Supreme Court to examine errors in discerning juror bias

Thomas L. Hafemeister, JD, PhD
Chicago-Kent College of Law, Illinois Institute of Technology

Before the calling of witnesses and the presentation of evidence, prospective jurors are asked questions to determine whether they can serve as fair and impartial jurors, a process typically referred to as the voir dire. Based on their answers, the trial judge may determine that they lack this impartiality and excuse them pursuant to a "challenge for cause." Alternatively, either side may exercise one of a limited number of "peremptory challenges" to eliminate a prospective juror.

Historically, peremptory challenges have been exercised for any number of reasons and without explanation as well. The general rationale for making them available has been that there are prospective jurors whose bias is not sufficiently manifest to give the judge grounds for excusing them for cause. However, to enhance confidence in the fairness of the trial, a party should be able to excuse them based solely on the party's belief that the prospective juror may be biased.

In practice, peremptory challenges are exercised to remove prospective jurors believed likely to vote for the other side. Attorneys frequently rely on various stereotypes in exercising their peremptory challenges (eg., that the rich favor corporate defendants). In recent years, social scientists, relying on attitudinal studies, surveys and other indicia, have assisted attorneys in identifying potentially unfavorable jurors.

Peremptory challenges and challenges for cause are often closely linked. Because the number of peremptory challenges allowed is limited, attorneys, often encouraged by their trial consultants, will seek to have certain prospective jurors dismissed for cause, allowing them to conserve their peremptory challenges for other prospective jurors.

The Supreme Court speaks out

The use of peremptory challenges has, however, come under fire. The U.S. Supreme Court has ruled that using them to excuse prospective jurors solely on the basis of race or gender is impermissible. In addition, commentators have argued that they are undemocratic, susceptible to abuse, inherently irrational, and an insult to, and abuse of, prospective jurors (Hoffman, 1997). Some social scientists have questioned the ability to predict juror verdict preferences (Diamond, Saks and Landsman, 1998). Also, some jurisdictions are concerned that extensive use of peremptory challenges and challenges for cause will further deplete an already limited pool of prospective jurors.

At the same time, a failure to properly dismiss a prospective juror for cause has been grounds for an automatic reversal because showing that the failure to dismiss ultimately influenced the jury's verdict is considered too difficult to establish. Such reversals, which mandate a retrial, are very costly for both courts and litigants, as well as a waste of the efforts of the jurors.

The U.S. Supreme Court has accepted for review a case that will examine what impact a judge's failure to identify a biased prospective juror during jury selection should have.

In United States v. Martinez-Salazar (No. 98-1255) (67 USLW 3767), the Court will determine whether a criminal defendant is entitled to an automatic reversal of his conviction when he was forced to use a peremptory challenge to remove a prospective juror that the trial judge erroneously failed to remove for cause and when the defendant ultimately exhausted his available peremptory challenges.

Implications for social scientists

This case raises a number of empirical questions that social scientists might address and in some instances have addressed. Among the questions the Court is likely to directly examine are: Is it possible to establish whether a failure to dismiss a biased juror influenced a jury's verdict? Will automatic reversal for a judge's failure to properly excuse a juror for bias make judges more vigilant in detecting bias? Will greater vigilance increase the detection of juror bias, lead to more unnecessary or inappropriate exclusions, lengthen voir dire, alter citizens' respect for the judicial system or impact seated jurors?

Other questions that may be raised in the course of the Court's decision are: What constitutes unacceptable levels of bias in a prospective juror? Can attorneys or judges correctly identify bias in prospective jurors? How is juror bias likely to be manifested during jury selection, how can it best be identified, what is likely to suppress its manifestation, and what are likely false signals of bias? Is juror bias more prevalent in certain cases (eg., criminal versus civil trials) or under certain circumstances (eg., when there is extensive pretrial publicity)? What effect is pre-existing bias likely to have on either an individual juror or the full jury (eg., do group deliberations mediate its effect)? What is the effect on juror bias of various structural arrangements (eg., the use of a 12-person versus a six-person jury)? Can juror bias be "cured" by judicial admonitions (eg., directions from the judge to set aside bias)?

"Judicial notebook" is an effort by the Courtwatch Committee of APA's Div. 9, the Society for the Psychological Study of Social Issues, to encourage involvement by psychologists in judicial decision-making.



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