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(formerly the Persuasive Litigator blog)

Save the Strikes: ASTC’s Research-Based Case Against Prohibiting the Peremptories

By Dr. Ken Broda Bahm:

The last few years have seen a societal turn toward identifying and addressing systems that institutionalize discrimination based on race, gender, and other demographic traits. That attention is obviously a good thing. But one issue that has been caught up in that trend has been a call to eliminate the peremptory strike in civil and/or criminal cases. Several states are looking at the move, and Arizona has been the first in actually eliminating peremptory strikes in all jury trials. The argument has been that, because peremptory challenges have been used to discriminate, and because the standards laid down to prevent that abuse haven’t tended to work, it is better to simply eliminate the problem by ending the practice.

The American Society of Trial Consultants has taken a detailed look at the issue, and recently issued its ASTC Position Paper on the Elimination of Peremptory Challenges: And Then There Were None…. The report came out at a time last Summer when this blog was temporarily dark, but I wanted to now take the chance to highlight some of the novel conclusions of the report as a way of encouraging judges, attorneys, consultants, and others who work in America’s court system to review the position paper itself. The report includes resources, like a successful motion in Washington State to expand voir dire and implement many of the panel’s recommendations. Beyond making the case on peremptory challenges, the report also does a good job of laying out what the best practices ought to be in conducting voir dire, even in venues where the strike isn’t threatened. Here is a short version of the main conclusions.

Eliminating Peremptories Won’t Diversify Juries: 

The explicit rationale for limiting or eliminating the strike is to diversify juries and guarantee the rights to a representative cross section of the population. Since 36 years of experience with the rulings in Batson and its associated cases, critics have concluded that it is simply too easy to bypass a prohibition on discriminatory strikes by coming up with “neutral” reasons. That criticism seems fundamentally on point, but the problem is that there is little to no evidence that cutting out peremptory strikes would diversify juries. The reasons for that are two-fold:

    • Structural factors upstream of the voir dire process are the main reasons for a lack of representativeness on juries: inaccurate lists, summons procedures that miss many, and selection processes that many find difficult to attend.
    • Research shows that the demographic effect of strikes by both sides tend to cancel themselves out, meaning that juries without strikes will end up being demographically comparable.

Eliminating Peremptories Will Make It Harder to Address Bias 

While cutting strikes is not likely to lead to more diverse juries, it will make it more difficult to eliminate jurors who carry strong biases against one side or the other. The reasons for this, all supported by referenced social science, are:

    • There is little consistency from judges on the standards for a cause challenge.
    • Judges too often rely on a juror to self-diagnose their own biases.
    • Judges and counsel rely too much on a simple promise to not be biased.
    • Even after cause challenges, there will still be jurors for whom there is a clear basis to suspect their fairness but who won’t declare their bias or won’t stay consistent with a disqualifying statement that they can’t be fair.
    • Ultimately, there is no version of expanded cause strikes that would address the reasons for peremptory strikes without becoming peremptory strikes by another name.

There’s a Better Way 

None of this creates a reason to simply accept the discriminatory use of peremptory challenges, but do underscore the reasons to not throw the baby out with the bathwater. Research and practical experience both point to the existence of better ways to conduct voir dire that would dramatically limit the discriminatory use of strikes. Those solutions include:

    • Diversify juror lists, streamline the summons process, consider online jury selection to make the process less onerous and time-consuming for a broader cross-section.
    • Restore the jury-size to 12 in most cases so the juries are more diverse after selection is done.
    • Strengthen Batson requirements to make it harder to exercise discriminatory strikes based on demographics, for example, by shifting the burden of proof to the party using the strike.
    • Don’t rely on conscious awareness alone or on promise to control a bias.
    • Treat bias as a spectrum, not as a dichotomy
    • Don’t “prehabilitate” or signal to jurors in advance what their “correct” answer should be.
    • Limit reliance on “rehabilitation,” since recent research shows that it is unlikely to work.
    • Allow counsel to obtain meaningful case-issue-specific information about attitudes and experiences by conducting their own voir dire and by asking open-ended questions.
    • Conduct a pretrial conference to identify the case-related issues that might give rise to bias and discuss best practices for allowing attorneys to explore those attitudes and experiences.
    • Use supplemental juror questionnaires to provide jurors with a safer space for acknowledging issues that might relate to bias and for identifying hardships.
    • Set an in-court climate that encourages disclosure, and a focus on honest inquiry rather than indoctrination or obedience.
    • Allow mini-openings, not so counsel can pre-argue the case but so they can set a more meaningful context for voir dire.
    • Give jurors concrete examples or models on the kinds of opinions or strong experiences and feelings that are relevant in voir dire.

Emphasizing these practices, changing court rules to encourage them, and training attorneys on their best uses is an approach that works because it offers a chance to exchange what is empirically a very low-value strategy of basing strikes on demographics (which actually carry very little predictive power), with the higher-value strategy of basing strikes on the case-specific attitudes and experiences that are far more likely to matter in the context of a given case. The more we understand about the power and elusiveness of cognitive biases, the more important it becomes to not only defend peremptory strikes, but to make the best use of them as well.

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Other Posts on the Threat to Strikes: 

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