Every couple of years, someone puts forth an argument as to why the American criminal justice system should eliminate (or reduce) the use of peremptory challenges. I have contributed my own efforts to this cause. Among the four articles I co-authored with Warren Schwartz, two specifically called for eliminating peremptory challenges in criminal trials. (“The Challenge of Peremptory Challenges,” 12(2) Journal of Law, Economics, and Organizations, 375-394, 1996, and “And So Say Some of Us: What to do When Jurors Disagree.” 9(2) University of Southern California Interdisciplinary Law Journal,429-463 2000.) The latter of these is a non-technical treatment of the issue and is archived at my website here.
Many current scholars and legal professionals who advocate limiting peremptories are troubled by the persistent use of these challenges to reduce the representation of minorities on juries, notwithstanding the holdings of Batson and its progeny. Always a ruling with lots of wiggle room, the leverage that Batson gave appellate judges to rein in discriminatory behavior has been eroded over the years by U.S. Supreme Court decisions that seem to shift the burden for proving discriminatory intent back upon moving parties. In addition, as predicted in Marshall's concurrence to Batson more than 20 years ago, prosecutors seem regularly to discriminate against minorities subconsciously, while believing that are acting in a race-neutral fashion. Marshall's fears have been born out by several experimental studies of how people actually exercise peremptory challenges, including a recent one by Norton, Sommers and Brauner ("Bias in jury selection: Justifying prohibited peremptory challenges." Journal of Behavioral Decision Making, 20, 467-479.)
This concern for ongoing discrimination in jury selection has motivated, in part, a proposal to reduce the number of peremptory challenges to three for each side, offered by David Baldus of the University of Iowa Law School. This suggestion caught the attention of Nathan Koppel of the Wall Street Journal, who dedicated a column to it on March 6 of this year.
Many people who rue the absence of minorities on juries object to the fact that these excluded jurors do not get to vote on verdicts in these cases. Defendants, they argue, do not get fair trials because certain targeted groups are disenfranchised from this institution of participatory democracy. I do not want to diminish the importance of this point -- after all, we certainly wouldn't want people locked out of elections because of their racial or ethnic identity -- but I think that this is far more than a "voting rights" issue.
A jury is a deliberative body. In the end, of course, the jurors must vote for a verdict. This act of voting, however, constitutes a small fraction of a jury's efforts. Deliberation is about coming to a shared understanding, if possible, of the events surrounding the alleged crime and the defendant's role in those events. When a consensus is not achievable, deliberation should foster a clarification of where individuals' perceptions differ and how justice can be done notwithstanding those differences.
The dynamic dialogue that is jury deliberation requires that all voices be heard. This is where the use of peremptory challenges hinders the pursuit of justice. A strong opinion is not necessarily an illegitimate one. An unusual perspective may still be helpful in seeing the "big picture." A presumption unchallenged will be accepted uncritically, even if it rests on shaky ground. Peremptory challenges tend to weed out those with strong, unusual or critical opinions. These people might make excellent jurors. They might be essential to full and thorough deliberations. But our system tells them that they are not welcome at the table.
We now know that this exclusion has a powerful and troubling second-order effect. Jurors who expect to participate in deliberations only with like-minded people do not perform their tasks as jurors as well as those who expect to be deliberating as part of a heterogeneous group. Consider the results of a series of studies by Sam Sommers. ("Race and the decision-making of juries." Legal and Criminological Psychology, 12, 171-187.) His team examined the deliberations and decision-making of juries that were either all-white or of mixed race, all handling the same case in an experimental setting. He found that the mixed-race juries made fewer factual errors, included more facts in their deliberations, deliberated for longer and had better recall for case facts than did their all-white counterparts. In addition, the jurors on the mixed-race juries tended to be more open-minded about the guilt of the defendant. The really interesting part of his findings is that all of the difference was on the part of the white jurors. In addition, this difference took place entirely before deliberations started.
This is very important, so let me be clear. The white jurors who knew that they would be deliberating with black jurors paid closer attention to the facts of the case, started deliberations with more open minds about the defendant's guilt and could more accurately answer factual questions about the case. Essentially, knowing that they would be interacting with people "unlike" themselves caused these jurors to prepare themselves better for deliberations.
So, precluding minorities from criminal juries not only locks them out from voting and deliberating, but it also erodes the performance of those jurors who do sit on the case.
I have recommended in my academic pieces that the elimination of peremptory challenges should be accompanied by a relaxation of the unanimity requirement for criminal trials. In England, for instance, there are no peremptories and only 9 votes out of 12 are required to reach a verdict. I will not rehash those arguments here. Feel free to read my other work on the topic.
I will, however, take a brief moment to suggest that extensive, well-crafted juror questionnaires and attorney-conducted voir dire is especially essential should peremptory challenges be eliminated. For such questioning is really most useful for the knowledgeable exercise of challenges for cause. It is time for judges to stop being lazy about jury selection. Too many trials go forward with juries full of people who have been exposed to reams of pre-trial publicity about the defendant. People with criminal records, or who have been victims of crimes, routinely decline to reveal this information to the court because judges insist on using callous and outdated voir dire techniques. It is time for sequestered, individualized, attorney-conducted voir dire to become the norm, rather than the exception, in criminal trials. Much of the time-consuming nature of this process can be mitigated by the use of well-crafted supplemental juror questionnaires.
The American jury system can survive without peremptory challenges. In fact, I believe it would thrive without them. But we need to make sure that the other procedures we use during jury selection are more effectively applied.