By Dr. Ken Broda Bahm:
The ability to remove a potential juror from your jury without giving a reason is precious…to trial attorneys and their consultants. To the extent the rest of the public is aware of peremptory strikes, however, they’re less likely to support them. At first blush, after all, the ability to prevent someone from serving their constitutional role without saying why seems arbitrary at best, and a gateway to racial or other biases at worst. Even among those in more knowledgeable circles, the peremptory challenge seems to be losing support. At the Civil Jury Project conference this Fall, Yale University’s well-known law professor Akhil Amar called the existence of peremptory strikes “a disgrace,” with no constitutional basis. In a recent piece on National Public Radio, veteran court-watcher Nina Totenberg comments that “Most experts say,” the only way to address systemic racial bias in jury selection, “would be to eliminate or drastically limit peremptory strikes.”
Totenberg goes on to add that this step is unlikely, but only because peremptories are such an ingrained preference among trial lawyers. But that preference hasn’t made it immune to criticism, particularly with the U.S. Supreme Court taking up the issue in the case of Timothy Foster in Georgia, one of many cases where prosecutors seem to have used their strikes to disproportionately remove black prospective jurors. Given that there is no specific constitutional protection for peremptories, the Court could reason that defendants’ rights to a jury of their peers outweighs the interests that support the peremptory challenge. The Court isn’t likely to be influenced by this humble blog, but there is an important public debate taking place. Whether the Court moves to limit or to leave in place the procedure allowing strikes without cause, litigators and consultants should be making a better case for the peremptory strike. For example, in a recent article in The Jury Expert, well-known trial consultant Richard Gabriel provides a cogent explanation of problems and solutions associated with the use of peremptory challenges. I’d like to build on that in this post.
The peremptory strike is facing a substantial, perhaps even an existential threat. But it remains worth fighting for. Let’s look at a few reasons on both the problem and the solution side.
Why Are Peremptories in Trouble?
Because They’re Viewed as a Tool for Racial Bias
The main problem with the current public view of the peremptory strike is that it is seen primarily as a prosecutor’s way of keeping blacks off the jury in order to reduce the risk of a jury “nullifying” the conviction or sentencing of black defendants. As much as the stance lacks support, either in social science or law, there is evidence that some prosecutors operate in exactly that manner. A recent study reported in the New York Times showed, for example, that in Louisiana’s Caddo Parish, prosecutors in the last decade have used peremptory challenges three times more often against blacks than against whites.
Because We Have a Misplaced Faith in the Effectiveness of Voir Dire for Cause
In most courts, the idea of “bias” is understood only as aware, explicit, and admitted bias. “Bias” means the potential juror who I witnessed sitting in chambers with two black attorneys, and a black judge and simply explained, “I just don’t like blacks.” Even then, the question will be (as it was in his case) whether the potential juror can “set that aside” for the purposes of this case (He couldn’t). For removing that kind of bias, the system works just fine. The problem is that this is a very unusual type of bias. More often, bias is subtle, lacking awareness, without explicit articulation, and unaccompanied by the confidence it takes to admit to it in open court. In those more common settings, the traditional cause challenge simply does not work.
Because We Have Done a Poor Job of Explaining Why They’re Necessary
The naive view on strikes is that if someone truly can’t be fair, you should just make that argument to the court. The only reason for removing for an undisclosed reason would be that there is something wrong with the reason. For those who live and work outside the jury trial system, it can be hard to understand why parties would need peremptories. And that is where trial lawyers and those who work with them have not fulfilled their advocacy burden: We have not done a good job of explaining the benefits of a peremptory strike.
Why Are Peremptories Still Worth Preserving?
Because Peremptory Challenges Increase Fairness in Trial
There is a proper historical purpose to the peremptory challenge, and it has nothing to do with racial discrimination. The reason for peremptories is the closest that our legal process comes to an accurate understanding of psychological bias. The best rationale for peremptory strikes is found in a recognition that true bias often lies beneath the threshold for a cause challenge. Potential jurors can harbor powerful attitudes and biases that they either aren’t able or willing to articulate to the point that it becomes a clear reason why they couldn’t be fair. That would likely still be so even if enlightened courts substantially expanded the scope of removal for cause. There would still be factors which would look innocuous to a neutral judge, but would and should make one side or the other uncomfortable. As Richard Gabriel notes, “The elimination of peremptory challenges would, in fact, harm the rights of the parties to obtain a fair and impartial jury.”
Because Focusing on Peremptories Misses the Real Problem in Jury Selection
To the untrained legal observer, it might seem on face that taking the first eight or twelve people who aren’t friends or employees of either of the parties would be a more fair way to select jurors. But any small-group decision-making process is jeopardized by the presence of bias on the panel. Anyone who has ever watched mock jury deliberations knows well that a single individual with an ax to grind can exert tremendous influence over a group. If we eliminated peremptories just because dealing with peremptories is difficult, that would be choosing ease over fairness. As Richard Gabriel notes, it’s a “wrong-headed solution to a very real problem that does exist in today’s jury selections across the country.” The real problem, in his view and mine, is an inadequate understanding of bias and a failure to allow or to use the proper style of questioning needed to uncover that bias.
Because Improved Voir Dire Conditions Would Address the Worst Problems Associated with Peremptory Strikes
When time for oral voir dire is limited, or when attorneys blow that time on “preconditioning” the jury for their case and extracting promises to “be fair,” then attorneys are left with nothing but their own biases on which to base strikes. In truth, prosecutors aren’t trying to avoid blacks on their juries, they are trying to avoid those who would automatically distrust law enforcement and who would willingly ignore facts in order to avoid giving prison time to another black defendant. Instead of using race as a (highly-imperfect) proxy, it is better to explore the ways of effectively questioning on the actual attitudes. Gabriel’s approach is to encourage attorneys to identify the high risk issues, ask open-ended questions about those issues, ask follow-ups and challenging questions to get to deeper attitudes, and then spend the bulk of their time on open-minded listening.
This is an issue for litigators to watch, since it is likely that the Court’s upcoming decision in Foster, as well as the attendant public awareness, will influence the acceptability of peremptory strikes generally and not just in the context of criminal prosecutions. Both the drawbacks and the benefits of peremptories deserve more investigation and study. As Richard Gabriel notes in his conclusion: “We should seek to fully understand and improve this important procedural safeguard before we decide to get rid of it.”
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Other Posts on Threats to Fair Trial:
- Select Your Jury on Race-Neutral Criteria
- Balance the Trial Consulting Scales
- Fight for the Civil Jury
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Gabriel, R. (2015, August). Thank and Excuse: Five Steps Toward Improving Jury Selection. The Jury Expert 27: 3.
Photo Credit: 123rf.com, used under license