Jury Selection

Roger Ford, Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts, 17 George Mason Law Review 377 (2010), available at https://chicagounbound.uchicago.edu/journal_articles/1427/

In this article, the author creates several statistical models to test the validity of peremptory challenges. He argues that although previous research has indicated that peremptory challenges are not used effectively by prosecutors or defense attorneys, recent technological breakthroughs could mean that attorneys will be better able to identify those jurors who are more likely to convict or acquit. Creating models that assume attorneys act logically, and are based on the expectation that attorneys will challenge those jurors who are worse for their case, the author found that if peremptory challenges are used in the way they were intended, this would make juries more ideologically and demographically homogeneous while simultaneously decreasing the accuracy of jury verdicts. He suggests that peremptory challenges should not be eliminated entirely, but that states should severely limit the number of challenges that they allow for each side.

Michael B. Mushlin, Bound and Gagged: The Peculiar Predicament of Professional Jurors, 25 Yale Law & Policy Review 239 (2007), available at https://digitalcommons.pace.edu/lawfaculty/461

This article explores the controversy over allowing jurors with professional expertise to serve on juries. Specifically, the problem occurs when these jurors use their expertise to form opinions and then share these opinions with other members of the jury and these opinions have not been subject to cross-examination. As the author demonstrates, professional jurors are serving on juries more than ever due to the fact that many occupational restrictions on jury service have been eliminated. The author recommends that attorneys should be allowed to strike jurors for cause during voir dire, but once that juror is empanelled, he or she should be allowed to share his or her opinion freely with other members of the jury.

Camille A. Nelson, Batson, O.J., and Snyder: Lessons from an Intersecting Trilogy, 93 Iowa Law Review 1687 (2008), available at https://scholarspace.manoa.hawaii.edu

In this article, the author argues that racial discrimination is still prevalent when it comes to jury selection, despite the Supreme Court's decision in Batson v. Kentucky. Beginning with an analysis of Batson, the author explains that the language of the case had wide-ranging potential to eliminate jury selection based on race. She then contrasts this goal with the reality of what occurred in the O.J. Simpson case, where race played a major part in how potential jurors and the populace saw the case. The author argues that the most obvious example of Batson's failure to change the status quo is reflected in the prosecution's use of peremptory challenges to achieve an all-white jury in Snyder v. Louisiana. She concludes by labeling the Supreme Court's decision in Batson a "missed opportunity."

Samuel R. Sommers & Michael I. Norton, Race and Jury Selection: Psychological Perspectives on the Peremptory Challenge Debate, 63 American Psychologist 527 (2008), available at https://www.hbs.edu/faculty/Pages/item.aspx?num=34694

In this article, the authors employ a psychological framework to analyze the current use of peremptory challenges as they occur during voir dire. After providing a brief summary on the relevant law guiding the use of peremptory challenges, the authors review current psychological literature that analyzes the impact of race on an individual's decisions. This leads them to the conclusion that, even when attorneys are not consciously taking race into account, a potential juror's race is usually an important consideration when an attorney uses a peremptory challenge. Consequently, the authors conclude that the current peremptory challenge system is insufficient and they suggest several reforms that can be used to improve the process.