"An all-women jury"! So read the headlines announcing the end of jury selection for the latest murder trial to obsess the nation. Six women will decide whether George Zimmerman acted in self-defense in the shooting death of Trayvon Martin. But, what does it say that the "all women jury" was the lead story?
As a legal matter, it means little. The Constitution only guarantees a fair cross section of the community in the jury venire (meaning the entire jury pool). Since both men and women were in the larger jury selection group, the ultimate composition of the final jury of all women does not raise any constitutional concerns. Further, because there was no allegation that men were excluded during preemptory challenges (the lawyer's discretionary choices to strike potential jurors) there exists no gender-based objection to the final jury.
But, as a statement about the image of the jury today, an all-female jury means something significant. First, it shows just how far juries have come in embracing the promise of equality: Today, an all-female jury is possible, and we are surprised by it--because we are unused to such a demographically skewed jury, and expect juries to look roughly representative of the American population at large.
Full gender equality in jury service is a rather recent accomplishment. By law, women were disqualified from serving as jurors in almost every state until the latter part of the twentieth century. Florida, the location of the Zimmerman trial, only removed exclusions in 1967. While certain states allowed women to serve on juries before the passage of the Nineteenth Amendment--Utah, Washington, Kansas, Nevada, California, and Michigan--most states did not. It was not until 1975 in Taylor v. Louisiana that the Supreme Court struck down the last remaining state exclusionary policy keeping women from equal participation. As late as 1957, Alabama, Mississippi, South Carolina, and West Virginia simply barred women from serving on juries altogether.
The fact that an "all women" jury was newsworthy - even surprising news - says something about our expectations of what a representative jury should look like. We expect equal representation of gender, race, and class or a close approximation. That we expect this reality in the face of a history of jury discrimination against women and people of color again is a tribute to the progress made toward equality in jury service. Today, jury service remains one of the few experiences that transcends gender, race, and class boundaries present in much of society. So, an all-female jury confounds our expectations, not because it is all women but because it is not as diverse as we would expect.
Second, this outcome shows the consequences of smaller juries. While most criminal juries in felony cases require twelve jurors, the Supreme Court has allowed states to experiment with juries as small as six. Florida is one of two states to have exercised that option in noncapital serious felony cases. The result is that less diverse juries are statistically likely to occur in some cases.
Finally, of course, a single-gender jury allows armchair trial lawyers to speculate on how gender might influence the verdict. Will women sympathize with someone who claimed to be in fear for his life? Two of the female jurors themselves own guns for self-defense. Will they sympathize with the tragic loss of a teenage son? Five of the jurors are mothers. These questions evoke the larger and largely unspoken issue at the heart of any jury selection - do women decide cases differently?
The Supreme Court tried its best to answer that unanswerable question with Justice William Douglas (a man) explaining why the intentional exclusion of women negatively affected jury deliberations. The reasoning below from Ballard v. United States is still good law (cited in Taylor v. Louisiana) and represents a wonderful muddle of an answer:
The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not, in a given case, make an iota of difference. Yet a flavor, a distinct quality, is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.
There it is - a Supreme Court doctrine based on imponderables, flavors, and subtle interplays. The Zimmerman case presents no claim of intentional exclusion, but we will see if the "subtle interplays" or "flavor" of a single gender jury results in any different result.
The real hope, of course, is that these women thrust into the national spotlight will decide the case not as representatives of a gender or race, but as citizens, doing their duty to the courts and the Constitution. Jurors remain a critical part of our system of criminal justice. In big cases and small, all across America ordinary citizens rise to the challenge of deciding the most contested issues in society. Hopefully, the headlines at the end of the case will focus on the facts and evidence, not gender or race, and the jury system will be redeemed once again.
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