Rethinking Jury Selection

<div> Given the vital role of juries in our judicial system, the process by which courts select jurors has been a source of significant Supreme Court litigation. Courts have traditionally justified peremptory strikes, which allow parties to exclude prospective jurors for any reason, on the assumption that litigants will more readily accept the outcome of a trial if they had a hand in selecting the jury. However, in Batson v. Kentucky, the Supreme Court prohibited litigants from striking jurors based on race because the discriminatory exercise of peremptory strikes undermines the public’s trust in the judicial system. Thus, although litigants can use peremptory strikes to shape jury selection, under the assumption that doing so will make them more likely to accept an adverse jury verdict, litigants must now provide a race-neutral explanation when challenged, under the assumption that doing so will ensure public trust in the judicial system. However, in light of persistent allegations of the discriminatory use of peremptory strikes post-Batson and serious questions about whether the existing framework promotes litigant and public trust, this Article uses original empirical research to challenge those assumptions. </div> <div> <br> </div> <div> <span>First, this Article offers empirical evidence from a mock jury trial experiment that conflicts with the traditional narrative: peremptory strikes do not improve litigants’ views of the proceedings or the outcome, and peremptory strikes do not decrease litigants’ willingness to appeal an adverse verdict. Second, this Article uses a public opinion survey experiment to explore whether peremptory strikes post-Batson bolster or undermine the public’s view of the judicial system and of prosecutors who exercise them. The experiment confirms existing findings that nondiverse, all-white juries undermine the public’s view of the judicial system relative to diverse juries. The experiment then presents original evidence that the practice of peremptory strikes post-Batson has a separate, significant negative effect on the public’s view of the judicial system and of prosecutors who use peremptory strikes. The negative effect of peremptory strikes on public trust persists after controlling for the racial makeup of the empaneled jury. These findings shed light on the significant costs of peremptory strikes and counsel in favor of reforming, if not eliminating, peremptory strikes.</span> </div> <div> <br> </div>