Prosecutors and Peremptories

• Author: Alafair S. Burke
• Position: Professor of Law, Hofstra Law School
• Pages: 1467-1488

1467

Prosecutors and Peremptories

Alafair S. Burke

INTRODUCTION .................................................................................... 1468

I. WHY PROSECUTORS SHOULD CARE ..................................................... 1471

II. WHY PROSECUTORS EXERCISE RACIALIZED PEREMPTORY

CHALLENGES ........................................................................................ 1476

A. CULTURAL INFLUENCES .................................................................. 1476

B. COGNITIVE BIASES .......................................................................... 1478

III. PROSECUTORIAL BEST PRACTICES ....................................................... 1483

A. TRAINING IN UNCONSCIOUS AND COGNITIVE BIASES ......................... 1483

B. “SWITCHING” EXERCISES ................................................................ 1484

C. STATISTICS: THE PROOF IS IN THE PUDDING .................................... 1485

CONCLUSION ....................................................................................... 1487

 Professor of Law, Hofstra Law School. The author thanks James Tomkovicz and the

editors of the Iowa Law Review for the opportunity to participate in th is symposium; Bennett

Capers and Robin Charlow for their helpful comments on earlier drafts of this Article; and

Greg Mangini and Toni Aiello for invaluable research assistance.

1468 IOWA LAW REVIEW [Vol. 97:1467

INTRODUCTION

Recently, I had the pleasure of hosting Professor Paul Butler as a guest

instructor to my Criminal Procedure II course, which covers constitutional

rights during criminal adjudication. This course—the “bail to jail” portion of

criminal procedure—is comprised almost entirely of students who intend to

practice criminal law. To open a discussion about Batson v. Kentucky,1

Professor Butler started with a simple case hypothetical of a young African-

American male charged with selling ecstasy at a nightclub. Professor Butler

divided the class into three groups: prosecutors, defense attorneys, and

judges. “Lawyers,” Professor Butler asked the students, “who are your ‘ideal

jurors?’”

The prosecutors wanted older jurors, seen as quicker to convict, less

likely to question authority, and more alarmed by a relatively new drug like

ecstasy. In contrast, the defense attorneys wanted younger people who might

be more discerning of police testimony and less judgmental about drugs.

“What about race?” Professor Butler asked.

It was an African-American student, playing the role of prosecutor, who

raised her hand first. Most black jurors would be less likely to convict, she

reasoned, but some older black jurors might see the defendant as a thug

who misrepresented his community.

“What do the rest of you think?” Professor Butler asked.

The students playing defense attorneys generally thought African-

American jurors would be more sympathetic to the defendant and more

scrutinizing of police witnesses. So did the students playing prosecutors. But

there was some disagreement among students about the interplay of race

with age and class. Interestingly, not a single student said race was irrelevant.

When asked, “Who is your ideal juror?” students may have debated how race

mattered, but none appeared to question that it did in fact matter.2

In Batson, the Court prohibited the use of race-based peremptory

challenges.3 Invoking the Equal Protection Clause, the Court reasoned that

“[c]ompetence to serve as a juror ultimately depends on an assessment of

individual qualifications and ability impartially to consider evidence

presented at a trial,”4 and that “race simply ‘is unrelated to [a person’s]

fitness as a juror.’”5 Yet twenty-five years later, criminal procedure students,

when prompted to make transparent their unspoken feelings about race,

continue to rely on preconceived notions of race-based attitudes in

1. Batson v. Kentucky, 476 U.S. 79 (1986).

2. As Professor Butler notes in his influential book, “While virtually every criminal lawyer

agrees that race matters, there are different schools of thought about how.” PAUL BUTLER, LET’S

GET FREE: A HIP-HOP THEORY OF JUSTICE 12 (2009). Professor Butler also asserts that “[t]he

prosecutor who says he doesn’t consider race when choosing jurors is either stupid or a liar.” Id.

3. Batson, 476 U.S. at 84.

4. Id. at 87 (citing Thiel v. S. Pac. Co., 328 U.S. 217, 223–24 (1946)).

5. Id. (quoting Thiel, 328 U.S. at 227 (Frankfurter, J., dissenting)).