Negotiating peremptory challenges.

• Author: Morrison, Caren Myers
• Position: Introduction through II. The Trouble with Batson A. Unwieldiness, p. 1-30

TABLE OF CONTENTS INTRODUCTION I. THE CONTESTED FUNCTION OF THE PEREMPTORY CHALLENGE A. The Origins of the Challenge B. Justifications for the Challenge C. The Peremptory Challenge in America D. Responses II. THE TROUBLE WITH BATSON A. Unwieldiness B. The Problem of Implicit Bias C. Misunderstanding the Attorney's Role D. Batson's Failure to Remedy the Exclusion of Minorities from Juries III. NEGOTIATING PEREMPTORY CHALLENGES A. The Mechanics of the Proposal B. The Benefits of a Negotiation Model C. Critiques and Rebuttal CONCLUSION INTRODUCTION

"[I]n criminal eases, or at least in capital ones, there is, in favorem vitae, allowed to the prisoner an arbitrary and capricious species of challenge to a certain number of jurors, without sh[o]wing any cause at all; which is ealled a peremptory challenge: a provision full of that tenderness and humanity to prisoners, for which our English laws are justly famous."

--William Blaekstone (1)

Of all the contests of wit and will involved in trial practice, none are as fraught as jury selection. If the trial--the impassioned closing argument or the devastating cross-examination--has pride of place in public mythology, jury selection holds that honor among lawyers. Sometimes said to determine the outcome of a trial even before the first witness is sworn, (2) it is a procedure regarded with a peculiar blend of reverence and suspicion. It can consume weeks of court time and hundreds of thousands of dollars of consultant fees. But the primary source of ambivalence about jury selection coalesces around the peremptory challenge and the complicated, counterintuitive scaffolding we have erected around it to prevent its misuse.

Peremptory challenges, also known as peremptory strikes, enable litigants to remove otherwise qualified prospective jurors from their jury panel without any showing of cause. Empirical study--consonant with common intuition--has long revealed that both prosecutors and defense counsel use peremptory challenges to rid the jury of the types of jurors they find most threatening, and that these types correlate with age, gender, and particularly, race. (3) This means that not only do nonwhite defendants frequently have to face trial without any of their peers on their jury but also that substantial numbers of citizens, who have survived challenges for cause only to be summarily dismissed, are denied the opportunity to participate in an important aspect of civic life.

The framework established by the Supreme Court's 1986 decision in Batson v. Kentucky and its progeny tried to remedy the most obvious abuses of the peremptory challenge based on race, and later, gender. (4) The Court thus required that strike proponents give a "race neutral" reason for the strike and directed the trial courts to assess the credibility of the explanation. But the Batson regime has proved largely unsuccessful. Lawyers are often inhibited from raising Batson claims for fear of antagonizing their opponent or the judge, and judges are inhibited from granting Batson motions because of the implied judgment that the strike's proponent is either a racist, a liar, or both. The requirement of a race-neutral explanation for peremptory strikes has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors. And it is embarrassing to everyone because it is a pretense--everyone is forced to assert, under pains of violating the Constitution, that race was not a factor in their decisions.

While the Batson framework relies on apparently commonsense assumptions about human behavior, these assumptions are contrary to what we know about human mental processes and the influence of race on decisionmaking. (5) The behavioral theories that seem to undergird Batson 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. (6) But these theories are inconsistent with recent advances in cognitive social psychology. While long suspected, there is now substantial empirical evidence that most of us labor under some amount of implicit bias against racial minorities, even when we believe ourselves to be unbiased. (7) The Batson framework operates as if implicit bias barely exists when it almost certainly is a significant factor in jury selection and one that is not amenable to self-report. It is time to subject Batson to behavioral realism--the demand "that the law account for the most accurate model of human thought, decisionmaking, and action provided by the sciences." (8)

There has been no shortage of proposals aimed at remedying racial discrimination in jury selection, ranging from "affirmative strikes" to establishing racial quotas on trial juries. (9) Ultimately, the most effective alternative to Batson would also be the simplest: the abolition of peremptory challenges. Proponents argue that eliminating the challenge would put an end to invidious discrimination, cut down on wasteful litigation, and free lawyers from the contortions of trying to deny all influence of race on their decisionmaking. (10) But abolition presents two problems. First, however compelling the arguments, they cannot override one simple truth: American lawyers like peremptory challenges. Many litigators view peremptory challenges as essential tools for sculpting a jury that will give them and their clients the most favorable audience. As one former litigator has observed, trial lawyers "would sooner dispense with a few amendments to the Constitution than give up peremptory challenges." (11) Accordingly, no U.S. jurisdiction has ever eliminated peremptory challenges. (12) Second, there is an intrinsic value to the peremptory challenge that would be lost if it were eliminated. Peremptory challenges allow litigants to participate in the creation of the factfinder, free from interference by courts. This value of autonomy should not be lightly discarded.

So we find ourselves at an impasse. We can keep tinkering with the formula. We can keep issuing impassioned, but doomed, calls for abolition. Or we can recognize that jury selection, at the discretionary, peremptory challenge stage, simply should not be constitutionalized. It may be time to admit that the Batson experiment has failed because stereotyping in some form is the essence of jury selection. (13) But that does not mean we need to revert to the bad, old days of institutionalized racism, where many prosecutors' offices had policies of systematically purging jury panels of African-American jurors. (14) Instead, we should consider a different approach for using peremptory challenges: that they be allowed only on consent.

If implicit bias is indeed a pervasive fact, the question then becomes how to prevent it from dictating outcomes in a discriminatory way. Having parties swear that no considerations of race entered their minds in deciding which jurors to strike does not provide the moral message we think it does. Instead of sending a clear signal that racial discrimination will not be tolerated, the Batson hearing is usually a far more degrading exercise and one that does not prevent minorities from being summarily excluded from jury service. When explanations such as "he looks like a drug dealer to me" (15) are accepted as "race neutral," the message is effective tolerance of racial bias.

Drawing on empirical studies, psychological research, and the emerging school of behavioral realism, I suggest that courts should abandon the failed constitutional experiment of trying to divine attorney intent. Social science research strongly suggests that such an undertaking is futile and only encourages specious explanations. Instead, we should focus on what really matters: increasing the opportunities for all Americans to participate in jury service, allowing defendants a greater chance to have peers on their jury, (16) and protecting the dignity of all participants, litigants and prospective jurors alike. We should therefore jettison the procedurally unwieldy, inherently unstable world of Batson and replace it with a system in which the parties could determine which prospective jurors should be challenged through negotiation.

Under this proposal, voir dire would proceed as usual. (17) Lawyers would raise any challenges for cause, on which the court would rule. Then, each side would be presented with a panel of twelve qualified, impartial jurors. But instead of each side only conferring with her client or co-counsel to decide which jurors to strike peremptorily, the adversaries would confer with each other. Neither party would have exclusive power to decide, and any strikes would be the product of mutual consent. If the parties...