Reducing Racial Bias in Jury Selection:

A Solution

To start with, the process of gathering information on potential jurors ought to be expanded.  This would eliminate the need to use stereotypes as proxies for juror attitudes by giving direct access to needed information.  Voir Dire is the time period when attorneys gather information and ask members of the jury pool questions about their background and experiences in the hopes of discovering who will be favorable to their side and who presents the greatest risk of biasing the outcome of the trial (Weiman, par. 2).  The above proposal would lengthen this process and prevent judges from completely preventing the use of Voir Dire. Legal scholar Joshua Revesz explains in an article published in the Yale Law Journal that one driver of racial bias is the lack of information faced by attorneys during jury selection (Revesz 2541).  Because the opportunities for questioning are limited or even completely prevented, as in 54% of federal courts, attorneys implicitly resort to using racial stereotypes as proxies for more salient information such as perceptions of the government, political ideology, life background, and other things that may bias their views of the case.  Expanding the time allotted for questioning during Voir Dire would not be sufficient to solve the problem, however. Empirical evidence finds that attorneys reconfirm existing stereotypes without increasing information gathering when allowed to ask more questions (Revesz 2542). An approach that addresses this problem is proposed by New York University’s Civil Jury Project.  It would introduce a pre-trial process during which both sides of a case together with the overseeing judge agree on a list of relevant biases and what specific questions need to be asked to gauge these (Gabriel, par. 27). This means that questions are formulated mostly prior to the process of Voir Dire. Without having seen the jurors that will be questioned, question formation would no longer be able to serve the role of reinforcing stereotypes.  Together with the expansion of Voir Dire, this would provide attorneys better information to base peremptory strikes on and would eliminate the underlying psychological causes contributing to the use of race and gender as proxies for relevant opinions. Still, there are times when it is not implicit biases alone driving discriminatory jury selection but deliberate hostility toward people of color grounded in either racism or hopes for strategic benefits.  This second problem requires the implementation of an additional change: a requirement that attorneys negotiate peremptory strikes.

Law professor Caren Morrison argued in a Journal of Criminal Law and Criminology article that negotiated peremptory strikes would prevent both sides from freely biasing the jury and increase juror diversity.  This negotiation process would take place after both Voir Dire and the use of jury strikes subject to immediate judicial scrutiny called with cause strikes (Morrison 42). The remaining jury pool would be seated in a random order so that attorneys could see the first twelve individuals that would become their jury if the two sides do not agree to any peremptory strikes.  The same amount of time currently allotted for the exercise of peremptory strikes, about 30 minutes, would be given to attorneys for negotiations. Although there may be value to preventing the participants from seeing the initial twelve jurors to avoid giving one side an advantage during negotiations, doing so would prevent either side from having a metric for measuring their success during the selection process.  Each peremptory strike used would require both sides’ consent, which means that there can never be a scenario where, for example, every potential minority juror would be eliminated since the defence, or the even prosecution in limited cases, would be free to stop the strikes at any point in the process when they would find the result unsatisfying (Morrison 43). The negotiation process guarantees that there would never be a chance for every juror of color or a particular gender to be eliminated from the final jury except when the random selection of twelve at the beginning chooses that outcome, and one side refused to negotiate because it was advantageous to them.  Although the two solutions proposed herein would solve the problem, some advocate for a total elimination of the use of peremptory strikes.

While there is an immediate appeal to this proposal, reforming their use is preferable.  Some, such as Georgetown law professor Abbe Smith, have argued that peremptory strikes ought to be completely eliminated to ensure that bias and other problems are definitively resolved (Liptak, par. 52 – 53).  One issue is that such a solution would worsen the prevalence of bias during the jury selection process. This is because peremptory strikes provide an avenue for eliminating problematic jurors when the judge is biased towards a particular side during the evaluation of with cause strikes (Morrison 26).  Peremptory strikes also provide a valuable check on the power of the judge, who is subject to minimal outside oversight over decisions. Being limited to only with cause strikes for reducing bias and ideological extremism on juries would make errors more likely by reducing the number of actors involved compared to the world where all peremptory strikes are negotiated between two sides (Morrison 25).  A world of only with cause strikes is a world where the judge alone dictates the outcome of the selection process. All of these point to the value of peremptory strikes when used properly, which the previous proposals ensure.

In closing, the current use of peremptory strikes during the process of jury selection has played a central role in creating juries that are not racially representative of the population (Revesz 2541; Edelman, par. 4 – 5, 12 – 13).  This denies people the right to be tried by a jury of their peers, increases bias against people of color, and decreases the accuracy of trials (Edelman, par. 15). These are not reasons for ending peremptory strikes, which can serve as valuable checks on the power of the judge, if less radical solutions are available (Morrison 42 – 43).  Two such proposals include requirements that each side negotiate peremptory strikes and the expansion of opportunities for information gathering within a cooperative framework (Morrison 25 – 26; Gabriel, par. 27). While these leave the occasional possibility for biased jury selection, they curtail it significantly in tandem. Presented with these opportunities for ensuring genuine justice, the United States Department of Justice ought to begin the process of formalizing these proposals to ensure national compliance.  This would reduce jury trials’ contribution to the United States’s racially disparate, painfully large prison population. Most importantly, there would finally be an equal playing field in the competition to unseat the United States’s prestigious position as the country with the world’s largest prison population.

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