Deselecting Biased Juries
Critics of peremptory-challenge systems commonly contend that they inevitably inflict inequality harm on many excused persons and should be abolished. Ironically, the Supreme Court fueled this argument with its decision in Batson v. Kentucky, 476 U.S. 79 (1986), by raising and endorsing the inequality claim sua sponte and then purporting to solve it with an approach that preserved peremptories. But the article shows that something other than inequality harm to excused persons is actually the central problem. The Court in the Batson cases only obliquely confronted it, because constitutional rulings cannot appropriately resolve it. That problem is the harm to disadvantaged litigants when their opponents use peremptories to secure a one-sided jury. The problem can arise often -- whenever a venire is slanted in favor of one of the parties. The advantaged litigant can use peremptories to seat a large group of favorable jurors regardless of how the disadvantaged litigant exercises its peremptories. However, there is a remedy. Peremptory systems reflect the idea that parties acting in their self-interests can help pursue group neutrality on a jury. Similarly, by conferring on litigants a right to stop peremptories at any time, states can enlist them to determine when opposing parties are using peremptories to promote group bias.
The Impact of Jury Race in Criminal Trials
This paper examines the impact of jury racial composition on trial outcomes using a unique data set of felony trials in Florida between 2000 and 2010. We utilize a research design that exploits day-to-day variation in the composition of the jury pool to isolate quasi-random variation in the composition of the seated jury, finding evidence that: (i) juries formed from all-white jury pools convict black defendants significantly (16 percentage points) more often than white defendants and (ii) this gap in conviction rates is entirely eliminated when the jury pool includes at least one black member. The impact of jury race is much greater than what a simple correlation of the race of the seated jury and conviction rates would suggest. These findings imply that the application of justice is highly uneven and raise obvious concerns about the fairness of trials in jurisdictions with a small proportion of blacks in the jury pool.
Race-Based Judgments, Race-Neutral Justifications: Experimental Examination of Peremptory Use and the Batson Challenge Procedure
Practically speaking, the peremptory challenge remained an inviolate jury selection tool in the United States until the Supreme Court's decision in Batson v. Kentucky. 476 U.S. 79 (1986). Batson‘s prohibition against race-based peremptories was based on two assumptions: (1) a prospective juror's race can bias jury selection judgments; (2) requiring attorneys to justify suspicious peremptories enables judges to determine whether a challenge is, indeed, race-neutral. The present investigation examines these assumptions through an experimental design using three participant populations: college students, advanced law students, and practicing attorneys. Results demonstrate that race does influence peremptory use, but these judgments are typically justified in race-neutral terms that effectively mask the biasing effects of race. The psychological processes underlying these tendencies are discussed, as are practical implications for the legal system.