Use Of Peremptory Challenges Research Articles

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.

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.

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.

Avoiding the Fire Next Time: Foster v. Chatman and the Inevitability of Peremptory Prejudice

Thirty years after the United States Supreme Court decision in Batson v. Kentucky, countless misapplications of Batson have allowed the racially motivated use of peremptory challenges to plague our jury system. This notion is one that Justice Marshall’s forewarned us of in his concurring opinion in Batson, where he reasoned, “The decision today will not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.” Although the United States Supreme Court’s finding in Foster v. Chatman that the State’s peremptory strikes of two black prospective jurors were racially motivated, this casenote discusses how the fact-specific majority opinion fails to expand the protections of Batson and furthers the insidious racism that peremptory strikes infect into the jury-selection process. The author concludes that we are left with no choice, as a government of law and not men, but to acknowledge Justice Marshall’s prophetic warnings in Batson, and remove peremptory strikes from our jury-selection process entirely.

Racial Discrimination and Jury Selection

In an effort to eliminate a long history of racial discrimination in jury selection, the U.S. Supreme Court held in Batson v. Kentucky, 476 U.S. 79 (1986), that jurors cannot be excluded on the basis of race through a prosecutor’s use of peremptory challenges. Despite that ruling, racial discrimination in jury selection has remained a persistent problem. In May 2016, the U.S. Supreme Court decided yet another case, Foster v. Chatman, finding that prosecutors’ use of peremptory challenges to exclude all eligible potential African American jurors to achieve an all-white jury in Georgia violated Batson. That jury sentenced 18-year-old Timothy Foster, an African American man, to death for the murder of an elderly white woman. Nearly 30 years later, the Court concluded that the prosecutors were motivated in substantial part by race when they struck two potential jurors from the jury. Emphasizing the seriousness of racial discrimination in jury selection, the Court admonished: “Two peremptory strikes on the basis of race are two more than the Constitution allows.” The Supreme Court may have granted Foster a new trial based on Batson, but that is unlikely to stop racial discrimination in jury selection. Since the Court decided Batson 40 years ago, issues of racially motivated use of peremptory challenges frequently arise. In that time, several cases have reached the Court, and countless more have gone to state and federal courts of appeals. In view of the intractable problem presented by the use of peremptory challenges, commentators have recommended a variety of solutions to eliminate racial discrimination in jury selection and achieve more inclusive and representative juries. In this ethics column, we explore the problems with Batson as a constitutional rule as well as the legal ethics of racial discrimination in jury selection. We also consider alternatives to peremptory challenges, and conclude by endorsing alternatives to the current system of peremptory challenges as the best alternatives to curb racial discrimination in jury selection.

국민참여재판에서 배심원후보자 기피신청절차 개선방안 연구

Historically the evolution of the English jury from the middle ages to the french revolution caused the jury trial right to become the antimonarchist movements on the world. In Europe the jury trial was replaced by other models of lay adjudication. Especially Germany utilized a mixed court comprising a panel of one professional judge and two lay assessors collegially deciding all matters of law. In America the current jury selection procedures are guaranted by the amendments to the constitution and producing jury panels by the vior dire process. The prospective jurors without impartiality may be challenged for the cause or peremptory. The use of peremptory challenges is scrutinized to result in decreased legitimacy for the criminal justice system. From ancient times the court has been involved in the Jury Selection Procedure. It is quite right for the judge to controll the process of the jury selection. However it happens frequently that the judge would erroneously decide the use of challenge for cause or a peremptory challenge. Nevertheless during the Korean National Participation in Criminal Judicial Process it is insufficient or lack of appeal procedures in the challenging system. Therefore in Korea``s Jury Trial System it might be proper to strengthen the appeal procedure for the litigants. Thus the procedure should be reformed if the judge``s erroneous decision about the use of a challenge for cause or a defendant fails to cure a cause error with an available peremptory challenge. As a result it is important to increase the effectiveness of questioning in exposing prejudiced jurors. Then that kinds of reformation ways would serve for securing the impartiality of the Korean jury selection system and acquiring a more credibility of the Korean lay participation system.

The Big Data Jury

This article addresses the disruptive impact of big data technologies on jury selection. Jury selection requires personal information about potential jurors. Current selection practices, however, collect very little information about citizens, and litigants picking jury panels know even less. This data gap results in a jury selection system that: (1) fails to create a representative cross-section of the community; (2) encourages the discriminatory use of peremptory challenges; (3) results in an unacceptably high juror “no show” rate; and (4) disproportionately advantages those litigants who can afford to hire expensive jury consultants. Big data has the potential to remedy these existing limitations and inequities. Big data technologies offer a highly personalized, current, and targeted mechanism for locating citizens in a particular jurisdiction. Big data companies have been collecting public and quasi-public information about most American’s consumer, financial, health, political, and personal interests for years. For courts, the availability of real-time, personally targeted data provides the potential for algorithmically-precise representative jury venires and more efficient jury summonsing practices. This collected personal data also can be quite revealing about attitudes, inclinations, and interests. For litigants, the available information could provide a wealth of insights once only available from expensive jury consultants. Big data has the potential to democratize information about jurors leading to less discriminatory jury selection practices. Big data information, thus, has the potential to revolutionize how jury pools are selected and jury panels are picked. Yet, adoption of big data technology carries real risks. Traditional jury roles and values, including the continued legitimacy of the jury system, itself, are at stake. Increased big data collection of personal information involves an invasion of privacy that could result in significant backlash against jury service. Affirmative targeting of jurors also presents thorny constitutional issues, as considerations of race, gender, or ethnicity could run into equal protection problems. Equalizing the availability of big data information about jurors, and making it a part of the jury selection system, raises practical, theoretical, and constitutional dilemmas all of which are addressed in this article.

Ethnicity and Court Processes: An Archival Review of Adjudicated Jury Trials

Many studies point to the influence of 1 variable as a potent factor that influences case outcomes: race/ethnicity. Much remains to be learned about how race/ethnicity affects court processes. To advance understanding of the impact of race/ethnicity on court processes, we collected archival data from sources such as police arrest reports, indictments, venire lists, and judicial instructions maintained in files from the district clerk's office. This research serves as a partial replication of H. C. Daudistel, H. M. Hosch, M. D. Holmes, and J. B. Graves's (1999) work. Important results were obtained for the relationship between ethnicity and the following variables: the use of peremptory challenges, foreperson selection, and the decision to testify. These findings have implications for the legal system, intergroup relations, and ethnic/gender stereotyping.

Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military

This article address the method used in the military court-martial system to select jurors (referred to as panel members). Under military law, the panel members who sit in judgment of a military service member are hand picked by the court-martial convening authority. The question often raised in how is a fair trial possible when the very person who determines if there should be a trial at all, and if so, what charges should be brought, is also the person who gets to hand-pick the people responsible for deciding guilt? Often the court-martial convening authority is the senior military officer on the base. If the convening authority determines that the charges should go to trial, can we really expect the military subordinates he selected to serve as panel members to exercise an independent evaluation of the case? Nonetheless, this is the very system that exists in the military today. This article addresses this issue and offers a proposed change – not to the military’s panel selection system itself, but through an expansion of the accused’s rights to exercise peremptory challenges as a means of addressing the potential for unfairness and the threat of panel member-stacking. Part I of the article explores the current law associated with panel member selection, and the rationale behind this system. It examines the most common criticisms of this selection process, the solutions that have been proffered to date, and why those proposed solutions have failed to take hold. Part II looks at the law of challenges for cause and peremptory challenges. It focuses specifically on the historical development of peremptory challenges within the military and how the system of peremptory challenges currently operates. Part III proposes an expanded use of peremptory challenges for the military accused. Specifically, this part addresses how the selection process should be modified, the costs and benefits of such a modification and why this proposed change strikes an appropriate balance between the rights of the accused and the unique needs of a military justice system. In the final part, the article addresses the likely criticisms of this proposal.

Bias in jury selection: justifying prohibited peremptory challenges

AbstractThe United States Supreme Court has restricted attorneys from considering the gender and race of potential jurors in their use of peremptory challenges—the practice by which jurors may be removed from a jury without explanation or evidence of potential bias. We propose that forbidding peremptories based on social category information not only fails to decrease biased jury selection, but also encourages attorneys to search—successfully—for neutral justifications for their biased decisions. In Study 1, participants who acted as prosecutors in a jury selection paradigm eliminated female jurors more often than male jurors, but then justified these biased choices by citing gender‐neutral information. Troublingly, Study 2 showed that explicit instructions against the use of gender failed to eliminate selection bias, and in fact resulted in even more elaborate justifications. Copyright © 2007 John Wiley & Sons, Ltd.

<em>Hernandez v. Texas</em>: Legacies of Justice and Injustice

<em>Hernandez v. Texas</em>: Legacies of Justice and Injustice

The Non-Discrimination Ideal of Hernandez v. Texas Confronts a "Culture" of Discrimination: The Amazing Story of <em>Miller-el v. Texas</em>

This Article adds another voice to the body of literature calling for the abolition of the use of peremptory strikes in order for racial discrimination in jury selection to be eradicated. The Article begins in Part I with a brief review of the history of racial discrimination in jury selection from the nineteenth-century to the 1950s. It traces the development of the Supreme Court's non-discrimination principle as applied in cases in which African-Americans were systematically excluded from jury service. Part II of the Article highlights the importance of Hernandez v. Texas as the first case to broaden the non-discrimination concept to include all identifiable groups. This part describes the evolution of the Court's non-discrimination jurisprudence as it extended its reach to include ethnic minorities and women. The constitutional protections against discrimination in jury selection even include a fair cross-section requirement, but this requirement only applies to the creation of jury lists and does not place any limits on the use of peremptory challenges in selecting actual jurors. The last section of Part II provides an empirical analysis of appellate case law reviewing claims of discrimination to determine whether Batson's three-part rule appears to provide an effective remedy for discrimination in the use of peremptory strikes. In Part III, the Article tells the amazing story of Miller-El v. Texas, a case that has the potential to change the course of jury selection toward the realization of diverse juries, but which also has the potential to be a testament to the failure of Batson to eradicate discrimination in voir dire.

Hernandez v. Texas: Legacies of Justice and Injustice

Hernandez v. Texas: Legacies of Justice and Injustice

The donation paradox for peremptory challenges

A donation paradox occurs when a player gives an apparently valuable prerogative to another player, but ‘does better’, according to some criterion. Peremptory challenges, used in choosing a American jury, permit each side to veto a certain number of potential jurors. With even a very simple model of jury selection, it is shown that for one side to give a peremptory challenge to the other side may lead to a more favorable jury, an instance of the donation paradox. Both a theorem and examples are given concerning the existence of the donation paradox in the optimal use of peremptory challenges.

A quota jury: affirmative action in jury selection

It is not too naive to believe that the use of affirmative action policies in the jury selection for the Rodney King beating trial of White police officers would have prevented the uprisings that followed their acquittal. The public outrage and riots that followed the verdict demonstrated the need for affirmative inclusion of racial minorities on jury trials to preserve and restore the public’s confidence and legitimacy of verdicts in racially motivated cases. While racially mixed juries offer many benefits, current jury selection procedures fail to provide much protection to members of racial minorities in criminal trials. From the source list to the discriminatory use of peremptory challenges, the current selection procedures provide almost no protection to racial minorities. The issue of preferential treatments of racial minorities in education, employment, and business has divided the nation and even some minority communities themselves. Affirmative action in jury proceedings and trials, however, has yet to receive much deserved attention and critical scrutiny. This article empirically examines public perceptions of possible applications of affirmative action mechanisms in criminal jury proceedings, focusing on the uses of mandatory racial quotas to engineer racially integrated juries in criminal trials. Three different types of racially mixed juries—the jury “de medietate linguae,” the Hennepin jury model, and the social science model—are examined, and the public’s perceptions of affirmative mechanisms ensuring minority participation on juries are analyzed. This article argues that the affirmative mechanism to secure racially mixed juries is essential to both the appearance and substance of fairness in criminal jury proceedings, and both the Hennepin model and the social science model are overwhelmingly supported as the ideal types of affirmative jury structures in creating racially heterogeneous juries.

The swain case as a model of institutional racism

This article is a social science critique of the institutional discrimination practiced by prosecutors through the use of peremptory challenges of potential jurors legitimated by the U.S. Supreme Court in Swain v. Alabama (1965). From 1965 until 1986, the wholesale removal of minorities from jury pools was protected under the Swain doctrine, which defined discrimination in the selection of jurors through peremptory challenges as illegal only if it involved the total and complete removal of all Blacks from venire pools. Although the federal courts were often viewed as protectors of minority rights during the 1960s, 1970s, and 1980s, the Swain doctrine allowed all‐White and mostly White juries as long as they did not involve the removal of all minorities from jury pools. Swain erected a barrier through its burden of proof that made it extremely difficult to prove that racial discrimination had occurred. The Swain threshold of total discrimination became much more difficult to meet as society became more integrated.

What Difference Does It Make - Gender and Jury Selection

This Article critically examines the arguments for extending a Supreme Court holding, which declared the use of peremptory challenges to exclude jurors based on their race violated the Equal Protection Clause, to gender and the arguments for eliminating peremptory challenges altogether. The author reviews the history of women’s exclusion from jury service, the development of the Supreme Court holding, and recent cases regarding whether the Supreme Court holding should be extended to gender. Furthermore, it discusses theoretical and empirical aspects of the role of gender in the jury process and examines problems inherent to the Supreme Court holding generally as applied to gender discrimination. Lastly, this Article proposes an argument for proportional representation to protect gender equality in jury selection in contrast of gender exclusion.

Equal Protection. Jury Selection. Eleventh Circuit Restricts the Discriminatory Use of Peremptory Challenges in Civil Litigation. Fludd v. Dykes, 863 F.2d 822 (11th Cir. 1989)

Equal Protection. Jury Selection. Eleventh Circuit Restricts the Discriminatory Use of Peremptory Challenges in Civil Litigation. Fludd v. Dykes, 863 F.2d 822 (11th Cir. 1989)

Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial

Limiting a Criminal Defendant's Use of Peremptory Challenges: On Symmetry and the Jury in a Criminal Trial