Judicial Notebook

The use of peremptory challenges during jury selection has raised considerable controversy.

Two means are typically available for eliminating prospective jurors. Prospective jurors may be excused for "cause" if the trial judge determines they are biased or otherwise unqualified to serve as a juror. Alternatively, either party may exercise a limited number of "peremptory challenges." Historically, these challenges could be exercised for any reason and without explanation.

The rationale for them is that parties, acting on their intuitive sense that bias is present, should be able to excuse at least some prospective jurors. Traditionally, attorneys have relied on various group stereotypes in exercising these challenges. But concern about the use of some of these stereotypes led the U.S. Supreme Court to rule that prospective jurors cannot be rejected solely because of their race, gender or ethnicity (Batson v. Kentucky, 1986; Hernandez v. New York, 1991; J.E.B. v. Alabama ex rel. T.B., 1994).

The Supreme Court also established a procedure to determine whether one of these impermissible group stereotypes is being employed. A party who believes a prospective juror is being rejected for an impermissible reason must formally object at the time of the proposed exclusion and explain the basis for this belief (e.g., most of the prospective female jurors have been rejected).

If the judge finds this assertion sufficiently persuasive, the party making the peremptory challenge must articulate a permissible (i.e., nondiscriminatory) basis for the exclusion (e.g., the juror attorney did not like the prospective juror's haircut). The judge then determines whether this reason is bona fide or the underlying intent was to exercise impermissible group discrimination.

Case under review

The Supreme Court in Johnson v. California (No. 03-6539) (72[20] U.S.L.W. 3363) accepted for review this past December a case that addresses how strong the initial claim of discriminatory intent must be before the party that exercised the peremptory challenge must provide a reason for its use.

This case involves the murder trial of an African-American man. The district attorney used peremptory challenges to remove all three African-American prospective jurors. After the defendant's attorney objected, the judge expressed concern about the challenges but allowed them to stand after determining the defendant failed to initially establish it was "more likely than not" the challenges were based on an impermissible group bias. The defendant was convicted. On appeal, he argued his constitutional right to a fair trial was violated because the judge should have used a less stringent standard in assessing his initial objection.

The California Supreme Court (71 P.3d 270) determined, however, that the judge did use the correct standard. It held that the objecting party was required to present not merely "some evidence" of discriminatory intent but "strong evidence" that made discriminatory intent more likely than not. The court decided that the trial court was justified in deciding on its own that there were potential race-neutral grounds for the challenges and thus was not required to ask the prosecution to state a neutral explanation for them.

In contrast, the dissent noted that a single set of facts can support multiple, conflicting inferences and argued that, if the objecting party shows facts that can be used to logically deduce there was a substantial danger that the challenges were based on improper grounds, the party exercising the challenges should have to provide an acceptable reason for their use.

Commentators are sharply divided over peremptory challenges. Some strongly defend their use, while others call for them to be limited or abolished. Critics argue that these challenges increase bias or perceptions that juries are biased by selectively eliminating jurors, while supporters assert that they provide parties with a sense that biased prospective jurors have been eliminated.

Psychology informs the debate

Psychological research has been used in this debate. The value of peremptory challenges has been questioned because of findings that the information typically obtained during voir dire provides relatively weak predictors of actual juror verdict preferences.

Yet supporters of peremptory challenges cite studies that indicate that when the evidence is close or ambiguous, juror biases are more likely to come into play and jury selection can influence the outcome of a trial. In addition, psychologists can provide insight into the impact of bias or perceived bias and how it may be discerned.

The Supreme Court's ruling in this case will provide a strong indication of the future role of peremptory challenges; the research of psychologists can inform its deliberations.

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