The Jury Talks Back


Juror Bias

Filed under: Uncategorized — JRM @ 2:00 pm

Peremptory – or causeless – challenges to jurors can be made for certain reasons, but not others; this story talked about an allegation of malfeasance based on a prosecutor striking a fat juror.

Let me start with how peremptory challenges work. Peremptory challenges are challenges without cause. Challenges for cause (“All cops are liars,” or “He’s obviously guilty. Otherwise, he wouldn’t be sitting there.”) are unlimited. In all jurisdictions I’m familiar with, each side has some number of peremptory challenges, or challenges without cause.

The reasons for those challenges range mightily. Attorneys throw off people for hairstyles, clothes, grumpy facial expressions, crossed arms, occupations, and dozens of other reasons.

As I’m prone to do on these criminal law hypos, we begin with a clean slate. You don’t have to worry about what the law actually is. So, assume you get to make up the law, and this includes the lawyers in the crowd.

Let us suppose that virtually all experienced prosecutors in Irishtown have discovered that, all else being equal, people of French ancestry are far more likely to vote not guilty than people of Irish ancestry. Names are useful to guess what ancestry people have.

By “all else being equal,” I’m saying that if an Irish person and a French person answer the questions the same way, with the same intonations, and have the same job/marital status/everything else, the Irish person is significantly more likely to vote for guilt. Prosecutors suspect this is because the French feel oppressed by the majority Irish population. Please assume, for these purposes, that prosecutors are very likely right about the tendencies of voting, though you need not assume they are right about the reason for those tendencies (maybe the French just like surrendering.)

Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.

Let’s take another one: Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?

And, number three: Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation?

Last one: Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?

Again, this is about what the rules should be. What do you think? I will get back to this in a couple of days, though there may be a delay due to a trial and other work duties.



  1. Peremptory challenges are intended to be freebies to each side. Otherwise there’s no reason to have them at all. If you’re allowing freebies, then I don’t think any reason at all needs to be given, or for any second-guessing to be allowed. Any ‘limits’ you try to impose on these freebies just undermines the reason they exist in the first place.

    Yet these freebies do allow lawyers to game the system and set up juries to their side’s benefit, rather than the intent, which is to use a random sampling of the public as a neutral judge of guilt.

    I’d let the peremptory challenges be at the sole discretion of each side, but I’d closely limit the number.

    One or two (per side) at most. More than that is subverting the whole intent of picking a random jury.

    Comment by Dan D — 2/8/2009 @ 2:42 pm

  2. I’m with Dan D on this one – too many challenges allow lawyers to “pack” the jury. As for the hypotheticals, it doesn’t matter. The whole idea of peremptory challenges is that no reason need be given. Limit the number and be done with it.

    Full disclosure: I am not a lawyer, nor do I play one on TV. I am a warehouse supervisor and amateur military historian.

    Comment by cvproj — 2/8/2009 @ 2:49 pm

  3. Jury of peers is not a hard standard to meet, imo. A limited number of peremptories is fine – even for cases where the pool has been whittled down substantially prior to voir dire.

    I’d give each side a minimum of three and 5% for any pool larger than 100, or a pool that grows to more than 100.

    To me, the problem with seating a jury is that far too often, for cause challenges are allowed, even for the the most spurious/tangential reasons.

    Comment by Ed — 2/8/2009 @ 6:36 pm

  4. [devil’s advocate]

    Why does it have to be fair or even? Why cannot counsel for a gay defendant challenge as many straights as possible, while complaining when the prosecutor challenges gays?

    After all, gays are a protected class and convictions should be hard. This would not be the first unfair thing in the system: unanimous convictions; proof beyond doubt; defense rights of discovery, etc. Why not this, too?

    Just asking.

    [/devil’s advocate]

    Comment by Kevin Murphy — 2/8/2009 @ 8:31 pm

  5. In a lot of courtrooms, judges do all the voir dire. Lawyers are not allowed to question the venire at all. In many, they are not even allowed to submit a question to the judge to ask a potential juror.

    Peremptory challenges are a small way of preventing a jury trial from becoming a bench trial by proxy, just for one thing.

    Comment by nk — 2/8/2009 @ 9:00 pm

  6. #5 – If judges are abusing their discretion and are packing the juries themselves, then the answer is to get rid of those judges or limit a judge’s power to select jurors.

    Giving the lawyers (on both sides) the ability to pack juries as well doesn’t solve anything and just turns the whole thing into a sham.

    A judge should not have any more peremptory challenges then the two sides do (if the judge gets any at all, I’d prefer they didn’t). Any other dismissals should only be for cause.

    Abuse of for-cause challenges is an issue not addressed in this thread, but anyone (lawyer or judge) challenging a juror for cause should be required to clearly state the cause for the record. If the record shows abuse, then the rules for for-cause dismissals can be tightened.

    Comment by Dan D — 2/8/2009 @ 11:34 pm

  7. Rather than going through the pool one-by-one, I’d rather that each side gave each potential juror in the pool (which should have, say, at least three times as many members as slots, 14*3=42) a one-of-three score: 1) reject for cause (state) 2)reject without cause 3) accept (there must be at least as many accepts as rejects without cause.) While there are fewer than twice the number of potential jurors marked “accept” by both sides, additions are make to the pool until that number (28 in the example) is equaled or exceeded. The 12+2 are then drawn by lot from the “accepted”.

    Comment by htom — 2/9/2009 @ 11:32 am

  8. “Cause” and “reason” seem to be the same thing in this situation. So is the lawyer really required to state the cause of his no-cause dismissal? Doesn’t it then become a for-cause dismissal?

    Comment by brobin — 2/9/2009 @ 3:35 pm

  9. Peremptory challenges SHOULD be completely discretionary. No peremptory challenge should be voided at all, even if it appears that one side or the other is basing its challenges on race, sex, religion, age or any other category. Of course, such challenges should be relatively few, say 2 or 3. A judge should have no peremptory challenges.

    Comment by Ira — 2/11/2009 @ 8:28 am

  10. JRM: I’m not sure what I think the rules should be. (I should note I was bounced off of a jury by a prosecutorial peremptory challenge this morning, which might bias my answers. :)). Certainly we want juries to be as close to unbiased as we can get them; but I also think it’s important that a defendant be tried by a jury of his peers, and I think that our system doesn’t pay enough attention to that goal. So I have a serious problem with hypothetical #4: I think that bouncing all the men off of a rape jury would deny the defendant the benefit of having a jury of his peers, even if the prosecutor had a good reason to believe that it would reduce bias.

    In fact, I’m not comfortable with the hypos in general. “Prosecutor believes that younger jurors are less likely to convict than older jurors.” Well, that may be … but the goal shouldn’t be to remove people who are less likely to convict, it should be to remove people who are biased. Maybe it’s the case that older jurors are biased in favor of conviction. :)

    That said, except for example #4, if the issue is that the Prosecutor beleives that younger jurors, French jurors, or gay jurors are more likely to be biased, then I have no problem with using the peremptory challenge to remove them. But if the issue is that the prosecutor thinks they are more likely to acquit, that isn’t enough; because “more likely to acquit” doesn’t necessarily indicate bias.

    Comment by aphrael — 2/11/2009 @ 12:59 pm

  11. Do away with pre-emptory strikes altogether, and severly limit for-cause. This included keeping people who show great animosity towards being called for jury duty to begin with. Jury duty is one of very few tasks that is considered a manditory part of US citizenship, it should not be easy either to get out of or exclude people from that exercise.

    Comment by Soronel Haetir — 2/12/2009 @ 8:34 am

  12. Having been in the jury pool and jury room, I would want all jurors with an agenda to be excluced, and those that hide their agendas, but reveal them in the jury room to be perp walked out of the court in front of everyone.

    It is not a fair trial to have on the jury someone who will not listen to both sides and to judge the evidence fairly.

    Comment by PCD — 2/12/2009 @ 8:53 am

  13. PCD: Indeed. The peremptory challenges are, however, a very … opaque … way to exclude jurors with an agenda.

    Comment by aphrael — 2/12/2009 @ 9:35 am

  14. Aphrael,

    You can only exclude when such an agenda is disclosed before the jury is seated.

    My neighbor in Anaheim could have strangled a fellow juror. This “donkeyhole” waited until being sequestered that he, “Could not accept the word of any police officer” and that “drugs should be legalized”. Needless to say the idiot hung the jury 11 to 1 preventing a conviction of a violent drug dealer. That juror ought to have been perp walked out through open court and the alternate seated to start the deliberations.

    Comment by PCD — 2/12/2009 @ 11:53 am

  15. There should be no limits on the reasons one can use peremptory challenges. It’s fairly hard to get a juror dismissed for cause, and a lot of people, by virtue of their membership in certain group, will be disproportionately likely to be either sympathetic to your adversary for no good reason or unsympathetic to your cause for no good reason. And you won’t be able to prove it–but sometimes you’ll just know it. We make decisions in our own lives based on such unprovable intuitions all the time, because, despite the limited information we have at our disposal, it’s the best that we can do. That’s simple common sense. We should have more common sense, not less, in our methods of selecting juries. And if that produces ugly results, then much of the time that’ll be only because we get even uglier results when members of certain groups are significantly more likely than others to do the wrong thing when they become jurors.

    Striking a juror for reasons that smack of a lawyer’s bigotry is a far lesser injustice than letting a verdict come out the wrong way because of a juror’s bigotry. And it’s not just a matter of which injustice is the graver; it’s also a matter of what harm is caused. At worst, the ostensibly improper striking of jurors offends many people’s sense of justice, but a verdict that comes out the wrong way jeopardizes the safety of us all.

    Comment by Alan — 2/12/2009 @ 11:56 am

  16. Hmm. I think many drugs should be legalized; but the jury isn’t the place to answer that. My job as a juror is to determine if the evidence presented causes me to believe certain facts about what did or did not occur. If it does, I find one way; if it doesn’t, I find another. My political preferences don’t matter.

    Comment by aphrael — 2/12/2009 @ 11:57 am

  17. I can’t see any good way to regulate peremptory challenges. A clever lawyer can usually come up with an “acceptable” cause to strike, regardless of his actual intent.

    How about this: impanel 16, 18, or 20 jurors, then let each side strike 2, 3, or 4. That should generally produce a balanced jury, unless the pool is skewed.

    Comment by Rich Rostrom — 2/12/2009 @ 3:51 pm

  18. Forgetting what the law is, as per the rules: I think that if there are going to be peremptory challenges, that it makes little sense to have any additional rules. All that does is encourage rules lawyering — the prosecutor, say, who doesn’t want any Jews on his panel gets around it, easily, by “remembering” that what he really doesn’t like are wide ties, narrow ties, no ties, or whatever.

    Comment by Joel Rosenberg — 2/12/2009 @ 4:29 pm

  19. This is actually one of the few areas of law that could be subjected to statistically meaningful experimentation.

    Take a video of a certain number of trials–close cases, slam dunk prosecution wins, and slam dunk defendant wins . Pull together two statistically identical jury pools. Have the first pool use no challenges. Have experienced prosecutors and defense lawyers use challenges on the second, larger pool. Pair up the juries from each pool, show each pair the same tape separately, and see if the results are the same, and if not, how they differ.

    If there are any prosecutors out there considering moving to academia, this is your first project.

    Comment by Cyrus Sanai — 2/26/2009 @ 1:56 pm

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