Deliberative Thoughts Part 2: The Fallacy of Common People in the Jury Box

Estimated Reading Time: 9 minutes

So while I have written one piece for the Providence Journal on my experience of grand jury duty, it was but one piece of my experience and there was much more to reflect upon.  So this if the first of a few reflective essays about that.  

The concept of jury duty is an interesting one and reminds me of libraries in some ways;  if they were not created in the past, would there actually be collective interest and ability to create them today? I have my doubts that it would and I have my doubts, after serving on the grand jury for 6 weeks, that it would or is the ideal mechanism for justice.  

A lego figure presented as a British judge with red eyes in pale skin and holding a gavel.
Image from Me2

At its essence, the jury is a collection of peers who help to determine whether a person is legally responsible for a crime or in the case of the grand jury, to stand trial as accused of a crime. They hear all the evidence presented (though not necessarily all the evidence) and then vote on whether the person should be convicted (or charged).  It feels so very democratic in its ethos and approach–rooted in the idea that justice can be rationalized and understood by a set of random citizens plucked out of their lives and thrown into the courtroom to use their everyday understanding to make sense of what is presented before them. 

It’s that idea that this collection of the “common” people can serve as objective views on the situation as opposed to those who are paid to arrest, try, and convict people as part of their daily practice–a job that inevitably embodies the hammer problem (when all you have is a hammer, all problems look like nails). Or maybe it’s that this collection of views is potentially subjective in enough ways that it creates some kind of balance. 

Yet, this idea of the “common” person for me is questionable in many ways.  One example is how easily the “common” person (myself included here) is fooled by misinformation and poor reasoning–individually and collectively.  We but need to look at the pandemic and all the different ways common understanding was missing and fear directed us in different directions to do things that were informed by misinformation/disinformation, misunderstanding, or outright rejection of facts. 

Now some might say, “That’s great! That’s diversity of thought and that’s what’s important about the jury pool is people from different walks of life.”  So first, we have to admit that we’re fully comfortable with putting people easily susceptible to misinformation and disinformation to judge the information being presented by lawyers.  Lawyers are professionally trained to spin tales and leverage some of the same tactics and practices that are used by the very folks creating misinformation and disinformation.  So we think if we cram enough folks into a room, they will be able to outsmart these tactics through…osmosis? 

It’s as if we’re depending on the law of averages to secure the possibility of justice but those averages are tipped in certain ways and I’m not sure are helpful.  Therefore,  the (not-so) random selection of the jury pool still doesn’t produce that much diversity of thought in general (more about that later). It does not really work in that it relies on (supposed) randomness to create that mixture, thus leaving to chance whether that pool of jurors is balanced with the diversity of thought. It very well could and does end up with a group that is wholly similar than different in thought.  

There’s another point that is worth noting about the pandemic that raises questions about using the “common” people for jury duty.  If the goal is to be the objective viewer (or a diversity of subject viewers) who is interested in justice and in many ways, there to protect the individual from the overwhelming mechanisms of the state, we should be concerned. Most of us quickly as possible pushed aside basic practices that substantially improved the risks to vulnerable populations (e.g. masks) in the name of convenience. That is, we were not willing to be uncomfortable even when it meant improving the risks to people we know and love.  If we are that callus with people we know and care about, what does it mean for strangers whom we don’t know, may have never met, and are presented to us in the court of law as potential criminals?  It’s a stacked deck.  

The diversity of thought within that jury pool is limited in some ways.  I’ll speak to the grand jury mainly here but many of the ideas are equally similar to trial juries.  The first element of similarity is a self-selection bias and those who cannot serve (previously incarcerated, disability, undocumented, etc).  Jurors fell into 3 categories.  They chose to serve.  They weren’t fully aware they could get out of it.  They weren’t in their attempts to get out of serving.  (In a future post, I’ll discuss the ways and things people told me about how to get out of jury duty.)  This means the pool already consists of a bias towards supporting or not reasonably capable of challenging the system.  In that way, the jury pool is filled with a bias toward believing in or supporting the system.  Yes, there are beneficial things about that but we also miss the observations, insights, and possible ways of seeing things that all those others who aren’t in this belief/support system might contribute to our understanding.   

Think about it like recommendation systems online on streaming services.  The first is that there is a large “profile” for all users of Netflix’s steaming platform (i.e. serving on a jury)–something they all have in common that many others don’t have:  they have strong enough internet access, they can afford the subscription, and they find the selection agreeable enough to justify the cost.  

When the recommendation system operates, it’s doing so based upon similarities within that pool of people; things that they have in common–besides the overarching items above. Netflix recommends the same movie to a bunch of “different” people, and somehow, it is successful across that swath; what is going on in that system? Then, it is able to see lots of different data points so that conventionally 23 different people (i.e. a grand jury pool) from different walks of life will all smash that thumbs-up button after watching a movie recommended by Netflix.  

Now, the Netflix algorithm makes cross connections about why those 23 people would be up for that movie; it often knows or anticipates certain similarities of mind that connect those folks from viewing history.  It could be that all 23 people decided to stop watching one film with Adam Sandler about 10 minutes in (an astute action, in my opinion) to start watching different films, but all those films featured Ewan McGregor. These are two unifying biases: dismiss Sandler, watch more McGregor.  None of the 23 people realize they have this in common but those biases are just part of the selection system.  

That’s a commonly held bias within this pool–it’s deep (as in hard to get to), it’s nuanced, and it’s not widely understood.  But Netflix’s recommendation system exploits it to keep folks intrigued and on the service. Eventually those successful recommendations make it up to a human at Netflix who orders up more Ewan McGregor films.  But what if there are people who watch both actors regularly and can articulate the value of both?  Or, what if they make a convincing case that we are in fact a little bit crazy if we keep starting to watch Adam Sandler films in the first place or that Adam Sandler and Ewan McGregor are actually the same person and so the switching to McGregor films is a moot point?  But those types of thinking can only be found by people who don’t subscribe to Netlfix?  

To flip it back to the jury pool, these types of biases likely exist about justice, our thoughts about lawyers, officers, suspects, etc.  They are largely hidden and harder to extract than the Netflix example but they still permeate that space and direct the work of the jury to lean in a particular direction. So when we gather that jury, there’s this assumption of diversity of thought but I wonder just how much variation there really is within the final pool because of the hoops and frameworks that put us in that room.  

So what, right?  It’s still a diverse pool of the people that show up; just maybe not as diverse as it could be.  But the jury structure is focused on the “jury of one’s peers” or a cross-section of the community and this feels like a significant gap, especially of the ones most critical and insightful about its shortcomings.  Could it be corrected if a larger swath of people were to be considered for that role?  Maybe.  I think we miss important insights from people who were incarcerated, people who are undocumented, and others prevented outright (or de facto) from serving and such inclusion might change that room.  But inside the room and its conforming complications is another post for another time.   

And also--after 250 years of juries in the US, is there not improvements or questions we should be asking about how we do this better?

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