By: Talia Cabrera

Voir dire is the process of ensuring the “jury of your peers” is a representation of your community. Juries are made up of ordinary citizens and play an important role in the criminal justice system. Jurors, who are given the responsibility to decide a case’s verdict, enter the complexities of the courtroom with their own experiences and biases. Notably, jurors are often shouldered with the responsibility of making a decision that will impact how an individual’s life will play out. However, justice is often compromised due to the discrimination that occurs in selecting a jury. Juries that are not representative of the community at large will not only affect marginalized communities of color, but will also lead to higher rates of wrongful convictions and, ultimately, a system far from just.

Unrepresentative juries disproportionately affect communities of color. This discrepancy is apparent first in the unrepresentative jury pools from which jurors are selected and is then reinforced through current and historical use of peremptory strikes to remove people of color from juries. Apart from the institutionalized racism engraved in our history, there are a variety of factors that predominantly affect communities of color and prevent them from serving on juries. According to a report from the Equal Justice Initiative, these factors include: the inability to request time off for work; the financial burden of participation, which includes the courts not paying jurors enough money to participate and the difficulty of obtaining family care; and the lack of transportation for people to report to the courts. Ultimately, these barriers to jury service, which deeply affect the makeup of juries across the nation, need to be reformed to ensure the court system is fair. 

Discrimination in jury selection is a problem many courts have recognized and are striving to change. In 2018, the Washington Supreme Court adopted General Rule 37, which sought to eliminate the unfair exclusion of potential jurors based on race or ethnicity. According to the text of the rule, “the court shall then evaluate the reasons given to justify the peremptory challenge considering the totality of circumstances. If the court determines that an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge, then the peremptory challenge shall be denied.” Given the adoption of this rule, it is clear that Washington has taken initiative to reduce the discrimination we see in a courtroom in order to strive for justice. However, even courts like Washington, who have taken some steps in the right direction, need to take a step further. In order to have more inclusive juries, courts must create opportunities for more diverse communities to participate in jury selection. While it is clear that a state like Washington is trying to reduce unfair exclusion of potential jurors, peremptory challenges are just one part of a bigger issue that needs to be reformed. Courts need to take a step back and see how they can create a comprehensive solution that will bridge the gaps of accessibility that are currently present in jury selection. 

For example, the COVID-19 pandemic forced many sectors to transition to a “work-from-home” format in order to preserve workers’ health and the health of others around them. As of today, many companies continue to employ workers who work remotely, as many realized workers could continue to be efficient from the comfort of their home. While remote work was initially a temporary option for the pandemic, Washington state has seen more participation in remote jury selection and continues to use Zoom for that purpose. Whether Zoom or courthouse, not much has changed in the way jury selection occurs in King County, e.g., jurors still get notified in the mail if they have jury duty. But now, jurors no longer need to attend in person. In King County, jurors are still required to set time aside to attend court but now, so long as they have an electronic device, jury duty can be completed anywhere.

Through the incorporation of Zoom in court proceedings, jurors no longer need to spend time on tasks such as figuring out how to get to the King County Superior Courthouse downtown. Jury members are now able to eat lunch at home, avoid paying expensive parking, and still appear for 90 minutes in the comfort of their living rooms. Increased participation should help create a better reflection of the community in the jury of our peers. However, there are still many issues left unresolved. Even though Zoom voir dire may help with accessibility, such benefits are only available to those who have the privilege of possessing technology. Technology may not be available for everyone. It is possible that a juror may not have the appropriate resources to withstand hours of jury selection. For example, some jurors may not even have Wi-Fi. In addition to the technological divide that zoom voir dire creates, many of the same factors we have seen in the past, like the financial burden of taking a day off work, continues to be a prominent issue for people participating in jury selection. Although participation may have increased with zoom voir dire, it may have only done so for those who have the privilege of accessible technology.

Maybe there is a way for technology to help eliminate the risk of unrepresented juries in our court system. It is possible that new laws, policies, or even court rules like General Rule 37, will need to be created to help alleviate the factors that prevent jurors from participating. If possible, courts should provide individuals without access with loaned technology. For jury participants who do not have access to Wi-Fi, the courts should provide usable locations with Wi-Fi or temporary Wi-Fi vouchers. Currently, there is not a lot of faith in the criminal justice system in part because of the disparity in makeup of the broader community and that of jury pools. Efforts must be made to dismantle discrimination and create a fair and just court system. If not, we will continue to see the reinforcement of systemic racism throughout our criminal justice system.