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January 10, 2014

"A Field Study of the Presumptively Biased: Is There Empirical Support for Excluding Convicted Felons from Jury Service?"

The title of this post is the title of this very interesting new empirical paper by James Michael Binnall now available via SSRN. Here is the abstract:

In the United States, a vast majority of jurisdictions statutorily exclude convicted felons from jury service. Justifying these exclusions, lawmakers and courts often cite the inherent bias rationale, which holds that convicted felons harbor a prodefense/antiprosecution pretrial bias that would jeopardize the impartiality of the jury process. The inherent bias rationale has never been the subject of empirical analysis. Instead, authorities seemingly accept the logic of the rationale unconditionally.

This study (1) explores the prevalence, strength, and direction of convicted felons' pretrial biases; (2) compares the group‐level pretrial biases of convicted felons, nonfelon eligible jurors, and nonfelon law students; and (3) examines if and how a felony conviction shapes pretrial biases. The results of this study indicate that a majority of convicted felons harbor a prodefense/antiprosecution bias and, in this way, differ from eligible jurors generally. Yet, the results of this study also show that many convicted felons are neutral or harbor a proprosecution pretrial bias, and that the strength and direction of convicted felons' group‐level pretrial biases are similar to those of other groups of nonfelon jurors. In sum, this study suggests that while felon jury exclusion does not offend applicable constitutional standards, it is an imprecise and perhaps unnecessary practice that may come at substantial costs.

January 10, 2014 at 08:35 AM | Permalink


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If one wishes to argue for a more progressive/antinomian position for federal juries, he'll have to look extra-Constitutionally.
If a state wants to scrape the bottom of the barrel, that is her perogative.

P.S. "authorities seemingly accept the logic of the rationale unconditionally."
Not their sole rationale.

Posted by: Adamakis | Jan 10, 2014 8:55:05 AM

Felons who have served their sentence should be permitted to vote and serve on juries. If they cannot, neither should ex-prosecutors, prosecutors, ex-LE, LE, ex-judges or anyone who belongs to a public union or receives a pension from a public union because of their potential pro-prosecution, pro-government biases.

Posted by: albeed | Jan 10, 2014 9:07:59 AM

i have to give albeed ths one. if a so-called bias against the govt and law enforcement is grounds to stop service. Then the same should apply like he said to anyone drawing a check or support from the other side.

After all justice is supposed to be fair and even.

Posted by: rodsmith | Jan 10, 2014 10:42:51 AM

Well, defendants are to be tried by a jury of peers..

More seriously, excludind felons is needed do that the integrity of the legal system is maintained.

Posted by: visitor | Jan 10, 2014 1:26:27 PM

Since the disqualification extends to service on civil juries, bias is probably not the best justification.

The better justification of collateral consequences that involve the loss of some civil rights (e.g. voting, jury service, eligibility to run for office) is that people who have committed crimes have in some way demonstrated an unwillingness to abide by society's rules. As these civil rights are connected to the making and enforcing of those rules, individuals who have demonstrated an unwillingness to abide by the rules have forfeited the right to participate in the processes by which those rules are made and enforced.

Posted by: tmm | Jan 10, 2014 6:14:19 PM

tmm said:

"As these civil rights are connected to the making and enforcing of those rules, individuals who have demonstrated an unwillingness to abide by the rules have forfeited the right to participate in the processes by which those rules are made and enforced."

Duh, I don't think so! You are using your imaginary stereotyping to deny civil rights to people who have served their sentence. Do some people disqualify themselves on an ongoing basis from civil rights. Yes, but not everyone. This should not be a continuing restriction that denies anyone a means to become "rehabilitated", whatever that means.

There needs to be a "mechanism" for those who have supposedly not followed the rules (Martha Stewart, the BP engineer for obstructing justice, etc.) to not become societal pariahs after they have served their sentence.

Also, do not equate Society's rules with Government's rules. You can argue all you want about the government establishing the rules (not laws) that society wants but I will disagree strongly. That is a topic for another thread. I am glad that you distinguished rules (malum prohibitum) from laws (malum in se).

Posted by: albeed | Jan 10, 2014 9:13:32 PM

In Michigan not only are felons exluded from jury duty, but so are the elderly (if they so choose). It seems logical to allow felons to be on a jury if we are really serious about bringing them back into society. It does seem strange to send felons a notice to serve on a jury and then exclude them when they show up. Why drag them away from their jobs?

Posted by: Justice Moor | Jan 11, 2014 6:43:57 AM

Justice Moor,

The jury summons I have received over the years (state court in Idaho, both federal and state in Alaska) all inquired into whether I was disqualified by reason of conviction or unable to serve for some other reason, so I would not have been taken from a job if I were not qualified. Is that not standard practice everywhere?

Posted by: Soronel Haetir | Jan 11, 2014 10:14:33 AM

visitor you shouldn't make me laugh so much.

You realize a nice % of the so-called upstanding individuals who control the legal system are bigger crooks then the ones they sit in judgement over. Cops, DA's, Lawyers, Judges ALL have been caught lieing though their teeth or ignoring the law. Most never get touched. Hell some get promoted. But it's ok for them?

Sorry again NOPE! until the govt starts playing by the same rules as the rest of us. We the people reserve the right to ignore their asses and do what WE feel like!

Posted by: rodsmith | Jan 11, 2014 7:06:41 PM

I couldn't get the article to download, so I'm commenting a bit blind. There's definitely a good argument that systematically excluding convicted felons from juries violates the defendant's right to a fair cross-section. Keep in mind that this right is not the same as an Equal Protection right but is something broader and concerned with representing a diversity of viewpoints and experiences of the community in the jury pool. With that in mind, even the collateral consequences viewpoint should be secondary to the right to trial by jury.

Posted by: Erik M | Jan 11, 2014 9:43:15 PM

When the Vikings were not pillaging, they liked to sue each other. A jury was an advance for them, then for Henry II in the 1100's AD. The idea that a group of Shanghai'ed, lawyer enslaved, cranky people whose lives are completely disrupted people can decide the truth is ridiculous today. The jury cannot be made to meet Daubert standards as a truth machine. The jury represents a regulatory taking and enslavement by vile, worthless thugs running the courts of the nation. The jury system should end, and be replaced by an inquisitorial judge system. This judge should specialize in a subject. He should carry full professional liability insurance to cover his deviations from professional standards.

If the jury is to remain a while longer, these are essential enhancement to give it any validity, having zero validity now.

1) Random selection for the jury pool. Stop punishing people for voting by taking juror s from the electoral rolls. No exceptions. From President to mentally retarded homeless bum, no one gets out of the jury pool. Anyone with intelligence is now getting out of jury duty. Then anyone remaining with intelligence and knowledge is being disqualified by the lawyer dumbass. It is completely unknown which way the bias of the ex-felon will go.

2) One secret vote. And that is the verdict. All subsequent votes reflect the views of the one loudmouth bully, and the going along of the rest so they can just go home.

3) Jurors should be paid the full amount of any lost income for their service, to stop the violation of the Thirteenth Amendment. If this not enacted, the slaves have every moral right, even duty to first lash, then to kill their slavers. To deter.

Posted by: Supremacy Claus | Jan 12, 2014 1:20:13 AM

I believe the sole aspect of the case being decided by a modern jury is how likable the defendant vs the prosecutor. I would like to see a law student do a summer project studying attractiveness of the parties and likelihood of verdict in their favor, including breast sizes, and blind ratings of niceness. Maybe Erika can be their supervisor.

Posted by: Supremacy Claus | Jan 12, 2014 5:22:58 PM

Doug, It appears that this paper is not actually available for download unless a 35$ fee is paid. Am I missing something?

Posted by: Gray Proctor | Jan 16, 2014 12:36:26 PM

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