Jury selection, peremptory challenges and discrimination

In March, the U.S. Supreme Court decided Snyder v. Louisiana, addressing whether racial bias played a role in the selection of a capital jury. Allen Snyder, an African-American man, was tried for the murder of his estranged wife's companion. During jury selection, the prosecution used peremptory strikes to remove five African-American prospective jurors, leaving Snyder to be tried before an all-white jury. He was convicted of first-degree murder and sentenced to death.

During jury selection, potential jurors are excused "for cause" when the judge finds that they cannot decide the case impartially. Independently, each side may exercise some limited number of peremptory strikes to excuse additional jurors without offering a reason. However, the U.S. Supreme Court has held that peremptory challenges cannot be used to systematically strike prospective jurors from the panel on the basis of race (Batson v. Kentucky, 1986) or gender (J.E.B. v. Alabama ex rel T.B., 1994).

In Batson, the court outlined a three-step approach for analyzing challenges to peremptory strikes. First, the party objecting to the strike must present facts that "raise an inference" that the strike was racially based. Second, the party who made the strike must present a "neutral explanation." Finally, the trial court must determine whether the party objecting to the strike has established "purposeful discrimination."

In Snyder, the defendant alleged that the prosecution's use of peremptory challenges was racially motivated, noting that jurors of different races were questioned differently and that all eligible African-American jurors were struck. The defendant's conviction and death sentence were twice upheld by the Louisiana Supreme Court. The U.S. Supreme Court reversed.

Applying Batson, the court determined that the defendant made a "prima facie showing that the challenge was based on race" because the prosecutor struck all of the remaining African-American jurors. The prosecution advanced two race-neutral rationales for the peremptory strike of one of the African-American jurors, arguing that the juror appeared "very nervous" and expressing concern that a potential scheduling conflict would incline him toward a lesser verdict so as to expedite the deliberations.

The court found that the trial court failed to make any factual determination as to the juror's demeanor or his schedule and, therefore, did not credit this explanation. Accordingly, the Court found that the prosecution's rationales were a "pretext" for discrimination.

In a recent case (Miller-El v. Dretke, 2005), Justice Stephen Breyer noted in concurrence that "the law's antidiscrimination command and a peremptory jury-selection system that permits or encourages the use of stereotypes work at cross-purposes," and suggested that the court "reconsider . . . the peremptory challenge system." Justice Breyer noted "the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a peremptory challenge" and expressed discomfort with requiring "judges to engage in the awkward, sometimes hopeless, task of second-guessing a prosecutor's instinctive judgment—the underlying basis for which may be invisible even to the prosecutor exercising the challenge."

A recent study (Sommers & Norton, Law & Human Behavior, 31, 261–273, 2007) explored these difficulties by examining the effect of race on peremptory challenges and the reasons provided to justify strikes. The two jurors under consideration each exhibited characteristics that would be concerning to the prosecution; the race of these jurors was varied. Participants were asked which juror they would strike and to provide reasons for their strike. Juror race influenced attorney and lay participants' strikes. This finding is consistent with investigations of peremptory challenges in actual cases (see e.g., Baldus, 2001; Rose, 1999). However, few participants mentioned race as a factor in their decision, instead citing other (nondiscriminatory) characteristics of the potential juror. The study, thus, found that even when race influenced peremptory challenges, race-neutral reasons were readily provided as justification. Such findings are consistent with the psychology of social judgment, social desirability and unconscious bias.

Further research might explore judges' ability to evaluate the proffered justifications in order to distinguish those that are merely a pretext for discrimination, attorneys' assumptions about race and decision-making, or the extent to which the availability of peremptory challenges affects the parties' experience of the process or the public's faith in the system.

"Judicial Notebook" is a project of APA's Div. 9 (Society for the Psychological Study of Social Issues).