Judicial Notebook

Intuitive psychologists and intuitive lawyers are engaged in the same activity--explaining behavior--albeit from different vantage points. A fundamental question for both is the extent to which individual differences and attitudes predict behavior; both disciplines presume the existence of some sort of relationship, the strength of which is subject to debate. Peremptory challenges are one embodiment of this assumption.

Challenges are a tool attorneys use during jury selection to eliminate prospective jurors who they feel would be biased against their client. Challenges for cause involve "prima facie" bias, as when a prospective juror knows one of the parties to the dispute. Peremptory challenges involve more subtle, presumptive kinds of bias, as when an attorney assumes that for whatever reason--by virtue of their age, background, occupation, etc.--jurors would be ill-disposed toward their side of the case. Thus, peremptory challenges in particular are predicated on the assumption that individual differences or attitudes reliably predict jurors' verdicts. Although scientific studies of peremptory challenges suggest that they do not affect trial outcomes as much as attorneys think they do, attorneys are nonetheless very reluctant to give them up.

Limits to peremptory challenges

Attorneys can no longer use peremptory challenges for any reason whatsoever; rather, certain characteristics are impermissible grounds for exclusion. In Batson v. Kentucky (1986, 476 U.S. 79), the U.S. Supreme Court held that it was unconstitutional, on equal protection grounds, to exclude jurors based solely on their race, and this rule has since been extended to jurors' sex in J.E.B. v. Alabama (1994, 511 U.S. 127). The restriction applies to civil as well as criminal actions (Edmonson v. Leesville Concrete, 1991, 500 U.S. 614).

Several jurisdictions have wrestled with the issue of challenges based on religion. The most recent is State v. Fuller (2004, 862 A.2d 1130 [N.J.]), a case in which the defendant was charged with first-degree armed robbery. During jury selection, the prosecutor used four of his first five peremptory challenges to excuse African Americans. When defense counsel objected under State v. Gilmore (1986, 511 A.2d 1150), a New Jersey case that prohibited discrimination in jury selection "on the basis of religious principles, race, color, ancestry, national origin or sex," the prosecutor responded that two of the potential jurors (including the non-African American) were excused not because of their race but because they were "demonstrative about their religions."

The "demonstrativeness" apparently consisted of the white juror stating that he worked as a missionary and the African-American juror wearing black garb and a skullcap, from which the prosecutor inferred that he was "obviously Muslim." Neither juror indicated that his religious beliefs would interfere with his serving fairly on the jury. The trial court overruled the objection, and the jury convicted the defendant on both counts.

The New Jersey Appellate Division affirmed, based on the majority's distinction between excluding members of cognizable religious groups--which would constitute impermissible discrimination--and excluding individuals who merely appeared to be religious (State v. Fuller, 2002, 812 A.2d 389). The New Jersey Supreme Court subsequently overruled the appellate court, finding that the prosecutor's belief concerning religious jurors "suggests the very stereotypes that have been used to justify a policy of blanket exclusion that the law condemns" (State v. Fuller, 2004).

Divided opinions

Other jurisdictions have, like New Jersey in Fuller, prohibited challenges based on religion, including Colorado (Fields v. People, 1987, 732 P.2d 1145) and California (People v. Wheeler, 1978, 583 P.2d 748). Some courts have distinguished between level of religiosity and religious affiliation, such as the Third Circuit in U.S. v. DeJesus (2003, 347 F.3d 500), and at least one state--Minnesota--has ruled that all religious challenges are acceptable (Minnesota v. Davis, 1993, 504 N.W.2d 767). Religion is an interesting test case because, unlike the characteristics universally protected under Batson (race and sex), religion is not--with rare exceptions--knowable from simple visual inspection.

Attorneys who use this tactic clearly believe that religiosity or religious affiliation affect decision-making. This assumption has obvious implications for trial consulting, as the judicious exercise of peremptory challenges is a major role for consultants aiding in jury selection. Supporting the assumption, several mock juror studies have shown that jurors' religiosity, religious affiliation and specific religious beliefs are associated with verdicts, especially in capital cases.

For example, jurors with more conservative religious views tend to be more punitive. Thus, although most attorneys are vehemently opposed to eliminating the practice of peremptory challenges--which would also curtail the activities of many psychologists working as trial consultants--there is some indication that the New Jersey Supreme Court got it right in Fuller.

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