next 30 months, I struggled to reconcile what I understood my rights to be and the oppressive machine that is America’s criminal justice system.

During pre-trial my attorneys put forth arguments about my right to free speech (1st Amendment), my right to privacy (4th Amendment), and my right to a trial by an impartial jury (6th Amendment).   All those arguments give rise to additional due process concerns (14th Amendment).

In order to protect my right to a trial by an impartial jury, my attorneys filed a Motion to Change Venue, or a request that the case be heard in another venue. According to the US Department of Justice, change of venue is warranted if it is in the “interest of justice” as long as the move does not unduly inconvenience witnesses who will be called to testify.  In our request to change venue, my attornys argued that, if the trial were held in Puerto Rico, it would be exceedingly difficult, if not impossible, to ensure my right to trial by an impartial jury.

Common Concern
Concerns about the ability to seat an impartial jury are common in criminal and civil cases.  Ensuring juror impartiality is even more difficult in high profile cases.

Earlier this month, concerns about seating an impartial jury affected the high profile case of the State of New York v. the Trump Corporation. The New York Times reported both prosecution and the defense struggled to find jurors that did not have disqualifying opinions about Mr. Trump. Reasons for juror disqualification include personal history with any of the parties, personal knowledge relevant to the matter, and personal opinions that engender bias. Albeit for different reasons, both the prosecution and the defense desire jurors capable of objectively evaluating facts presented at trial.

The central issue playing out in jury selection:  the public’s perception of, and feelings toward, Donald Trump. The Times reported that one juror said: “Mr. Trump has no morals. He thinks only of himself. I think he’s a criminal. I think he’s done irreparable damage to this country.” By the end of the first day of juror screening, the court determined more than half of the 130 potential jurors were unable to serve.  The only reason the court could identify and dismiss these jurors: they were honest about their ability to be objective.

Jury Trials Are Important
The Founding Fathers designed the jury trial to be fundamental to America’s system of checks and balances. Unfortunately, the “check” of a jury trial is not working as intended.  Today, many criminal cases never make it to trial. The trial process has been replaced by plea bargaining and negotiated punishments.  Jury trials are disappearing, and with it, according to the National Association of Criminal Defense Lawyers, Americans’ 6th Amendment protections.

Juries serve as a check on the power of government in several ways. First, they hold the power to convict.  Prosecutors can allege but they cannot render final determinations on citizens’ guilt or innocence. Second, juries engage in an independent assessment of the facts as presented by both sides. Jurors also conduct their own evaluation the parties’ actions in the context of individual rights and legal responsibilities. Finally, they determine if the government met its burden of proof. To convict, no juror can be left with a reasonable doubt.

Equally important to the jury’s role in protecting citizens’ from the unrestrained powers of government, juries also serve as the sole mechanism for ensuring prosecutorial accountability.  Because prosecutors have immunity, prosecutorial error is rarely addressed. Consequentially, there is no negative consequence for prosecutors who bring baseless cases or violate laws during investigations.  If not for juries, citizens would be subject to near tyranny at the hands of all powerful prosecutors. The pervasiveness of the problem is easily seen when data on claims of prosecutorial misconduct are aggregated.

The Duty of Serving on a Jury
Despite serving these critical functions, not all Americans agree that serving on a jury is part of being a good citizen. A Pew Research study found that only two-thirds of Americans feel jury duty is a civic responsibility.  The other one-third of respondents said there was little connection between jury duty and good citizenship.

For some Americans, the first question they ask when they receive a jury summons is “How can I get out of it?”.  The most common justifications for not engaging in jury duty: financial inconvenience, disability or medical condition, religious obligation, or caregiver responsibilities. The court often excuses jurors for these reasons. But these justifications do not always apply to every person.  In those instances, data suggest some are willing to lie to get out of jury duty.

Potential jurors go through an initial screening to “qualify” for jury duty.  Attorneys conduct voir dire with the qualified jurors. This process is intended to identify individuals who are unlikely to be able to decide the case fairly. According to expert Jeffery Frederick,  voir dire evaluations of jurors should focus on jurors’ backgrounds, experiences, opinions, beliefs, and values. These five elements define the mental framework through which the juror will interpret the case.

Not surprisingly, there is little agreement about what constitutes an “impartial jury”.  In addition to the five elements Frederick highlights, unconscious bias and privilege can also influence jurors objectivity. To further complicate matters, some experts assert  that inherent bias and the media’s ability to shape public opinion make it impossible to for people to really be objective.

Difficulties of Creating an Impartial Jury
The consequences of not seating an impartial jury are significant. First, they may lead to an erroneous conviction and send an innocent person to prison. Unfortunately, this happens all too often. The National Registry of Exonerations includes thousands of individuals who were convicted but later proven innocent.

Convicted defendants can appeal their convictions based on partiality of the jury but success rates are mixed.  In Washington state, a convicted defendant appealed his guilty verdict but the appeals court rejected his assertions. The Appeals Court found that the defendant was “not deprived of her right to an impartial jury even [though] the court’s failed to excuse a juror who may have known the testifying victim”.   Appeals based on allegations that jurors’ racial bias led to an unjustified guilty verdict have been more successful.  In 2016 the Supreme Court held that the trial court must protect defendants from juries that include individuals who rely on racial stereotypes or animus to convict a defendant.

Why Does it Matter
Strengthening America’s system of jury trials is one way to protect citizens, restrain the power of the prosecutor, and increase citizens confidence in America’s criminal justice system.

Ensuring Americans have a criminal justice system that they can believe in requires greater understanding of the importance of the jury system, the important roles jurors play and the dangers inherent in failing to safeguard citizens’ right to a trial by an impartial jury.