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Why juries are biased: only rich people can afford to be on them

dylan c. robertson

yellowing book and judge's gavelOn Monday, the Toronto Star reported on two Ontario judges who opened an investigation after noticing slumping jury attendance rates — at times reaching as little as 50 percent.

The article goes in depth, examining jury absence rates and penalties by province. Only three of the provinces and territories track jury attendance, but those who do have relatively low penalties.

There are many reasons to avoid jury duty: it’s long, often unpleasant, and “sucks so bad.” The internet is abound with suggestions on how to get out of jury duty, with everything from feigning racism to being gay. Even if you do serve on a jury, you could cause a mistrial by being “dumb”.

In Canada, it is a civic duty to respond to a jury summons, either by showing up for the jury selection panel or providing a sufficient reason not to partake as a juror.

While some of the commentators on the Star article gladly participated in a lawyer hate-on, many spoke out about the very real barriers to participating as a juror.

Employers are legally obligated to grant employees leave for jury duty. Although jury duty remuneration vary by country and jurisdiction — in Phoenix you get free wi-fi, in L.A., free art gallery admission — it’s almost universal that employers have no requirement to pay salaries while you do your civic duty.

If approved at a jury panel, jurors in Ontario aren’t compensated until after 10 days of service (day 11 to 49: $40.00 per day, day 50 onwards: $100.00). This scheme is replicated across the country. In our (maybe post-)recession economy, many have less job security. With little to no stipend for lost work days, especially for the rising number of self-employed and those in precarious work, it’s no wonder many opt out.

There’s also the issue of transportation. When called to jury, citizens in most provinces have to get to the trial — or a jury panel, where they might be declined — on their own dime. A daily travel expense is issued to those approved for jury service living outside the city where the courthouse is.

As the Ontario government says, “parking facilities vary from courthouse to courthouse, and public transportation is strongly recommended if available. If you attend the courthouse as a member of the jury panel, you will be responsible for paying your own parking fees.” Nice.

While justice systems make allowances for certain hardships — medical conditions, school, vacations — being among the working poor isn’t one of them. In Ontario, there is no allowance issued for childcare expenses, so if you have to take time off from your minimum-wage hourly-paid job to attend jury duty, you’re left holding the bag for daycare or babysitting costs, without any income to offset it. The increasing number of people in that situation literally cannot afford to serve on a jury.

What results is a socially unrepresentative pool of potential jurors who are likely to be more economically privileged than the defendants they sit in judgment on. Much research has been published on jury biases based on economic background.

It’s reasonable to hypothesize that socio-economic status shapes verdicts. A jury’s perspective is shaped by the jurors themselves. If only those of a certain class or salary are able to afford the luxury of jury duty, they will deliberate on a very specific set of principles—especially in cases where poverty or race is involved.

Justice is costly. Fair trials require time, professionals, and lots of documentation. But just as underpaying prosecutors threatens the pursuit of justice, perpetuating barriers to jury duty compromises the integrity of a fair trial.

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