Negotiating Peremptory Challenges
Journal of Criminal Law and Criminology
Peremptory challenges enable litigants to remove otherwise qualified prospective jurors from the jury panel without any showing of cause, and accordingly are often exercised on the basis of race. In Batson v. Kentucky, the Supreme Court tried to remedy the most obvious abuses by requiring that strike proponents give a “race neutral” reason for the strike, and directing trial courts to assess the credibility of the explanation. But the Batson regime has proved spectacularly unsuccessful. It has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors.
One of the reasons for this failure is that the Batson framework rests on psychologically naïve theories of human behavior. These are that (1) considerations of race can be purged from the jury selection process, (2) lawyers will be aware of their motivations for striking particular jurors and will report these reasons honestly, and (3) judges will be able to distinguish between honest and dishonest explanations. But these theories are inconsistent with recent advances in cognitive psychology, which suggest instead that most of us retain implicit biases against racial minorities, even when we believe ourselves unbiased. The other weakness of Batson is that, despite its juror-centered conception of rights, enforcement is overwhelmingly a matter of adversarial preference. Lawyers infrequently raise Batson issues, and even when they do, judges often fail to grant Batson motions because of the implied judgment that the strike’s proponent is a racist, a liar, or both.
Drawing on empirical studies, psychological research, and the emerging school of behavioral realism, I argue that we need to change our approach. If implicit bias is indeed a pervasive fact, then we need to find effective ways to prevent it from dictating outcomes. I therefore propose that we jettison the inherently unstable framework of Batson and allow peremptory challenges only on consent of both parties, with the challenges waived if no agreement is reached. Some of the benefits of this proposal would be similar to abolition of the peremptory challenge: less litigation, a more robust safeguard against racial discrimination, and potentially broader participation by prospective jurors. But because negotiation could retain the use of peremptory challenges on consent, it would better preserve party autonomy and the acceptability of verdicts. Ultimately, negotiating peremptory challenges could protect the rights of the excluded jurors, preserve the original benefits of the peremptory challenge, and maintain the dignity of all participants.
Caren Morrison, Negotiating Peremptory Challenges, 104 J. Crim. L. & Criminology 1 (2014).
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