EXAMINING JURORS: APPLYING CONVERSATION ANALYSIS TO VOIR DIRE IN CAPITAL CASES, A FIRST LOOK.

• Author: O'Brien, Barbara
• Position: The Death Penalty's Numbered Days?

Scholarship about racial disparities in jury selection is extensive, but the data about how parties examine potential jurors in actual trials is limited. This study of jury selection for 792 potential jurors across twelve randomly selected North Carolina capital cases uses conversation analysis to examine the process that produces decisions about who serves on juries. To examine how race influences conversations in voir dire, we adapted the Roter Interaction Analysis System, a widely used framework for understanding the dynamics of patient-clinician communication during clinical encounters, to the legal setting for the first time. This method allows us to document the conversational dynamics of actual questioning of potential jurors that precedes the decision to seat or strike a juror, or to excuse her for cause. Our preliminary analysis of this uniquely rich archival data suggests ways in which the discourse of jury selection varies by race, and provides the foundation for future work looking at the ways in which the evaluation of fitness for jury service itself is skewed and contributes to racial disparities in jury selection.

TABLE OF CONTENTS INTRODUCTION 689 I. RACE DISCRIMINATION AND JURY SELECTION 692 A. Discrimination in Jury Selection 692 B. Stereotypes and Racial Bias 695 II. CONVERSATION ANALYSIS 698 III. THE CURRENT STUDy 701 A. Sample Design 701 1. Death Penalty Reservations Subset 702 2. Prior Criminal Accusation 703 3. Hardship Arising from Jury Service 704 4. Employment with Police or Prosecutors 704 B. Conversation Coding 705 1. Adapting the RIAS Rubric to Legal Analysis 706 2. Coding & Reliability 706 3. Global Affect Rating 708 IV. A OVERVIEW OF THE DATA 708 A. The Study Sample 708 B. Capacities of the Coding Scheme 711 1. Qualities of Speech 712 2. Moving Beyond Individual Variables to Look at Patterns or Systemic Variation 713 3. Working with Single Cases, In Depth 717 V. DISCUSSION & CONCLUSION 724 APPENDIX 1. DIRECTORY OF TEXT CODES 726 APPENDIX 2. INITIAL CONVERSATION PROFILE DEFINITION 732 LIST OF FIGURES AND TABLES Table 1. Study Sample by Target Group and Case Table 2. Study Sample by Jury Selection Outcome and Case Table 3. Study Sample by Rate of Strike and Cause Removals by Race Table 4. Study Sample by Average Number of Utterances and Amount of Speech Table 5. Presence of Open and Closed Question Codes by Voir Dire Section across All Cases Table 6. Prosecutor/Juror, Defense/Juror, and Judge/Juror Speech Ratios by Case, Overall (col. B) and by Race (cols. C-F) Figure 1. Conversation Profile by Race, the Case of John Badgett INTRODUCTION

While scholarship about jury selection is extensive, the data about how parties examine potential jurors in actual trials is limited. (1) This study goes behind the outcomes of peremptory strike decisions documented in our earlier work to examine the process that produces those decisions. (2) We use conversation analysis to document the questioning of potential jurors that precedes the decision to seat or strike a juror, or to excuse her for cause. Our preliminary analysis of uniquely rich archival data suggests ways in which the discourse of jury selection varies by race, and begins to suggest that the evaluation of fitness for jury service itself is skewed and contributes to racial disparities in jury selection. This article provides the foundation for future work in that promising vein.

Jury selection unfolds in stages. The judge and sometimes the attorneys first question potential jurors to establish their ability to be fair. Any juror who cannot be fair will be excused. Jurors next face peremptory challenges by both parties. Parties may dismiss potential jurors with a peremptory challenge for any reason or no reason at all, except race or gender. In this way, the parties feel confident that the system is fair. (3)

The process has, however, been plagued by racism. In Batson v. Kentucky, the Court issued a clear constitutional prohibition against consideration of race in strike decisions, holding that purposefully excluding people from jury service based on race was unconstitutional and undermined public confidence in the justice system. (4) The Batson Court built on a significant line of cases seeking to make juries more inclusive. (5) Nevertheless, strong evidence suggests that improper factors continue to play a role in jury selection. While the Supreme Court established an elaborate three-step process for challenging a strike as based on race, parties can readily defeat the challenge in the third step by proffering a plausible race-neutral reason for the strike decision. (7) Trial courts rarely reject these reasons as disingenuous or "pretextual." (8)

The Batson regime suffers from a major design flaw as it was intended to counter intentional discrimination. (9) Accordingly, attorneys strongly deny any suggestion that they engage in intentional discrimination. (10) This may or may not be true. Substantial social-psychological evidence supports the possibility that people--including prosecutors, defense counsel, and judges--harbor stereotypes about race that bear on people's attractiveness as jurors. (11) Evidence also suggests that both prosecutors and defense counsel use race as a proxy for bias, despite the constitutional prohibition. (12) In these instances, voir dire may serve as a tool to develop race-neutral justifications for the anticipated race-based strikes.

Significant psychological research suggests that racial bias also operates below the level of conscious awareness to affect people's perceptions and behaviors. (13) In these instances, stereotypes about which demographic groups are more or less likely to convict and ultimately sentence a defendant to death operate as an implicit starting hypothesis that informs how they collect information during the voir dire process. (14) The information collected then reinforces the stereotype and increases the likelihood that racial stereotypes influence strike decisions. (15)

Either way, the voir dire process might contribute to the improper influence of race. This research project seeks--in time--to document that contribution as part of a larger effort to limit the influence of race on jury selection. We coded the process of jury selection for 792 potential jurors across twelve randomly selected North Carolina cases in which the defendant received the death penalty. (16) We coded these conversations according to a rigorously tested method of conversation analysis in which every complete thought expressed receives a discrete pre-defined code. (17)

In this article, we explain how we adapted this methodology to jury selection, and then present an overview of the data. In Part I, we review the evidence that despite the Supreme Court's clear prohibition, race continues to matter in jury selection and explain why this may be so in light of the psychological processes at work. Part II reviews the history of conversation analysis. Part III explains the theory and details of the purposive sample frame. It then explains how we adapted the conversation coding methodology to this project and provides coding details. In Part IV, we present our sample and offer a closer look at ways in which the coding scheme can be used in analysis. In Part V, we discuss the implications of these patterns and future avenues of research.

1. RACE DISCRIMINATION AND JURY SELECTION

   Despite the Supreme Court's efforts in Batson to curb racial bias in the use of peremptory strikes, stark racial disparities persist. (18) While racism continues to influence jury selection, (19) the disparities also arise from other more-subtle psychological processes. (20)

   1. DISCRIMINATION IN JURY SELECTION

      Jury selection involves two distinct reviews of potential jurors. (21) First, a trial judge should remove any potential juror for "cause" if there is evidence that the juror cannot be impartial and follow the judge's instructions. (22) There is no limit to the number of jurors who may be removed for cause, but the basis for doing so must be explicit and fall within specific categories relating to the juror's fitness to serve (e.g., pre-existing opinions about the case or a relationship with one of the parties). (23) Second, each party may peremptorily remove, or "strike," a limited number of potential jurors for any reason other than race or gender, and typically without explanation. (24) While each review serves a well-established purpose of ensuring a fair and unbiased jury, the discretion afforded parties in exercising their peremptory strikes heightens the risk that improper factors such as race will influence decision making. (25)

      Although consideration of race in strike decisions is constitutionally prohibited, research in both law reviews and social science journals indicates that race continues to play a role. (26) The difficulty of uncovering racial bias--whether deliberate or unconscious--has led many to conclude that the Batson regime cannot counter discrimination in jury selection. (27) Many scholars and several judges have called for the wholesale abolition of peremptory strikes. (28) Others have suggested changes to the Batson regime, such as reducing the number of peremptory strikes available to each side, so as to limit the opportunity for discrimination. (29)

      While scholarship about peremptory challenges is extensive, data about how parties exercise these challenges in trials is limited. A significant body of experimental work has examined the role of race in mock jury selection. (30) Anecdotal evidence of discrimination also exists. In a 1986 training video, for example, Philadelphia prosecutor Jack McMahon emphasized the importance of striking certain kinds of jurors, such as "blacks from low-income areas" and blacks who are "real educated." (31)

      Only a handful of published studies, however, have examined how parties strike jurors in actual trials. Every study of which we are aware found substantial...