Judicial Notebook

During the process of jury selection, attorneys for each side may challenge prospective jurors for cause or may exercise a limited number of peremptory challenges. The judge may excuse any number of prospective jurors for cause if he or she finds that the juror cannot decide the case impartially based on the evidence and the law. More controversial is the use of peremptory challenges, with which the attorneys may excuse jurors without offering a reason for the challenge and without the judge's approval.

In Batson v. Kentucky (1986), the U.S. Supreme Court recognized that "peremptory challenges constitute a jury selection practice that permits 'those to discriminate who are of a mind to discriminate'" and concluded that "[t]he harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community."

Accordingly, the Court held that a prosecutor cannot use peremptory challenges to systematically strike prospective jurors on the basis of race and formulated a three-step process by which to evaluate claims of discrimination. First, the defendant must present circumstances that "raise an inference" that the prosecution exercised peremptory challenges on the basis of race. Second, "the burden shifts to the State to come forward with a neutral explanation" for the challenge. Third, the trial court is to "determine if the defendant has established purposeful discrimination."

In subsequent cases, the Court has held that the rules articulated in Batson apply equally to peremptory challenges exercised by the defense (Georgia v. McCollum, 1992), to peremptory challenges in civil as well as criminal trials (at the rules articulated in Batson apply equally to peremptory challenges exercised by the Edmonson v. Leesville Concrete Co., 1991), and to peremptory challenges based on gender (JEB v. Alabama ex rel T.B., 1994).

Recent cases

In June, the Court decided two cases, Miller-El v. Dretke and Johnson v. California, in which claims of discrimination in the use of peremptory challenges were advanced. In Miller-El v. Dretke, the prosecution exercised peremptory challenges to strike 10 of 11 qualified black prospective jurors. In evaluating whether the prosecution's proffered neutral explanations were persuasive, the Court compared the black panelists who were excused with white panelists who gave similar answers to the jury questionnaire and in voir dire but were seated on the jury. In addition, the Court found that black panelists were questioned differently than white panelists--for example, using a "graphic script" to describe the death penalty that was "intended...to prompt some expression of hesitation to consider the death penalty and thus to elicit plausibly neutral grounds for a peremptory strike of a potential juror subjected to it, if not a strike for cause." Finally, the Court questioned the prosecution's shuffling of the jury pool and reviewed evidence of "a history of excluding black members from criminal juries" by the district attorney's office. Based on these considerations, the Court found that it was unreasonable to conclude that there had been no racially based strikes.

In a companion case, Johnson v. California, the Court clarified its rule for the first step of the Batson analysis, holding that the party objecting to the challenge need not demonstrate that "it is more likely than not that the other party's peremptory challenges, if unexplained, were based on impermissible group bias," but rather that the evidence "raises an inference" of discrimination.

Shortly after the rulings in Miller-El and Johnson, the Court agreed to review Rice v. Collins (No. 04-52), in which it will assess a state court's determination that a prosecutor's use of peremptory challenges to strike two black women from a jury was not racially motivated.

Questions for psychology

Existing psychological research has explored the relatively weak association between demographics and jury verdicts (see review in Saks, 2002), patterns in peremptory challenge use (see e.g., Baldus, 2001; Diamond & Zeisel, 1974; Rose, 1999), and how being the subject of a peremptory challenge affects the excused juror (see e.g., Rose, 2003). The continuing debate over the use of peremptory challenges invites additional psychological research into the nature of juror predispositions; the effects of peremptory strikes on jury composition and decision-making; the extent to which attorneys rely on stereotypes in making their strikes and the nature of those stereotypes; and how the exercise of peremptory challenges influences perceptions of, attitudes toward and trust in courts.

Additional research might explore whether (and how) peremptory challenges serve their stated purposes. Does the availability and use of peremptory challenges influence parties' perceptions of control over the process, counterbalance jurors' unawareness of or reluctance to admit bias, or enhance attorneys' ability to explore possible biases with potential jurors?

Research into these and many other questions will help to improve our understanding of the effects of and the assumptions underlying the use of peremptory challenges.

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