Would You Want Charlie Sheen on Your Jury?
If Governor Jerry Brown signs a newly passed bill, non-citizens will be as eligible for duty as notorious Hollywood actors.
Last week, Charlie Sheen—a poster boy for substance abuse and mental instability—showed up for jury duty in Los Angeles, telling the gossip site TMZ that he hoped for a multiple homicide case. He was dismissed by 3 p.m. that day. But his summons happened to come at a particularly interesting time for jury duty in California. Right at this moment, Governor Jerry Brown is poised to sign or veto a bill allowing non-citizens to serve as jurors.
The bill has been the subject of much public debate. But Sheen’s call to service raises a crucial question: Who would you rather have sitting on your jury: (a) a Citizen Sheen, or (b) a lawful permanent resident who, by virtue of retaining that protected status, has followed the laws of the country? In other words, does being a citizen make you a better juror?
If so, is it a question of civic knowledge? There are no educational requirements for jury service. Birthright citizens can serve without any qualifications, save being able to understand English. There are no special tests of legal processes, or even basic reading comprehension. Naturalized citizens do have to pass a 100 question citizenship test (in English), but it includes questions like, “Name two national holidays” and “Where is the Statue of Liberty?” The questions and answers are available before the test and applicants must correctly answer only six of 10 correctly. Thus, there is nothing about citizenship, born or made, that necessarily creates a more knowledgeable juror.
Is it a matter of fact-finding ability? Jury instructions tell jurors to find the facts and apply the law. But citizenship does not provide any greater insight into fact-finding. Most trials turn on witness testimony and documents, the evaluation of which does not depend on any particularly American experience. Whether you were born in San Diego or San Paulo makes little difference when you sit down to evaluate witnesses (who could be from either place) or apply the controlling law.
Is it about connection to the community? Juries are meant to represent the community conscience, a role that dates back to the era of small villages. Neighbors of the suspects and victims were thought to be better able to determine a just outcome than judges who simply appeared for trials at irregular intervals. But non-citizens live in a community, just as citizens do. They also act as witnesses, victims, defendants, and parties in civil and criminal cases. A community jury that represents the local community, thus, has no real reason to distinguish between citizens and non-citizens.
Is it a question of fairness? A defendant expects to be held accountable by a “jury of one’s peers.” But what defines a peer? As a constitutional matter, “peers” simply a represent a fair cross-section of one’s society. If that society includes non-citizens living alongside citizens, there is no constitutional problem. Besides, many defendants are themselves non-citizens, and a jury of their peers should (by definition) include non-citizens as well.
Is it about power? In our representative democracy, citizens make their voices heard in each of the branches of government. Citizens vote for elected leaders and run for office themselves. They also serve as jurors, not because we don’t have judges who could do the work, but because their involvement in the justice system remains critical to its legitimacy. Moreover, the jury has a certain symbolic significance in American politics. For generations, white males were the only Americans allowed to serve on juries. For this reason, when advocates of civil rights and women’s suffrage sought to claim equal status, they fought hard for the right to be jurors. Having the authority to judge one’s peers in this way was considered a crucial badge of belonging. So as I have argued here before, perhaps citizens are right to cling to this duty as a last marker of American civic identity.
However, these arguments of power, symbolism, and identity are undercut by the reality that many citizens aren’t truly living up to their civic duties. Is Charlie Sheen really qualified to deliver the verdict on a multiple homicide case simply because he was born to American parents? This question is our challenge, even if, fortunately for us, most citizens value and appreciate the importance of civic participation. But if citizenship matters for jury duty eligibility we need to ask why it matters. It’s not an easy question to resolve, but like jury service, it is a job that only “we the people” can do.