The Peremptories Project
The American Society of Trial Consultants Foundation announces a research project focused on gathering data to help identify the importance of the peremptory challenge in American courtrooms. This preliminary description lays out the need, the solution, and the possible steps forward.
The Current Threat
Peremptory challenges are the subject of an unprecedented level of public scrutiny and criticism:
- Because they generally require no rationale, peremptory challenges are broadly viewed as gateways for attorneys’ own biases, including racial bias.
- In November 2015, the U.S. Supreme Court heard oral arguments in the Timothy Foster case. Civil rights attorney Steven Bright argued to the Court, “The [Georgia] prosecutors focused on the race of the black prospective jurors in their notes, struck all four black prospective jurors, gave reasons for the strikes that were false, incredible, and contradictory, and argued to the all-white jury that it should impose a death sentence to deter people [living] in the projects.”
- Veteran NPR court-watcher Nina Totenberg recently commented that “Most experts say,” the only way to address systemic racial bias in jury selection, “would be to eliminate or drastically limit peremptory strikes.”
- At the Civil Jury Project conference in the fall of 2015, Yale University’s well-known law professor Akhil Amar called the existence of peremptory strikes “a disgrace,” and without constitutional basis.
- As recently as February, 2016, lawyers and judges from across California met to discuss a proposal to reduce the number of peremptories allowed in state courts (Courthouse News Service, 2/9/2016).
The Role for Research
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 yet done an effective job of explaining the benefits of a peremptory strike.
- A research review in the American Psychological Association’s “Judicial Notebook” (Robbennolt, 2005) suggested that “additional research might explore whether (and how) peremptory challenges serve their stated purpose. Does the availability and use of peremptory challenges… enhance attorneys’ ability to explore possible biases with potential jurors?”
- Well-designed research can and should answer the question of whether the proper and non-discriminatory use of the peremptory challenge increases the fairness of jury selection.
- While there is probably more than enough research on the practical failure of Batson and progeny – and the problems with pre-textual strikes – what may be lacking is research on the other side; there is a practical need for having peremptories in the vast majority of civil and criminal cases and benefits that do not involve race-stacking.
- The role for the Foundation will be to facilitate and fund research that the explores the effective use of peremptories, as well as other projects that broadly address the concerns and criticisms of peremptory challenges. Our goal is for that data to become part of the public discussion on the future of peremptories and improved voir dire conditions.
Peremptories Project Proposal, Experiment One
Dr. Mykol C. Hamilton, PhD
ASTC Foundation Research Director
The experiment described here is the first in a proposed series to test the efficacy of peremptory challenges. Largely because of violations of the Batson v. Kentucky ruling, peremptory challenges have become increasingly controversial. Civil Rights attorney and Harvard law professor Stephen Bright, who recently argued the Foster v. Chatman case before the US Supreme Court, has stated that the best remedy for racial bias in jury selection is to eliminate peremptory strikes, a sentiment shared by others including Supreme Court Justice Stephen Breyer.
Proponents of peremptory strikes argue that they are vital for the selection of impartial juries, that to abolish them would do more harm than good.
Who is right? That is an empirical question.
Experiment One Methodology
Materials Development. My research team will create a body of mock voir dire interview videotapes based on an extremely high profile local murder case. Jury-eligible residents of this county will participate in mock individual voir dire interviews. In half of the interviews the attorney will use voir techniques deemed “good,” based on the suggestions of trial consultants, psychology researchers, and attorneys as well as on specific techniques I have designed and tested over the past several years. The remaining interviews will involve the “bad” questioning techniques most lawyers currently employ. For example, before someone has expressed any biases or prejudicial attitudes, attorneys (and judges) begin a premature rehabilitation process, asking what I call prehabilitative questions about abilities and duties— “Are you capable of following the law? Can you set aside your opinions? Will you be able to do your duty as a juror by presuming…?” The result of such questioning is that prospective jurors hide their doubts and weaknesses. After all, what answer other than Yes would anyone with an ounce of self-esteem or belief in the legal process give?
Measurement of “True Attitudes.” Although some anti-defendant/guilty bias may be revealed in the interviews, some may remain concealed. In a second session we will assess the bias each participant would likely take into the courtroom with them at trial. A week or two after the interviews, the mock prospective jurors will be exposed to defense and prosecution evidence and arguments. They will then decide on a verdict, rate their level of confidence, and make judgments about the defendant on various scales.
Measurement of Dependent Variables. Eighty attorneys will view subsets of the interview videotapes. They will rate each prospective juror’s impartiality on several scales, decide whether to exercise a peremptory strike, and rate how confident they feel about their decision.
The answer to the question of whether peremptory strikes can assist in the seating of impartial juries will come from comparisons between individual juror bias as uncovered by measurements of their “true attitudes” and attorneys’ ratings and peremptory strike decisions.
We hypothesize that attorney judgements, and thus peremptory strikes, will be effective in the “good” voir dire condition and less (or not at all) effective in the “bad” voir dire condition.
Projected costs. We estimate that it will cost at least$35,000 to develop case materials, pay personnel (e.g., research assistants, court workers, videographer, video editor), purchase video equipment, rent courtroom space, run data analysis, etc.
Results from the research will be broadly shared and prepared for academic and legal publication.
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