Juror Attitudes in the Age of Coronavirus: Will Fear of Jury Duty Skew the Jury Pool?

Jury trials came to a screeching halt in mid-March and courts all over the country are grappling with how to resume them. Court administrators, judges and counsel have to factor in multiple considerations. They are looking at how to modify the logistics of holding jury trials and what seems like endless permutations of options for how to make that happen. One important factor in solving this puzzle is the human factor – in addition to courthouse staff, judges, counsel and witnesses, most courthouses would need to also accommodate dozens to hundreds of potential jurors every day. In the past, jurors would spend their jury service days packed into crowded jury assembly rooms, jury boxes or jury deliberation rooms with limited personal space. When, how and where will average citizens feel comfortable and safe appearing for jury duty and serving as a juror? And how will the courts’ adjustments, including modifications to jury selection procedures, impact jurors and juries?

Three often-discussed adjustments are: 1) requiring fewer jurors to appear on any one jury selection day and limiting the number of trials which will be scheduled to allow for social distancing; 2) assuming a larger proportion of jurors who have received a summons will not appear for their jury duty and therefore summoning more jurors for trials; and 3) granting more requests for postponement and/or excusing those who do appear but express high levels of concern about their safety if they are selected to serve as a juror on a trial. Some have speculated that any one, or a combination, of these factors could alter not only the composition of seated juries but also result in some case-relevant attitudes being over- or under-represented in seated juries. For example, some have speculated that juries seated in the middle of COVID-19 will result in the disproportionate dismissal of jurors holding generally pro-Plaintiff attitudes.

Two recent surveys conducted by DecisionQuest provide empirical support for these concerns. As part of a series of surveys assessing the impact of COVID-19 on potential jurors, DecisionQuest surveyed almost 2,000 jury-eligible adults in eight states (California, New York, Illinois, Florida, Pennsylvania, Texas, Minnesota and North Carolina) across two time periods.[1] Respondents completed several questions that assessed respondents’ demographics, COVID-19-related experiences and opinions, attitudes relevant to various areas of litigation, and their feelings about serving on a jury in the next several months. Our analyses indicate at least one of the strategies under consideration to seat juries during a pandemic – allowing postponement and excusing those concerned about their health if they served – are likely to disproportionally impact some types of jurors over others, resulting in skewed juries.

Overview

Overall, slightly more than half of the most recent (September/October)[2] respondents said they would postpone their jury service if called for jury duty between now and January, though this did vary by state.

Similarly, most respondents were not eager to serve on a jury any time soon. More than half of all participants were very uncomfortable with the idea of serving on a jury before January and, if asked to do so, would be notably concerned about their health and the financial impact of jury duty.

The Those more generally concerned about COVID-19 infection, and specifically about their health in a courtroom during COVID-19, were more likely to desire a postponement of their jury service than those less concerned about the same risks.

Note that that the willingness to serve or desire to postpone appeared more extreme in relation to the more specific and situationally relevant belief (e.g., I am concerned about infection if in a courtroom with many other people) than to the more global and situationally neutral belief (I am concerned about infection). Research shows situationally relevant beliefs are more predictive of actual behavior than general, global beliefs. However, both beliefs are significantly correlated with respondents’ interest in serving on a jury within the next few months. Further, potential jurors who are seriously concerned about either risk are more likely to request a postponement and/or express that concern during voir dire, resulting in a lower likelihood they would serve on a jury between now and January 2021.

Demographics

We looked at whether concerns about jury service and a desire to postpone jury duty were associated with any demographic variables.[3] It is important to note that, in most cases, there is no relationship between demographics and verdict preferences – evidence and case-relevant beliefs are much more reliable drivers of verdict than demographics. However, given the disproportionate way in which COVID-19 is impacting some demographics more than others, we wanted to see if that translated into corollary concerns about serving as a juror.

Those who were more likely to be concerned about their health in a courtroom during the pandemic and/or wanted to postpone their jury duty, ideally until January 2021 or later were:

• Older
• Women
• Not employed full time
• Politically liberal
• Supportive of government social programs
• Pro-immigration
• Lower socio-economic status
• Dealing with other health issues

Interestingly, those who had served on a jury in the past were generally less concerned about serving on a jury in the immediate future. Jury duty induces a certain level of anxiety in first-time jurors, for many reasons, and having gone through the process before eliminates one source of that anxiety. Additionally, one large-scale study found jurors who have served on a jury through deliberations had more trust in the jury system and courts after their jury duty,[4] particularly if they had a positive experience (as many jurors do). Both of these factors help explain why former jurors are more likely to be repeat jurors, even in the midst of a pandemic.

Litigation-Related Attitudes

We also looked at whether concern about completing jury duty, and when that jury duty might happen, was associated with attitudes relevant to different areas of litigation. Some have speculated that the desire to postpone jury service or extreme concern about serving could be correlated with pro-Plaintiff or pro-Defense attitudes.

It is important to note that, overall, the respondents were generally supportive of the government playing a large role in regulating industry; skeptical of large corporations, insurance companies, and pharmaceutical companies; concerned about the environment; wary of asbestos and talc products and supportive of lawsuits and the use of litigation as a protective or punitive measure against bad corporate actors. Any significant differences among groups of respondents are measured against this baseline.

Our results indicated that those more concerned about serving as a juror were more likely to hold pro-Plaintiff attitudes. Those who expressed more concern about serving on a jury, particularly within the next four months of data collection, were:

• More critical of large companies that break agreements
• More desirous of increased regulation of insurance companies, more critical of how insurance companies handle claims and more supportive of punishment for bad faith violations
• More critical of employers’ efforts to protect workers’ health and more likely to expect employees who complain about unsafe working conditions to experience retaliation
• More critical of employers’ efforts to fight discrimination and promote diversity, more likely to expect racial and gender discrimination and harassment and more likely to expect employees who complain about discrimination or harassment to experience retaliation
• More likely to want stricter environmental regulations and be concerned about man-made climate change
• More likely to believe long term exposure to asbestos or other toxic chemicals, at any level, is always dangerous
• Less likely to think the federal government is effective at protecting the public from unsafe medications
• Less favorable toward, and more desirous of more regulation of, large corporations
• More likely to think serious or life-threatening medical errors are rare but more opposed to limited damages in cases of medical malpractice and less likely to require intent of harm to hold a medical provider liable for malpractice
• More supportive of the use of punitive damages to enforce responsible corporate behavior and non-economic damage awards

Why are fears of serving on a jury during the COVID-19 pandemic associated with pro-Plaintiff attitudes?

Being in the middle of a pandemic, we are constantly bombarded with information regarding the medical precautions we should take to protect ourselves and our loved ones. Many emotions, including fear, are in overdrive for many people. Our experience and research indicate that fear and the desire to protect ourselves from danger can play a powerful role in how jurors make decisions, particularly in cases involving some sort of actual or theoretical danger (for example, product liability, medical malpractice or toxic tort cases). Further, in many cases, one party may benefit from tapping into that fear and making it more salient while the other will benefit from tempering it. In the trial setting, we often see fear trigger an increased desire to avoid risk and punish those whose actions increase risk (e.g., selling products without adequate testing or using questionable methods to dispose of chemicals), leading to more Plaintiff-friendly verdicts. The difference we are seeing in the current research is that, unlike before, jurors’ fears are activated even before they are hearing any facts about the case.

However, a heightened sense of risk does not impact jury decision making just in cases involving possible physical injury. We’ve seen it impact jury decision making in financial, insurance and fraud cases, among others. Risk is risk, whether it is of using a defective product, being treated inappropriately by a supervisor or having an insurance claim denied.

Another important factor is what cognitive psychologists call “cognitive load.” When our brains are overstressed, they are unable to process information and make decisions well. On top of the usual stressors, people are now also juggling multiple family members trying to work and learn from home, often with limited space and resources, fear of losing their job, fear of losing their home, concern about COVID-19 infection or ill loved ones. Our brains are over taxed and under resourced, which leads to decisions based on mental shortcuts (called “heuristics”) instead of in-depth analysis. Emotions, like fear, play a bigger role in decision making than they would otherwise, exaggerating their impact even more and resulting in a more favorable perception of Plaintiffs and the opposite of Defendants.

Conclusion

Courts are starting to move forward and experiment with in-person trials, online trials and hybrids of the two. They are also trying to hold court in larger, more spacious venues like high school auditoriums, convention centers and  stadiums. As different jurisdictions figure out what works best for them, they must balance logistics and cost with several other considerations such as jurors’ concerns, litigants’ rights and everyone’s health. Litigants are guaranteed by the Constitution the right to a fair and impartial jury, due process and, in criminal cases, a speedy trial. There has been much discussion among the courts, practitioners and other interested observers about how various pandemic-era trial methods might skew the demographics of the jury pool, but little attention has been paid to how they might skew the attitudes held by the jury pool. While many think demographics and attitudes are often synonymous, as we have already stated in this article, they usually are not. Visible appearances of the jury pool are critical to the public’s faith in the process and outcomes, but the invisible beliefs of the jury pool are far more closely associated with, and predictive of, actual outcomes, at least in most civil cases.

These, and other, data indicate excusing or postponing jurors who are particularly concerned about their jury service will likely have a disproportionate impact on the representativeness of venires, grand juries and petit juries, both in terms of demographics and, just as importantly, litigation-relevant attitudes. A small survey of judges indicated judges are seeing more hardship requests now than pre-COVID-19, and most are being more generous in granting them – this risk is not hypothetical.[5] On the other hand, courts are also grappling with unprecedented backlogs in their dockets and extremely limited access to the legal system. There is no easy solution to this problem. Unfortunately, results of this and other surveys might make that decision more, not less, complicated.

Currently, courts all over the country are investigating and taking multiple measures (whether it be in person, online or a mix of both) to give jurors more confidence that they can carry out their civic duty without risking their health. For those hoping to return to full in-person jury trials, the key is in jurors’ perceptions of safety – it will not work just to tell them they will be safe; they will need to feel safe, and it will take some research, trial and error to determine what makes them feel the safest (and is within the realm of practicability for the courts). A June 2020 National Center for State Courts survey[6] of over 1,000 registered voters asked respondents what would make them comfortable serving jury duty in a courthouse; 70% wanted to see everyone wearing masks and social distancing, 74% wanted temperature checks and 76% said COVID-19 tests would make them comfortable. Our October 2020 respondents expressed similar sentiments. They were asked how comfortable certain measures would make them feel if called to serve on a jury between now and January 2021 – about two thirds said masks, 6 feet of social distance or temperature checks would make them feel somewhat to much more comfortable. The same number of respondents were also willing to accommodate a mask requirement. Courts are working hard and expending considerable resources to make their courthouses as safe as possible, but they are a long way from consistently implementing those measures, much less all four together. It will be a while before traditional, in-person jury trials will feel safe for all potential jurors, but when that happens, we should begin to see this difference in Plaintiff- and Defense-leaning jurors’ comfort with completing their jury duty in person disappear.

The data referenced in this article were collected in May and September/October 2020 as part of our “2020 Juror Attitude Survey in the Age of the Coronavirus.” The statements, opinions and results listed in this document may change as the landscape caused by the pandemic evolves.

It should also be noted that the data reported are general in nature and the findings might not be applicable to specific fact patterns or other venues. To determine if these findings apply to a specific case or in a particular venue, DecisionQuest recommends that counsel conduct case- or venue-specific jury research. 

About the Authors:

Get to know Stuart Miles, Ph.D. and Leslie Ellis, Ph.D.

REFERENCES

[1] Data were collected from May 7 to May 19, 2020 and from September 24 to October 2, 2020.

[2] Due to the amount of time between the two surveys, we report only the more current responses regarding experiences with COVID-19 and opinions about jury duty.

[3] For these and the remaining analyses, we report findings in both the May and September/October data analyses that are either based on items only in the May or only in the September/October survey, or when the same items  were included in both surveys and the findings were consistent. Any inconsistent findings from May and September/October are excluded from this report.

[4] Gastil, J., Dees, E.P., Weiser, P.J. & Simmons, C. (2010). The jury and democracy: How jury deliberation promotes civic engagement and political participation. Oxford, UK; Oxford University Press.

[5] https://civiljuryproject.law.nyu.edu/cjp-judicial-advisor-survey-results/

[6] https://nationalcenterforstatecourts.app.box.com/s/n7w8zu89tbayfjr0qz6h7mn6nrg0x6qh/file/680542851103