Discrimination in Jury Selection by COVID-19 Vaccination Status
by Kirsten C. Tynan
Executive Director of the Fully Informed Jury Association
last updated 12 October 2021
- Requests have been made in individual cases in both criminal and civil courts that prospective jurors who have not been vaccinated against COVID-19 be excluded from the jury.
- Judges seem to be making judgments about this on a case-by-case basis without consistent rules in place to govern those decisions.
- Juries in the United States composed only of those who have been vaccinated call into question whether or not the requirement that juries be drawn from a representative cross-section of the community.
One of the many ideas that has been floated to keep jury trials going in the midst of the COVID-19 pandemic is seating only people who have been vaccinated against COVID-19 on juries and excluding those not vaccinated. Those in favor generally believe that excluding the unvaccinated would:
- substantially reduce the risk of jurors becoming seriously ill resulting in a lot of wasted time with days or weeks of work ending in mistrials,
- make it reasonable to seat jurors them in closer proximity to one another thereby taking up less space in the courthouse and increasing the number of jury trials that could be held simultaneously,
- and allow jurors to pay better attention to the trial and deliberations rather than being distracted or feeling pressure compromise to deliver a quick verdict because they are worried that more time in court increases their likelihood of becoming seriously ill.
But there is a big Constitutional problem that cannot be overlooked.
In Taylor v. Louisiana (1975), the Supreme Court ruled that criminal trial juries "must be selected from a representative cross-section of the community" and that this requirement "is fundamental to the jury trial guaranteed by the Sixth Amendment". Other rulings found this same principle applied to civil trial juries and grand juries. But since COVID-19 vaccination has been widely available in the United States, people who are vaccinated vs. unvaccinated have been, at various times, disproportionately split along political, education level, age, religious and several other lines.
While previous disparities along gender and racial lines have significantly reduced since vaccines first became available, Pew Research Center reported in September 2021 that Democrats, older people, those with more formal schooling, and urban and suburban residents are significantly more likely to be vaccinated than Republicans, young adults, those with less formal schooling, and rural residents.
Their findings also reflect significant differences among various religiously affiliated and unaffiliated groups. 82% of Catholics, for instance, report having received at least one dose as compared to 66% of Protestants, with only 57% of white, evangelical Protestants reporting at least one dose.
Even without taking a poll, it is not hard to imagine it is a real possibility that the vaccinated and unvaccinated may also be disproportionately:
- apt to trust or distrust government,
- compliant or noncompliant with a judge's instructions, or
- more or less willing to exercise jury nullification.
While these last three categories would not likely constitute 'distinct' groups in the eyes of the Supreme Court, those of us concerned with jury independence ought to keep them in mind as well as the other demographic categories.
Juror discrimination based on vaccine status calls into serious question whether the resulting juries would satisfy the requirement that juries be drawn from a representative cross-section of the community. This first appeared on my radar in June 2021 when an Ohio judge presiding over a high profile civil jury trial over prescription opioids first ordered that only those who were fully vaccinated against COVID-19 would be eligible to serve on the jury (.pdf). Later that month, after hearing objections from defendants pointing out that this could exclude 40% or more of the community (.pdf), the judge reversed himself (.pdf). At the time of this writing, it appears that some of the plaintiffs in that case are asking him to once again consider dismissing dozens of unvaccinated prospective jurors.
At the same time, there are arguments to be made that defendants may not get as fair a trial if jurors are worried about catching COVID and rush or compromise in deliberations or are biased because they perceive the accused to have endangered them by dragging them into court.
There are also important questions regarding the privacy and safety of jurors who are required by law to participate in jury duty whether they want to or not. Should government be allowed to require someone who did not seek out the job of juror to disclose their private health information, and if so, to whom? Should it be allowed to require people to spend days in court against their will and interact on an extended basis with people they believe may put them at a serious health risk?
On top of all that, there is the issue of whether or not it makes a difference if both sides (prosecution and defense in a criminal trial, plaintiff and defense in a civil trial) agree that vaccinated jurors should or should not be required in their particular trial.
I don't see obvious answers to these questions or an obvious pattern as to how judges will handle them. So far there seems to be a somewhat mixed bag in practice. Where this is going in unclear to me, but definitely something worth keeping an eye on as things unfold.
Below are lists of the jury trials I'm aware of so far in the U.S. and Canada where this idea has been actively floated. While Canada does not have the same Constitutional requirements as the United States, these cases may give some indications of some of the types of arguments that could come up in the United States as well.
This is not intended to be an exhaustive list of all trials and whether or not jurors were required to be vaccinated. Such an enormous task would be well beyond FIJA's limited resources to compile and maintain. Rather, this list is compiled from news reports that have appeared in my alerts where the issue of whether or not to require vaccinated jurors was seriously considered in court proceedings. If you have a link to a case not on this list with documentation that the question of vaccinated jurors was considered in that case, please pass it along to me at email@example.com.
In addition to the individual trials identified, I have added a section to list any orders I come across that give general instruction on the issue of vaccination and jurors that applies not just to an individual case but more broadly in that court. Again, if you are aware of such an order that is not already listed, please send a link to the order to me at firstname.lastname@example.org.
- Benaron v. Simic (September 2021)
- judge intends to require that jurors are fully vaccinated against COVID-19
- no indication in the documentation of the preferences of the plaintiff and defendant on this issue
- Wyndham Lathem trial (September 2021)
- judge denied request that all jurors be vaccinated against COVID-19
- report does not specify which party or whether both prosecution and defense made the request
- MS-13 trial (September 2021)
- prosecution and defense attorneys agree they want only jurors who have been vaccinated against COVID-19
- judge has not yet issued a final ruling on the issue
- Wilbert Bryant and Ppassim Elder trial (September 2021)
- defense opposed requirement that all jurors be vaccinated against COVID-19
- judge mandated all-vaccinated jurors
- Elizabeth Holmes trial (September 2021)
- both prosecution and defense agreed with a requirement that all jurors be vaccinated against COVID-19
- judge dismissed nine unvaccinated jurors
- National Prescription Opiate Litigation (June 2021)
- initially prosecution supported a requirement to dismiss jurors not vaccinated for COVID-19, while the defense requested time to consider and answer
- judge initially ordered that unvaccinated jurors be dismissed
- defense then filed a brief opposing that ruling
- judge then reversed his ruling based on problems pointed out in the defense brief
- R. v. Roche Garcia trial in Vancouver, British Columbia (September 2021)
- Court ordered "that any person serving on this jury shall have received two doses of a provincially approved COVID-19 vaccine"
- no indication in the documentation of the preferences of the prosecution and defendant on this issue
- Vince Maresio Aiello (.pdf) trial in Calgary, Alberta (September 2021)
- jurors who say they are not fully vaccinated or decline to state their vaccination status shall be excused
- neither the prosecution nor the accused took any position on this issue
- Benoit Bissonnette trial in Montreal, Quebec (September 2021)
- defence (with a c because it's Canada!) requested that all jurors be vaccinated against COVID-19
- judge ruled that jurors would not be required to be vaccinated
- R. v. James trial in Powell River, British Columbia (August 2021)
- prosecution requested judge to inquire of all jurors about their vaccination status, assuring them they were not required to answer, and exclude from the jury any who did not confirm they were fully vaccinated
- defence (with a c because it's Canada!) opposed the request
- judge declined to question prospective jurors about their vaccination status
- Martin Frampton trial in Ottawa, Ontario (August 2021)
- a defence (with a c because it's Canada!) attorney praised a judge's decision that all jurors be vaccinated against COVID-19
- judge said he would ask all jurors about their vaccination status and dismiss those who would not verify they are vaccinated, but not require proof of vaccination
Court Level Orders
- United States District Court for the District of New Jersey Standing Order 2021-08 (.pdf) orders that consenting parties in a civil jury trial may move before the presiding judicial officer to request that all sitting jurors be fully vaccinated.