Peremptory Challenges Research Articles

The Problem with a Peremptory Challange – a Tool of Racial Discrimination Within American Jury Selection Process

Jury duty serves as one of the fundamental pillars of American democracy, for it encourages direct citizen participation. Yet, the process of selecting its members is characterised by a flaw in form of a peremptory challenge — a tool with considerable potential for abuse since it permits covert discrimination against members of visible minority groups. Despite not being a procedural right protected by the Constitution of the United States, peremptories have entered the canon of provisions thought to be necessary for preserving the fairness of trial due to their long history of employment in the legal system. In the late 1980s, the Supreme Court in Batson v. Kentucky ruled the exclusion of jurors solely on the basis of their race to be unconstitutional and established the first preventative procedural standard against dubious usage of peremptories in form of the Batson Rule. The effectiveness of the said standard remains questionable, for it did not successfully deal with racial discrimination during voir dire but only enabled to formally object to the questionable juror’s strike. This paper aims to put racial discrimination within the American jury system into a historical perspective, analyze the arguments of both the supporters and the opponents of further peremptory challenge usage and consider probable alternatives that might be implemented to successfully prevent discriminatory practices within the American jury selection process.

Bayesian Detection of Bias in Peremptory Challenges Using Historical Strike Data

United States law bars using peremptory strikes during jury selection because of prospective juror race, ethnicity, sex, or membership in certain other cognizable classes. Here, we extend a Bayesian approach for detecting such illegal strike bias by showing how to incorporate historical data on an attorney’s use of peremptory strikes in past cases. In so doing, we use the power prior to adjust the weight of such historical information in the analysis. Using simulations, we show how the choice of the power prior’s discounting parameter influences bias detection (how likely the credible interval for the bias parameter excludes zero), depending on the degree of incompatibility between current and historical trial data. Finally, we extend this approach with a prototype software application that lawyers could use to detect strike bias in real time during jury-selection. We illustrate this application’s use with real historical strike data from a convenience sample of cases from one court.

An Experimental Attempt to Mitigate the Illegal Practice of Using Race as a Deterministic Variable in Prosecutorial Peremptory Challenges

Before a person becomes a juror, they are a venire person who must clear voir dire, the process by which attorneys pare the original pool of potential jurors down to the standard twelve. There is much research that exists supporting the posit that White jurors are harsher toward minority defendants than they are to White defendants (Mitchell, Haw, Pfeifer & Meissner, 2005). Furthermore, group polarization is a common occurrence that has been studied since James Stoner’s paper entitled “Risky and cautious shifts in group decisions: The influence of widely held values” (1968), suggesting that a group (jury) will have more bias as an aggregate than the individual (jurors) will themselves exhibit. Thus, heterogeneity of race in a jury would likely mitigate the potential for racial bias to be a consideration in jury decisions. In fact, in Batson v. Kentucky 476 U.S. 79 (1986), the Supreme Court ruled that race must not be a factor when attorneys consider whether a venire person will or will not eventually become a juror during voir dire. However, recent cross-disciplinary research conducted by Sommers and Norton (2007) has applied experimental social psychology methods to explore this important legal issue. These experiments indicate that a more homogenous jury may still be the outcome of voir dire, regardless of the Batson decision. The paper that follows is a summary of the theoretical basis for an ongoing study.

Quantifying disparate questioning of Black and White jurors in capital jury selection

AbstractNumerous studies have demonstrated that female and Black jurors are under‐represented on juries in criminal cases, especially so when the prosecution seeks the death penalty. The primary, but not exclusive, way in which this happens is that prosecutors remove them from the jury pool through the exercise of peremptory challenges. The practice remains widespread despite the Supreme Court's decision more than 30 years ago holding that using such challenges in a racially (or gender based) discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment. In the years since, enforcement by the Supreme Court and state and federal courts has been uneven. However, in several recent cases, in finding that prosecutors struck Black venire persons because of their race, the Supreme Court relied in part on evidence that the prosecution questioned Black and White venire persons differently. The legal term of art for this practice is “disparate questioning.”

Racial bias in jury selection

Abstract In criminal justice, the controversial peremptory challenge allows lawyers to dismiss potential jury members without giving a reason. Chris Salahub gathers data to paint a picture of racial bias in jury selection

First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction

First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction

A Bandage on A Broken System: Moving Beyond Peremptory Challenges To Increase Indigenous Juror Representation In Canada

In 2016, Colten Boushie, a 22-year-old Indigenous man, was fatally shot by Gerald Stanley, a white farmer. Stanley was later acquitted of second-degree murder and manslaughter by an all-white jury. Peremptory challenges became the major legal focus, with the all-white jury attributed to the defense attorney’s peremptory dismissal of five Indigenous individuals from the final jury panel. Following a raucous public debate, just two months after Stanley’s acquittal, Canada’s Government quickly introduced Bill C-75, eliminating peremptory challenges. While some legal actors view the ban on peremptory challenges as a step toward improving Indigenous juror participation, others argue that this elimination decreases Indigenous representation. As the insular debate endures, it continues to distract from numerous substantial issues with more profound implications on Indigenous juror representation. Through an analysis of the Jury Acts of Ontario, Saskatchewan, and Manitoba, this Article highlights how provincial jury pool selection and summoning policies continue to encourage Indigenous exclusion. For more representative juries, Canada must move past peremptory challenges and acknowledge that sustained efforts made in partnership with Indigenous communities are desperately needed. Examples are offered of structurally-oriented, deeper reform actions to begin the process of addressing root causes of white-washed criminal juries in Canada.

Pushing New Frontiers: Extending Neil to Peremptory Challenges Based on Religious Affiliations

Pushing New Frontiers: Extending Neil to Peremptory Challenges Based on Religious Affiliations

The impact of minimal versus extended voir dire and judicial rehabilitation on mock jurors’ decisions in civil cases.

Objectives: Three experiments tested the utility of minimal versus extended voir dire questions in predicting mock jurors’ verdicts and damage awards, and whether the biasing impact of their preexisting attitudes on case judgments could be reduced by judicial rehabilitation. Hypotheses: We hypothesized that extended voir dire questions would be more predictive of case judgments than minimal voir dire questions. We hypothesized that judicial rehabilitation would not reduce this impact of preexisting attitudes on case judgments. Method: Across three experiments, each focusing on a different civil case (insurance bad faith, wrongful birth, medical malpractice misdiagnosis), online participants (N=2,041; 62% female; 77% White, 9% African American, 6% Asian/Pacific Islander, 6% Hispanic or Latino/a; Mage=40) were paid Mturk workers. They were randomly assigned to experience (a) no voir dire, minimal voir dire focusing on previous legal experience and self-identification of biases, or extended voir dire focusing on specific attitudes about civil litigation, parties, and laws, before judging the case and (b) no judicial rehabilitation, or judicial rehabilitation. Participants read a civil case, made case judgments, and completed bias awareness measures. Results: Demographic information and minimal voir dire questions did not predict case judgments, but the majority of extended voir dire responses predicted verdicts and damage awards. Judicial rehabilitation did not reduce the biasing impact of their preexisting attitudes on case judgments—but did result in mock jurors reporting that they were less biased, despite judicial rehabilitation not actually reducing their bias. Conclusions: Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility. Further, although judicial rehabilitation might make jurors think that they are less biased, it may not actually reduce the impact of their preexisting attitudes on their case decisions. Public interest statement: Contrary to popular belief, juror biases are not likely to be cured by judicial rehabilitation, and might backfire by creating the illusion in jurors that they are unbiased. Although very few mock jurors were able to self-identify things that might bias them when asked general questions in voir dire, they were willing to admit specific attitudes that biased their verdicts and damage awards when asked. Thus, we suggest reducing bias on juries by allowing attorneys to ask specific, detailed voir dire questionnaires crafted by the parties to streamline the jury selection process and remove jurors for cause or via peremptory challenges, rather than relying on “quick fixes”, such as general questions that ask jurors to self-identify their own bias or judicial rehabilitation.

Racially Imbalanced Peremptory Challenges by the Defense as a Reactionary Process

The use of peremptory challenges in American criminal trials has been found to be racially discriminatory despite race-based motivation being unconstitutional in jury selection. One argument made in defense of peremptory challenges is that the prosecution and the defense counteract each other, and “cancel out” each other’s impact. Using data from 208 criminal trials in Mississippi, this study examines whether the prosecution and defense counteract each other and what impact this has on juries. Findings suggest that the prosecution has a significant effect on the defense’s use of peremptory challenges. Although the average proportion of Black jurors is not significantly different as a result of peremptory challenges, the greater dispersion in proportions increases the volatility in jury composition.

Report of the Willamette University College of Law Racial Justice Task Force on the Use of Peremptory Challenges during Criminal Jury Selection in Oregon

Given recent events, the country has begun to recognize the impact of implicit bias on the criminal justice system. Washington and California, for instance, have made progress in creating broader opportunities and diversification within the jury selection system. Oregon, however, has yet to revise its rules for jury selection. This Report examines the connection between implicit bias and the nature and use of peremptory challenges in Oregon’s jury selection process. Accordingly, this Report argues that Oregon must implement a rule that strengthens—or even eliminates the need for—Batson’s rule and limits the impact of bias in our judicial system. In doing so, the Report proposes two solutions to reduce the impact of implicit bias on Oregon's jury selection process. This Report’s first recommendation is to abolish peremptory challenges in criminal proceedings. This would require repealing and replacing Or. Rev. Stat. § 136.230, which authorizes peremptory challenges in criminal prosecutions. The Task Force finds that persistent and ongoing racially motivated constitutional violations will continue unless the peremptory challenge is eliminated. This proposal tracks with the recommendation of U.S. Supreme Court Chief Justice Thurgood Marshall, U.S. Supreme Court Justice Stephen Breyer, and a growing body of scholars. It also follows the lead of England, which abolished the peremptory challenge, through the Criminal Justice Act of 1988, due to its propensity for discriminatory use. For similar reasons, Canada eliminated peremptory challenges in 2019 due to their propensity to exclude minority jury panelists. Batson challenges allow attorneys to articulate supposed reasons for “gut-reactions” and are widely acknowledged to serve as a poor mechanism for dealing with the documented implicit bias that exists within the criminal justice system. As Chief Justice Marshall once said, “Even if all parties approach the Court’s mandate with the best of conscious intentions, that mandate requires them to confront and overcome their own racism on all levels—a challenge I doubt all of them can meet.” Faced with a better understanding of implicit bias, Oregon has the opportunity to reduce the impact of implicit bias in its courts by abolishing the use of peremptory strikes. Alternatively, this Report recommends that Oregon implement a rule that combines aspects of both Washington’s GR-37 and California’s Assembly Bill No. 3070 (“AB 3070”). Such a rule would strengthen Batson challenges, as well as expand the classes of persons protected against discrimination. The hybrid Oregon rule would adopt GR 37(h), which lists presumptively invalid reasons for peremptory challenges that have historically been associated with improper discrimination in jury selection. It would also adopt AB 3070(d)(3), which provides a non-exhaustive list of circumstances a court may consider when ruling on an objection to a peremptory challenge. Such a rule would address some of the problems associated with implicit bias in Oregon’s juror selection process and, in doing so, better ensure that Oregon’s defendants receive a fair trial. At its core, this Report demonstrates that the deficiencies of Batson must be remedied in an effective manner, whether by the elimination of the peremptory challenge or the formulation of a new Oregon rule.

Real to Reel: Truth and Trickery in Courtroom Movies

This book is about courtroom movies. These films are eternally popular with filmmakers and audiences because they combine great storytelling with lots of conflict and suspense. We never know whether the jury will send the defendants to the chair or allow them to walk out the courtroom door to freedom. Courtroom films often wrestle with the eternal conflicts between law and justice and between truth and falsehood. Often courtroom movies delve deeply into hot button issues like the death penalty, inter-racial adoption, discrimination based on race or gender, political protest, or military justice. The book reviews almost 200 courtroom movies, going back to the early 1930s and continuing to the present. It can serve as a video guide to help you discover trial films you haven’t seen and rediscover the ones you have. To help you make your selection, the book assigns gavel ratings to each film, with four gavels reserved for the classics. But the book is much more than a video guide. It’s intended to answer the questions that viewers might ask after they see the film. If the film is based on a true story, how closely does it follow the historical facts? What is hearsay evidence, manslaughter, libel, community property or a peremptory challenge? Can lawyers really pull off dramatic courtroom stunts?

Strategic Sample Selection

Are the highest sample realizations selected from a larger presample more or less informative than the same amount of random data? Developing multivariate accuracy for interval dominance ordered preferences, we show that sample selection always benefits (or always harms) a decision maker if the reverse hazard rate of the data distribution is log‐supermodular (or log‐submodular), as in location experiments with normal noise. We find nonpathological conditions under which the information contained in the winning bids of a symmetric auction decreases in the number of bidders. Exploiting extreme value theory, we quantify the limit amount of information revealed when the presample size (number of bidders) goes to infinity. In a model of equilibrium persuasion with costly information, we derive implications for the optimal design of selected experiments when selection is made by an examinee, a biased researcher, or contending sides with the peremptory challenge right to eliminate a number of jurors.

Closing the Loophole: A Critical Analysis of the Peremptory Challenge and Why it Should be Abolished

In theory peremptory challenges should be used to ensure a fair system of jury selection, however, in practice, they are a loophole exploited to racially discriminate. Peremptory challenges are now systematically and intentionally employed to racially discriminate in the jury selection process, effectively excluding Black potential jurors from jury service. At the outset, the author examined Swain v. Alabama, Batson v. Kentucky’s precursor, where the court’s holding made it almost impossible for a defendant to prove racial discrimination in the jury selection process. The author further reviewed Batson as a basis of understanding how the use of peremptory strikes are challenged after Swain, and Flowers v. Mississippi to demonstrate the problems that the use of peremptory challenges present. Additionally, accepted race-neutral reasons asserted during Batson inquiries in several federal cases were investigated to determine if they were in fact race-neutral. Through a thorough review and analysis of federal case law surrounding the discriminatory use of peremptory strikes, the author found that peremptory challenges are used to exclude Black prospective jurors from jury service. Furthermore, the author found that Batson is ineffective in addressing claims of race-based discrimination. The author proffers that if jury service is one of the most important civic duties, the process should be free of racial discrimination. Abolishing the use of peremptory challenges is one way to begin to eradicate racial discrimination in the jury selection process.

Problems of the practice of the dismissal of the jury due to the tendentiousness of the composition: the effect of a legislative error or defects of judicial practice?

The article examines problematic issues of theoretical understanding, legislative regulation and application in judicial practice of the criminal procedure the institute of the dismissal of the jury in view of its tendentiousness. The article notes that this institution is not implemented in judicial practice in a positive aspect, since all variations for the manifestation of a possible tendentiousness of the collegium are rejected by appeal and cassation courts. It is concluded that there are two irreparable contradictions in the basis of the procedural consolidation of this institution, which determine the ineffectiveness of its positive application. The first contradiction, considered in the article, arises between the need to motivate the application for the dismissal of the jury in view of its tendentiousness and the amorphousness (uncertainty) of the grounds for such a group challenge. The second contradiction arises between the absence of grounds for peremptory challenge of each of the candidates for jury and the existence of grounds for the dismissal of the jury as a whole. The article concludes that the institution under consideration does not adequately fulfill the function of a legal means ensuring the impartiality and objectivity of the jury, and should be excluded from the legislative model of proceedings in the jury trial of the Russian Federation.

Confronting the Bias Dichotomy in Jury Selection

This article, an invited paper for the Louisiana Law Review's 2020 We the Jury symposium, examines the bias dichotomy in jury selection. On the one hand, the law seeks to identify and remove jurors with explicit or implicit biases that can deny a party a fair trial. The peremptory challenge historically has served as an important tool for parties to address these juror biases, in particular implicit juror biases that often fall below the radar of challenges for cause. Yet, on the other hand, the law increasingly has acknowledged how lawyers deploy their own improper biases against jurors during jury selection. The peremptory challenge has been an especially effective, and harmful, tool for lawyers to operationalize their own improper biases. Several commenters and judges have again called for elimination of the peremptory challenge to resolve this bias dichotomy, in large part due to the failures of the Batson rule to detect and deter discriminatory strikes. This paper examines and credits the persuasive arguments in support of this position. But this paper also cautions against such a binary solution to this bias dichotomy if criminal defendants go along for this ride–and the law so far has remained largely symmetrical between the prosecution and defense in anti-bias jury selection rules. The paper considers durable virtues of the peremptory challenge for individuals defending against the State in an adversary system that remains deeply imbued with its own systemic and individual biases. These virtues may still justify the peremptory challenge in some form, despite their acknowledged vices. The paper concludes by championing emergent non-binary solutions to the bias dichotomy with which different jurisdictions are experimenting. For example, the Washington Supreme Court recently adopted General Rule 37, which significantly revises the Batson rule better to reach and remedy both explicit and implicit lawyer bias in exercising peremptory challenges. These nuanced approaches, the paper argues, may permit the law more effectively to regulate the vices of the peremptory challenge while preserving its virtues, particularly for criminal defendants.

The Impact of Minimal versus Extended Voir Dire and Judicial Rehabilitation in Civil Cases

Objectives: Three experiments tested the utility of minimal versus extended voir dire questions in predicting mock jurors’ verdicts and damage awards, and whether the biasing impact of their preexisting attitudes on case judgments could be reduced by judicial rehabilitation. Hypotheses: We hypothesized that extended voir dire questions would be more predictive of case judgments than minimal voir dire questions. We hypothesized that judicial rehabilitation would not reduce this impact of preexisting attitudes on case judgments. Method: Across three experiments, each focusing on a different civil case (insurance bad faith, wrongful birth, medical malpractice misdiagnosis), online participants (N=2,041; 62% female; 77% White, 9% African American, 6% Asian/Pacific Islander, 6% Hispanic or Latino/a; Mage=40) were paid Mturk workers. They were randomly assigned to experience (a) no voir dire, minimal voir dire focusing on previous legal experience and self-identification of biases, or extended voir dire focusing on specific attitudes about civil litigation, parties, and laws, before judging the case and (b) no judicial rehabilitation, or judicial rehabilitation. Participants read a civil case, made case judgments, and completed bias awareness measures. Results: Demographic information and minimal voir dire questions did not predict case judgments, but the majority of extended voir dire responses predicted verdicts and damage awards. Judicial rehabilitation did not reduce the biasing impact of their preexisting attitudes on case judgments—but did result in mock jurors reporting that they were less biased, despite judicial rehabilitation not actually reducing their bias. Conclusions: Attorneys need the opportunity during voir dire to ask jurors about specific attitudes that might bias their decisions because relying on jurors’ self-identification of their own biases has little utility. Further, although judicial rehabilitation might make jurors think that they are less biased, it may not actually reduce the impact of their preexisting attitudes on their case decisions. Public interest statement: Contrary to popular belief, juror biases are not likely to be cured by judicial rehabilitation, and might backfire by creating the illusion in jurors that they are unbiased. Although very few mock jurors were able to self-identify things that might bias them when asked general questions in voir dire, they were willing to admit specific attitudes that biased their verdicts and damage awards when asked. Thus, we suggest reducing bias on juries by allowing attorneys to ask specific, detailed voir dire questionnaires crafted by the parties to streamline the jury selection process and remove jurors for cause or via peremptory challenges, rather than relying on “quick fixes”, such as general questions that ask jurors to self-identify their own bias or judicial rehabilitation.

“We have centuries of work undone by a few bone-heads”: A Review of Jury History, a Present Snapshot of Crown and Defence Counsel Perspectives on Bill C-75’s Elimination of Peremptory Challenges, and Representativeness Issues

“We have centuries of work undone by a few bone-heads”: A Review of Jury History, a Present Snapshot of Crown and Defence Counsel Perspectives on Bill C-75’s Elimination of Peremptory Challenges, and Representativeness Issues

Gender and the Peremptory Challenge: Separating the Effects of Race and Gender in Jury Selection

Gender- and race-based discrimination in jury selection is unconstitutional in the United States. Nevertheless, court cases and empirical evidence suggest that discrimination on such characteristics, especially race, continues to occur through peremptory challenges. Statistical evidence of the gender effect, however, is more limited and has not previously incorporated controls in race-specific analyses to address non-gender-based explanations for gender differences. The present study examines gender differences in peremptory challenges using data from criminal jury trials in Mississippi. Race-specific analyses and propensity score matching are used to isolate the impact of gender from other measurable effects. Results indicate weak and non-significant gender differences for peremptory challenges used by the prosecution, and weak-to-moderate and non-significant gender differences for peremptory challenges used by the defense. This suggests that gender differences in the use of peremptory challenges may be the result of racial differences and other factors rather than a true gender-based effect.

Resolving ALJ Removal Protections Problem Following Lucia

When the Supreme Court decided Lucia v. SEC and held that administrative law judges (ALJs) are Officers under the Constitution, the Court opened a flood of constitutional issues around the status of ALJs and related government positions. One central issue relates to ALJs’ removal protections. ALJs currently have two layers of protection between them and the President. In an earlier Supreme Court decision, the Court held that two layers of tenure protection between an “Officer of the United States” and the President was unconstitutional as it deprived the President the power to hold his officers accountable. As impartial adjudicators, ALJs need those layers of protection to ensure fair adjudicative hearings. Lucia now threatens ALJ protections. This Note argues that implementing a peremptory challenge system which would allow each party in an adjudicative hearing to remove the ALJ from hearing its case would create an avenue in which the Court could justify the removal issue. Such a proposal would fix executive oversight concerns about the President being unable to properly implement his policy. Additionally, peremptory challenges would allow litigants in front of an agency be able to remove ALJs they feel are predisposed to the agency. By addressing both constitutional issues, the Court may be more likely to find that the two layers of tenure protection in place are permissible for those in adjudicatory positions.