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.
Research Grants Announcement: The Peremptories Project
The American Society of Trial Consultants Foundation is pleased to announce a project with the goal of awarding small research grants designed to promote the study of the influence of peremptory strikes on trial fairness in American courtrooms.
We believe there is already substantial research on the efforts of the courts, through cases such as Batson v. Kentucky and its progeny, to address the problem with pre-textual strikes being used inappropriately to form juries in a discriminatory fashion. What we believe is lacking is research focused on the more common scenario of peremptory challenges being used, not to “stack” any particular demographic group, but rather to target particular attitudes and experiences and to thereby reduce bias against one’s client and promote a trial that is more fair.
In the context of many public calls for eliminating the peremptory challenge, the practical question is whether, apart from its potential for misuse, the intended use of the peremptory strike serves the interests of a fair trial. Well-designed research can and should answer the question of whether the use of the peremptory strikein itself influences the fairness of jury selection.
The interest of the Foundation is to fund and publicize research that explores both the conventional and potentially-improved uses of peremptory strikes, as well as other projects that broadly address the concerns and criticisms of peremptory strikes. Our goal is for that data to become part of the public conversation on the future of peremptories and the potential for improved voir dire conditions.
The ASTC Foundation anticipates awarding grant funds based on research need, and expects to issue grants in the range of $500 to $2,000. That is a general guideline, and applicants are free to propose particular projects outside that range.
Our expectation is that we will be providing grants to cover direct research expenses, not providing stipends or paying for release time to the researchers, and not paying publication costs.
The Foundation will begin considering applications and making funding decisions on November 15th, 2018. After that, submissions may be considered on a continuous basis based on the quality of proposals and on the funds available. We expect this project to run for approximately one year.
Successful grant applicants will be notified by email, and will be provided with a contract letter in which the principal investigator agrees to receive and use funds for the identified purposes and to provide proof of expenditures as requested. In return, the grant recipient will agree to acknowledge the Foundation’s support in all publications and presentations, and to provide the Foundation with any data collected as well as copies of any research reports and publications that are produced.
Please send the following to Daniel Wlolfe at firstname.lastname@example.org
- Principle Investigator name, affiliation, CV, and full contact information.
- Names, affiliations, and contact information for other researchers involved.
- A concise (1 paragraph) statement of your research purpose including a rationale for the alignment of that purpose with the identified goals of the Peremptories Project.
- A summary (up to 3 paragraphs) description of your method.
- A brief statement (1 paragraph) of any post-research plans (e.g., publication and/or presentation).
- A budget identifying the expenses you are asking the grant to cover.
- An identification of any other support you are receiving or anticipate receiving for the project.
As indicated, review of applications will begin on November 15, 2018, and will be considered on a continuous basis, based on application quality and available funds, after that.
If you have any questions, please direct those to the email address above.
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