The Patriot Juror

In a recent article a group of distinguished jurists, Victor Schwartz, Mark A. Behrens and Cary Silverman, describe the right to trial by jury as “perhaps the most unique characteristic of the American justice system.” 1 They quote Alexis De Tocqueville, in Democracy in America. 285 (J.P. Mayer ed., 1975):

[The jury] teaches men2 to practice equity; every man learns to judge his neighbor as he would himself be judged ... By obliging men to turn their own attention to other affairs than their own, it rubs off that private selfishness which is the rust of society.

The authors point out the low participation rate of those called to jury duty and offer several suggestions, embodied in a “Jury Patriotism Act,” a model act designed to increase the rate of jury service. Some of the recommendations of the Model Act have already been implemented in King County. Other, quite provocative ideas, have yet to be addressed locally.

First among their suggestions is giving a juror the option of rescheduling service. King County currently allows jurors to reschedule their service once to any Monday selected within one year.

Another suggestion is to reduce the length of service. While some courts have a one-day (or even one half-day)-one trial system, our two-day, one trial system is a reasonable accommodation of the needs of jurors and of the court.

The proposed Act also recommends elimination of occupational exemptions where they exist. In Washington, there are no occupational exemptions. RCW 2.36.100. We have recent experience with both practicing lawyers and judges serving on trial court juries.

Protecting employment rights is another goal of the Act. In Washington, RCW 2.36.165 prohibits an employer from threatening, coercing, harassing or denying promotional opportunities to an employee who has been called to jury service.

The Model Act requires a tightening up of hardship excuses, recognizing only three hardship situations that would qualify for excuse from jury duty: inability to obtain a substitute caregiver for a person under the personal care or supervision of the potential juror; substantial adverse impact on the payment of necessary living expenses (not maintaining the customary standard of living); and suffering from physical injury or disease because of jury service. Under the Act, all excuses would have to be confirmed by financial, medical or other evidence.

Under the Act, failure to appear would result in a citation exposing the non-responding juror to a criminal conviction, fine or imprisonment or both. In Washington, intentional failure to appear is a misdemeanor. RCW 2.36.170. I am not personally aware of any instance in which a person has been charged with failure to appear.

Perhaps the most thought provoking element of the Act calls for the establishment of a Lengthy Trial Fund, from which jurors on longer cases would be paid at a level that would represent their loss of income to the level necessary to avoid financial hardship. The goal is to provide these cases with a better cross-section of the community on the assumption that in longer cases, more potential jurors are excused for financial hardship reasons. The Fund would provide compensation to jurors, on an individual basis, of up to $100 per day for a trial of over three days, and up to $300 per day for a lengthy trial of ten days or more. Jurors would be required to provide verification of usual income and need.

A number of states pay much more than King County does in daily jury fees. We pay $10 per day, regardless of length of service, a rate that has been in effect since sometime before I served on jury duty in 1963 (when a college student’s summer job might pay $1.25 per hour). New York pays $40 per day; New Mexico pays minimum wage, and some states increase the amount for all jurors for lengthier service.

It would take a substantial, and unrealistic, increase in our court budget to even increase the jury compensation level to $20 or $25 -and even that increase would not have a significant impact on financial hardship.

The Model Act suggests that the fund would be financed by allocation of a portion of the civil case-filing fee. Another source could be allocation of a portion of the jury demand fee, which would need to be increased, again. There are costs and benefits to any financing option, and I am sure there are a lot of ideas that would be generated if this idea were seriously pursued. I think the proposal for a lengthy trial fund has merit and is worthy of discussion.

Patriotism is defined as love for, or devotion to one’s country. Service on jury duty is such an important aspect of our life in America. Who should be the Patriot? The juror who is asked to serve without adequate compensation or the parties who are asked to pay yet another tax to gain access to a jury?

Richard Eadie is the Presiding Judge of the King County Superior Court.

1. The Jury Patriotism Act: Making Jury Service More Appealing and Rewarding to Citizens, The State Factor, American Legislative Exchange Council, April 2003.
2. DeTocqueville would certainly have included women, if women had generally served on jury duty. In times of yore women served only on those juries made up solely of women, when the pregnancy of a woman was at issue. In the United States women were excluded from jury duty in some states until as recently as 1970. In State v. Hall, 187 So.2d 861 (1966) the Mississippi Supreme Court wrote:

The legislature has the right to exclude women so they may continue their service as mothers, wives, and homemaker, and also to protect them (in some areas, they are still upon a pedestal) from the filth, obscenity, and noxious atmosphere that so often pervades a courtroom during a jury trial.