Confronting the Bias Dichotomy in Jury Selection

• Author: Brooks Holland
• Position: Professor of Law and J. Donald and Va Lena Scarpelli Curran Professor of Legal Ethics and Professionalism, Gonzaga University School of Law
• Pages: 169-221

Louisiana Law Review Louisiana Law Review

Volume 81

Number 1

Fall 2020

Article 10

12-11-2020

Confronting the Bias Dichotomy in Jury Selection Confronting the Bias Dichotomy in Jury Selection

Brooks Holland

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Repository Citation Repository Citation

Brooks Holland,

Confronting the Bias Dichotomy in Jury Selection

, 81 La. L. Rev. (2020)

Available at: https://digitalcommons.law.lsu.edu/lalrev/vol81/iss1/10

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Confronting the Bias Dichotomy in Jury Selection

Brooks Holland*

TABLE OF CONTENTS

Introduction .................................................................................. 166

I. The Bias Dichotomy..................................................................... 174

II. The Failed Batson Solution .......................................................... 186

III. A Cautious Defense of the Peremptory Challenge ....................... 194

IV. Confronting the Bias Dichotomy . . . Again:

Washington GR 37 ....................................................................... 204

Conclusion: Looking Forward ..................................................... 213

“Nothing is more basic to the criminal process than the right of

the accused to a trial by an impartial jury. The presumption of

innocence, the prosecutor’s heavy burden of proving guilt beyond

a reasonable doubt, and the other protections afforded the accused

at trial are of little value unless those who are called to decide the

defendant’s guilt or innocence are free of bias.”

1

“The use of peremptory challenges contributes to the historical

and ongoing underrepresentation of minority groups on juries,

imposes substantial administrative costs, results in less effective

Copyright 2020, by BROOKS HOLLAND.

* Professor of Law and J. Donald and Va Lena Scarpelli Curran Professor

of Legal Ethics and Professionalism, Gonzaga University School of Law. The

author has practiced for 26 years as a trial-level and appellate pu blic defender in

state and federal courts. The author thanks the Louisiana Law Review for

including this paper in its 2020 symposium, We the Jury: Conversations about the

American Ju ry

’

s Past, Present, and Future, and is especially grateful to

symposium co-panelists Alexis Hoag, Gregory Parks, Daniel Haryana, and Sam

Crichton. The author is also grateful to the faculty colleagues who provided

feedback on this paper during Gonzaga law school’s 2020 faculty roundtable

series. Gonzaga law studen t Jessica Trujillo prov ided outstanding research

support.

1

. People v. Branch, 389 N.E.2d 467, 469 (N.Y. 1979).

166 LOUISIANA LAW REVIEW [Vol. 81

juries, and unfairly amplifies resource disparity among litigants—

all without substantiated benefits. The peremptory challenge is an

antiquated procedure that should no longer be used.”

2

INTRODUCTION

The American jury has generated boundless dissertations about its

history, purpose, structure, and continuing vitality. The Louisiana Law

Review’s 2020 Symposium contributes significantly to this literature,

addressing historical perspectives on the jury, the jury as a political and

cultural institution, and standards in criminal and civil jury trials.

3

I was

honored to participate on a panel exploring the topic of jury impartiality

in criminal cases.

4

The American criminal jury is unique in the world by virtue of this

country’s commitment to lay jurors from the local community wielding

final authority over whether the state may exercise its power to punish.

5

The criminal law system ’ s expectation that these lay jurors will be

“impartial” reflects not only an interest in decision-making fairness and

accuracy, but also the fact that jurors decide cases in an adversarial system

of dispute resolution. In criminal trials in particular, defense lawyers and

prosecutors know that their zealous advocacy to the lay jury is what stands

between the defendant and the state’s desire to punish. Thus, the jurors

2

. State v. Saintcalle, 309 P.3d 326, 348 (Wash. 2013) (González, J.,

concurring).

3

. See Symposium Objective and Purpose, LSU LAW, https://www.law.

lsu.edu/symposium/ [https://perma.cc/6D4T-2QGH] (last visited May 1, 2020).

4

. See Schedule, LSU LAW, https://www.law.lsu.edu/symposium /schedule/

[https://perma.cc/5RW3-AUFK] (last visited May 1, 2020).

5

. See generally Williams v. Florida, 399 U.S. 78, 100 (1970) (recognizing

an “essential feature” in the lay jury of interposing the “commonsense judgment

of a group of laymen” between the defendant and prosecution, and the

“community participation and shared responsibility which results from that

group’s determination of guilt or innocence”); Duncan v. Louisiana, 391 U.S. 145,

156 (1968) (affirming that the jury trial right “reflect[s] a fundamental decision

about the exercise of official power—a reluctance to entrust plenary power over

the life and liberty of the citizen to one judge or a group of ju dges”). The

uniqueness of this lay-jury system extends to specific doctrine, such as largely

unimpeachable general verdicts and jury nullification. S ee, e.g., FED. R. EVID.

606(b); Peña-Rodriguez v. Colorado, 137 S. Ct. 855, 865 (2017) (noting that

“[s]ome version of the n o-impeachment rule is followed in every State and the

District of Columbia”); State v. Ragland, 519 A.2d 1361, 1372 (N.J. 1 986)

(observing that “[j]ury n ullification is an unfortunate but unavoidable power” of

the jury).