Peremptory Challenges

During the jury selection process, attorneys may request that a potential juror be stricken for cause, e.g. the juror is related to the defendant. Attorneys also have a limited number of peremptory challenges, typically between 3 and 20 depending on the state and the seriousness of the charges, which are essentially accepted without question. In Batson v. Kentucky the Supreme Court ruled that peremptory challenges may not be based solely on race but it’s widely acknowledged that Batson has no teeth because attorneys can easily come up with pretexts–which need not rise to the level of causes–to strike.

Next month the Supreme Court will revisit peremptory challenges and race. I don’t have strong opinions on the issue, although a small number of peremptory challenges seem fine to me, if only to keep the system moving and reduce the time and resources spent on jury selection. One reason I don’t have strong opinions is that I don’t think peremptory challenges are as biased as a NYTimes article seems to suggests.The NYTimes article, for example, never mentions that defendants also get peremptory challenges!  A second more subtle reason is that diversity of the jury pool constrains the jury even when there are no minorities on the jury. Here, from an earlier post, I comment on the findings of The Impact of Jury Race in Criminal Trials:

What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants but the presence of just a single black person in the jury pool equalizes conviction rates by race. The effect is large and remarkably it occurs even when the black person is not picked for the jury. The latter may not seem possible but the authors develop an elegant model of voir dire that shows how using up a veto on a black member of the pool shifts the characteristics of remaining pool members from which the lawyers must pick; that is, a diverse jury pool can make for a more “ideologically” balanced jury even when the jury is not racially balanced.

Thus, diversity of the jury pool may be as important as diversity of the jury–in a way that’s fortunate since it’s easier to make the jury pool diverse (as we have done with required randomization) than the jury. Instead of eliminating peremptory challenges, I’d raise their cost. For example, suppose that both sides get 3 “free” peremptory challenges but if they wanted one more they would have to give two to the opposing side.

Addendum: Justice Kavanaugh has written in favor of restricting peremptory challenges.

Comments

Can we just make sure jurors are only picked from people who've taken a class in criminal law?

"Have you reached a verdict?"
"We have, your Honor. We find the case interesting."

+1

I have had to show up for jury duty half a dozen times but never get picked for jury duty. The ask my education level and a masters degree always makes them reject me. I think they prefer high school dropouts.

so the flowers case-
after six trials, multiple acts of prosecutorial misconduct, and not so much evidence there is a death penalty conviction 14 years after the crime?

its getting to the point
where the middle class can't point out half a dozen big outliers to the sociology dept. without being insulted?
Remember what we've said and done and felt
About each other
Oh babe, have mercy
Don't let the past remind us of what we are not now
I am not dreaming.
I am yours, you are mine
You are what you are
And you make it hard

Wirklich lachhaft.

?también más de un testigo
que se retractó de su testimonio original?

More useful information would be how to get out of jury duty.

Defendants and lawyers' interests are to empanel jurors that they believe will help their cases/clients.

Race could be in the equation.

Also, in evil, racist America a black man can't find a white attorney to defend him.

u wanna useful information would be how to get out of jury duty?
- wear a maga hat

"What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants".

I can not imagine a Brazilian jury condemning people for being Black. The KKK is alive and well in Trump's America.

'The KKK is alive and well in Trump's America.'

Well, not quite, but they may night ride again - 'Time for the Ku Klux Klan to night ride again,” began a Feb. 14 editorial in the Democrat-Reporter. It went on to claim that Democrats, along with some Republicans, were planning to raise taxes in Alabama. It concluded, “Seems like the Klan would be welcome to raid the gated communities up there.”

Sutton, who is also the paper’s publisher, could not immediately be reached for comment. He told the Montgomery Advertiser on Monday that he had written the editorial, which ran without a byline, and stood by it.

“If we could get the Klan to go up there and clean out D.C., we’d all been better off,” he told the paper, explaining, “We’ll get the hemp ropes out, loop them over a tall limb and hang all of them.”' https://www.washingtonpost.com/nation/2019/02/19/time-ku-klux-klan-night-ride-again-an-alabama-newspaper-editor-wants-bring-back-lynching/?utm_term=.569da0f7b47d

So that's what America has become.

ribby,
what do you think
do we really need the canadian

In certain way. According to trusted sources, the Japanese regime nominated Mr. Trump for the Nobel Prize. Follow the money!!

Señor, perdón,
pensamos que estaba bromeando.

The KKK was predominantly an organisation of Democrats, was it not?

The Dems - the part of slavery, Jim Crow, ethnic cleansing of the Cherokee, consigning of Japanese-Americans to concentration camps, and other delights. I don't think an enlightened people - like the Brazilians, say - would tolerate such swine.

pfft. The Dem party in the south circa that era was white conservatives. May have as much to do with Lincoln's party as anything.

They all moved over to the GOP when the rest of the nation got serious about civil rights.

Like Roy Moore did, to name a notable modern Republican from Alabama.

pfft. The Dem party in the south circa that era was white conservatives.

To anyone remotely familiar with the career of Tom Watson, Eugene Talmadge, or Hugo Black, this judgment sounds unreal.

The GOP voted for civil rights at a much higher rate than the democrats. It was the democrats who resisted.

Very few Southern segregationists in Congress changed parties between 1964 and 1973. Strom Thurmond was the only one in the Senate. In 'McMike's 'mind', that tranlates into 'they all'. What's amusing is that partisan Democrats traffick in these fictions even though it's bloody simple to discover they're false. The last member of Congress to have been enrolled in the KKK was Robert Byrd, who was an organizers of klaverns in a state that had few blacks and at at time when the 2d incarnation of the Klan was decidedly passe and on the verge of institutional dissolution.

Youre being pathetic.
The switch in the south from dem to repub is a well understood piece of history. Youre cherry picked whatabouts dont change that

McMike,

You do realize it is well understood that it did not happen? The "Southern Strategy" is just a tactic to paint people as racist and re-write history. It is unsupported by the facts.

Exactly, which is why the South is still solidly Democratic.

The democrats switched strategies. They could not suppress the black vote, so it bought them off with LBJ's great society

Apparently not even the NY Times always falls for the "Southern Strategy" myth anymore.

That's because it doesn't match the facts, which is that the South turned Republican via people moving in from more Republican States and turned starting with the least racist States and locations first and the more racist areas last and least. Looking at individual and group voting patterns over time also refutes the myth.

Poor racist Democrats in the South primarily stayed that way. Small business owners, merchants and professionals from up north, etc... were the new Republicans in the South. It would have been odd for Southern racists to adopt the Republican Party at the time it was even more in favor of civil rights for all and was also the Party which had historically been their opponent. That's why it didn't actually happen.

"They all moved over to the GOP when the rest of the nation got serious about civil rights."

So, apparently that was some period after Democratic Senator Byrd died as an active senator in 2010. Was it 2011 or maybe 2012?

'The KKK was predominantly an organisation of Democrats, was it not?'

Actually, it was an organization of racists. But it is true that the members of the party that destroyed slavery were not notable members of the KKK. In large part because the KKK was founded by veterans of the Confederate Army. Of course, that was the 'first' Klan.

However, probably the most famous current person associated with the KKK is David Duke, who served as a Republican Louisiana State Representative, after changing his political affiliation from the Democratic to Republican Party in 1988. One should note, to their credit, the Republican Party did repudiate him shortly thereafter.

a. The KKK was an actual branch of the democratic party.

b. David Duke has gone back to is roots backing democrats.

So, in connection with the post 'Reducing Discrimination with More Information' it turns out that white people are 16% more untrustworthy when involved in jury duty when they are by themselves? Quelle surprise.

What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants but the presence of just a single black person in the jury pool equalizes conviction rates by race.

Wagers both effects non-replicable.

Depends on what you mean by non-replicable, as noted by the study itself - 'Given the limitations of the existing literature, the main goal of this article is to provide the first empirical evidence of the effects of jury composition on trial outcomes based on quasi-random variation in jury composition and data from real criminal trials. We do so by combining a data set that provides information on both the seated jury and jury pool for each trial with a research design that seeks to isolate a random source of variation in jury composition. Our data set consists of all felony trials for which jury selection began in Sarasota and Lake Counties, Florida, during 5.5- and 10-year periods, respectively, in the 2000s. The data are unusually rich in providing information on the age, race, and gender not only for each of the 6–7 members of the seated jury but also for the approximately 27 members of the jury pool for the trial from which the seated jury is selected. The data set also contains detailed information about the race and gender of the defendant, the criminal charge(s), and the final jury verdict.'

Basically, it would likely be possible to compare Florida today, and see whether the results are 'replicated.'

And that fallback correlation not causation bon mot is not particularly applicable in this case.

Depends on what you mean by non-replicable,

You going to tell me it depends on what the meaning of 'is' is, too?

I think in New York about 2% of the convictions entered are consequent to a petit jury verdict.

We've got prosecutors who claim that exculpatory DNA evidence isn't sufficient to overturn a (wrongful) conviction and you're worried about peremptory challenges?? ROFL. The Rube Goldberg nature of the US Criminal Justice "system" makes it complex so that it can seem fair and impartial; but opacity isn't the same as fairness. Lipstick on a pig.

I would imagine that the challenges matter when you are a poor black defendant staring across at 12 middle class white faces

The poor black defendant will almost never be facing that. The public defender will negotiate a plea for him. On the odd chance he goes to trial, he'll get who answered the jury summons. Since 37% of the population is non-white and blacks tend to live in agglutinated settlement, and all-white jury pool would be atypical. And, since most of the population consists of hourly employees, a jury of middle class whites is actually quite rare.

And, of course, randomly selected whites are more likely to make fair judgments than professors, much less snide professor-groupies.

“The public defender will negotiate a plea”

Lol. Thats one way of putting it

Race?

What about occupation?

Lawyers are often subject to peremptory challenges!

Though, I did serve on a jury once--too bad for the defendant. There was a grandmother on the jury who said: "this boy should be given another chance and we all make mistakes.

I was the foreman, after everyone spoke, suggested we lay out the legal requirements for the violation, then the facts, and then we reached the conclusion, even with the grandma. After the verdict, the judge came back and said the defendant had another trial pending in another county, also for car theft.

My conclusion was: Grandmas should be peremptorily challenged.

yeah, my old consulting job brought me in contact a lot with law enforcement. I got bumped off a trial once, presumably for that

You sound like a friend of mine. He's a lawyer and was empaneled on a jury on an assault case. The assault was an "understandable" one: two guys got in a kick down drag out. However one ended up in the hospital. Most of the jury wanted to acquit, but my friend insisted that the law is the law and being young and hot headed is no reason to get away with beating someone to a pulp. Ended up with a hung jury.

Another funny part of this story was that while we were waiting to be chosen for the jury, I sat next to a "student" who was in the same jury pool.

I asked him: "What are you studying and what do you want to do." He replied: I am studying criminal justice and I want to be a policeman.

At voire dire, the defense counsel asked: What is your occupation. Answer: Student.

No further questions. Guy was put on the jury for the next case.

Lesson #1: Ask what are you studying and what do you want to be.

Lesson #2: The case he was empaneled on was a real doozy.

You see, there was this very conservative right wing minister who discovered two teenagers had entered his gravel pit. The minister grabbed them by the collar, threw them in the backseat of his pickup, and brought them to their parents. He lectured them in front of the parents about the dangers of being in the gravel pit, and left them with their parents.

Next week the minister was arrested. Arrested for violating a statute which provides: Anyone who shall confine a person under 18 in a space without their consent shall be guilty of a felony.

The minister was being defended by the leading drug defense lawyer in the city.

Talk of ironies.

I didn't stay for the verdict but thought that there is such a thing as prosecutorial discretion which should have weeded this one out.

The finding, that having one black member of the jury pool eliminates bias, is consistent with prior blog posts: the exposure to the black member of the pool informs the other members of the pool that not all black people are guilty of something. We carry our biases with us until we receive information that contradicts the bias. That's simultaneously depressing and encouraging, depressing that we have biases for no reason and encouraging that we can overcome our biases based on a positive experience.

+1. I'm discouraged by how easily a bias can be formed, but encouraged that is can so easily be broken.

The fact that it works even with non-selection of a black member of a jury pool is a unique twist - it's impact on the selected jurors is apparently insufficient to affect unprejudiced jurors, but sufficient to nudge would-be prejudiced jurors back to the baseline. Nice little bow.

Just so stories are fun, but they are not evidence.

No one has managed to link implicit bias to any sort of real world discrimination, particularly not the mutable sorry you are describing.

> more “ideologically” balanced

I love how that word is in scare quotes -- as if diversity of thought is obviously far, far less important than the color of your skin.

My opinion of anything Kavanaugh is for is best shown by Groucho Marx.

I don't know what they have to say
It makes no difference anyway
Whatever it is, I'm against it
No matter what it is or who commenced it
I'm against it

Your proposition may be good
But let's have one thing understood:
Whatever it is, I'm against it
And even when you've changed it or condensed it
I'm against it

I'm opposed to it
On general principles, I'm opposed to it

+1, that does seem to match the thought processes of many on the Left these days.

Not that it's strictly a Left wing problem, but it does seem to be worse on the Left today.

"but it does seem to be worse on the Left today."

Um....what?

Biggest issue of the day.. the border wall. Until lately not too controversial. The Dems voted for it just a few years ago. Obama's border chief is VERY in favor of it, but the Dems need to opposed it out of TDS.

Or:

"President Donald Trump's administration plans to continue the U.S. government's advocacy favoring the decriminalization of homosexuality worldwide. This has, in both a baffling and yet predictable pattern, angered several loud voices in the LGBT community.
...
An even stranger response was the gay magazine Out, which gave space to a writer who attempts to argue that the whole plan smacks of some sort of white colonialism coming from Western countries because the targets are in the Middle East, Africa, and the Caribbean. The headline of Matthew Rodriguez's piece is "Trump's Plan to Decriminalize Homosexuality Is an Old Racist Tactic."
"

http://reason.com/blog/2019/02/20/trump-is-continuing-obamas-opposition-to

Trump promoting the decriminalization of homosexuality is obvious Racism if you can hear the correct dog whistles.

OK, so you know how there are Dems who think Reps are evil and that the Dems never do anything bad and it's the Reps who obstruct everything and the Dems never do? You make fun of those idiots all the time.

Well, that's you, in reverse. Grow up. The derangements started with Bill Clinton, both parties have had deranged factions since, and neither side has the high ground. Any hypocritical Dem behavior to battle Trump has analogs in Rep behavior battling Obama. Those are plain facts.

Agreed similar. But not symmetrical.

TDS on the left is definitely worse than ODS was on the right. There's a host of poll and social science data, showing that Dem loathing of Republicans is much higher than the converse.

The conspiracy minded "birthers/Obummer/Osama" crowd never had anything like majority republican support. Can't say the same about the Dems with "Russian collusion", can we?

Haidt's work etc. really suggests that the Left / Right are NOT symmetrical in their regard of each other. I don't regard moral equivocation in this area as clever now.

"Any hypocritical Dem behavior to battle Trump has analogs in Rep behavior battling Obama." You won't find me changing positions depending on who is making a claim. Telling that you attack that position.

Then why aren't you ripping Trump for continuing Obama's immigration policies?

"Biggest issue of the day.. the border wall."

It's not any sane person's biggest issue of the day.

If we had sane government, the Democrats and Republicans would have agreed to negotiate $5-10 billion for an improved Wall in exchange for a path to citizenship for the Dreamers.

That's what a rational government would do. We are far from that standard today.

Or we finally move to professional jurors and stop this ludicrous waste of time.

"Professional jurors" is a nonsense idea.

"What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants but the presence of just a single black person in the jury pool equalizes conviction rates by race."

There's probably some selection bias going on here. For example, in cases where there's really no doubt about the outcome, the defendants attorney doesn't bother with trying to get a better jury. That being said 16% seems to be fairly significant and I could easily believe there's enough inherent racism to sway the scales this much.

“There's probably some selection bias going on here. For example, in cases where there's really no doubt about the outcome, the defendants attorney doesn't bother with trying to get a better jury.”

Mostly right, but wrong about which side doesn’t bother.

Nearly all of my cases (home invasions, muggings, and sexual assaults) were redundantly slam-dunks. Take, for example, the (African-American) defendant who was (a) identified by the victim he punched, (b) caught clear as day by two different video cameras, (c) dropped his wallet in the house, (d) was stopped shortly thereafter by police with the loot in his car and (e) had the homeowner’s blood on his clothes, (f) waived right to counsel and confessed on video, and (g) used the exact same M.O. as in his other robberies (for which he was convicted).*

Now, when the time comes to pick a jury, African-Americans generally accounted for about 1/5 to 1/4 of the starting pool in my neck of the woods. Since the only way I’m gonna lose is via a Batson challenge or other prosecutorial chicanery, I’m unlikely to challenge any AA jurors since any CDL worth his salt is resting any chance of victory on biased jury-selection.

That’s just my experience and approach, but I suspect it’s fairly typical to make sure you don’t lose slam-dunks on appeal (via jury selection, sketchy evidence, etc.).

*If you’re wondering: I didn’t overcharge, and didn’t offer sweetheart pleas, which is why I had trials this one-sided.

So, adding only a minor correction, we are told "all-white juries are 16% more likely to convict black defendants than white defendants". But why must we assume that this is a bad thing, and, whether or not it's a bad thing, why must we assume that the sole possible explanation is racism among the jurors?

'why must we assume that the sole possible explanation is racism among the jurors?'

Sometimes, people who did not grow up in a southern American state are so charmingly naive.

But I am sure your birth certificate mentions your race, and when you were born, that your race determined who you could legally marry depending on their race, right?

The darkly comic thing about this is how shocked Germans are when they discover that decades after the end of Nazism, the Commonwealth of Virginia was still enforcing explicitly racist laws of the sort considered to be typical of the Nazi era.

I’ll throw another potential hypothesis into the ring.

The jury pool is drawn from a local population. An all white jury pool probably is drawn from a population that has few/no black people, while a more diverse jury pool probably is drawn from a population with more black people. Is it possible that the two populations might have different characteristics that effect voting tendencies?

Perhaps this could be tested by comparing outcomes of coincidentally all-white jury pools in diverse regions vs. outcomes of all-white jury pools in less-diverse regions and seeing if they have different conviction rates of black defendants.

Thus, diversity of the jury pool may be as important as diversity of the jury–in a way that’s fortunate since it’s easier to make the jury pool diverse (as we have done with required randomization) than the jury.

It was only in 2015 that Texas eliminated its "key man" grand jury system in favor of randomization similar to already used in (petit) juries. The prior system allowed locals to essentially pick the grand jury members.

It's a mistake to create a policy position the basis of a single study of any phenomena. (e.g., "The Impact of Jury Race in Criminal Trials"). maybe it's true and that's great, but until it's replicated several times it's just an idea.

Why not simply do blind voir dire? The prosecutors and defense attorneys can submit questions to the judge, who will question the prospective jurors and provide a transcript to the lawyers. The lawyers can then provide their challenges, without seeing the names or races of the jurors.

I can't see this being much more time-consuming than the current process and it eliminates unnecessary bias and inefficient resource allocation (i.e., to jury consultants).

Tilting at windmills.

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