Unfit to Rule?
The Case for Mandated Explications of Peremptory Challenges
by Janani Krishnan-Jha | Fall 2018
In 1791, the U.S. Congress ratified the Sixth Amendment to the U.S. Constitution, declaring that all criminal defendants would receive the right to be tried by an “impartial jury of the state and district wherein the crime shall have been committed” (U.S. Const. amend. IV). This language--the right to an “impartial jury”--has prompted legal debate over the last two hundred years, centering around the question: what constitutes impartiality? Today, that question persists in the context of jury selection processes, and specifically the methods through which attorneys select and exclude jurors for criminal trials.
Two apparatuses currently exist through which attorneys can exclude a potential juror from trial: challenge for cause, or exclusion from trial based on a concrete reason why a potential juror would not be able to evaluate the case impartially; and peremptory challenge, or the unexplained removal of an individual from the panel of prospective jurors. Attorneys are permitted a limited number of peremptory challenges per case, the specific number varying due to state laws and severity of the crime. Developed initially to allow attorneys discretion in selecting jurors who would be sympathetic to their side, the peremptory challenge has been exposed by social psychologists as problematic in its implementation. Specifically, psychologists have demonstrated how attorneys can and have used peremptory challenges to prohibit jurors of certain races, genders, and religious backgrounds from entering the jury pool (Sommers & Norton, 2008). The research is clear, and the problem is readily apparent. Discrimination in peremptory challenge causes inequity in citizens’ access to the law. Thus, given evidence that peremptory challenges in jury selection allow attorneys to informally discriminate against potential jurors of certain backgrounds, the U.S. government should pass legislation mandating attorneys to submit written pretrial explanations for each invocation of peremptory challenge.
An understanding of modern criticisms of peremptory challenge requires a recognition of its fraught history. Until the 1980s, attorneys could use peremptory challenge to exclude potential jurors from criminal trials for any reason for any reason they deemed fit, discriminatory or otherwise. In 1986, the Supreme Court decided in Batson v. Kentucky that the use of peremptory challenge to exclude potential jurors solely on the basis of the their race violated the Equal Protection Clause of the Fourteenth Amendment and was therefore unconstitutional. The Court extended this precedent to apply to juries in civil cases in 1991 (Edmonson v. Leesville Concrete Company), and included sex to the list of disqualifying criteria in 1994 (J. E. B. v. Alabama ex rel. T. B.). In addition to rendering the discriminatory application of peremptory challenge illegal, these cases introduced methods of addressing the inappropriate use of peremptory challenge. Today, parties can invoke a Batson challenge to appeal cases on the basis that the prosecution improperly employed peremptory challenge in the jury selection process. The creation of the Batson challenge seemed to peripherally confront the issues surrounding peremptory challenge, to diminish the prevalence of bias in jury selection processes and increase overall procedural justice.
However, safeguards such as the Batson challenge have not eliminated attorneys’ reliance on objectionable criteria in implementing peremptory challenges. Attorneys are individual people. Though they may recite oaths to faithfully argue and interpret the law, they are still at the bequest of the implicit processes that impact each person’s capacity for cognition and rational thought. Thus, in order to best understand attorneys’ troubling decisions, we can turn to psychological research on implicit bias, stereotypes, decision-making, and the marriage of these phenomena in legal contexts.
Researchers have found that discriminatory implicit bias, or the subconscious application of internalized stereotypes and negative concepts toward certain groups of people, exists in most individuals and permeates close to every level of societal interaction (Stanley et al., 2011). Since 2002, considerable evidence has been discovered supporting the theory that most humans possess discriminatory bias (Nosek, Banaji, and Greenwald, 2002). While researchers have delineated a positive relationship between explicit and implicit attitudes towards various demographics of people, recent research suggests that even individuals who self-report low levels of explicit prejudice harbor discriminatory implicit bias and express this implicit bias through day-to-day interactions with people from marginalized communities. For example, White individuals who self-report low levels of racial prejudice still feel discomfort shaking the hand of a Black person (Pettigrew, 1987). Recent research suggests that implicit bias occurs automatically, naturally, and subconsciously within humans. Thus, implicit bias itself reflects human’s natural predisposition toward social categorization (Fiske, 2005).
Social psychologists have also long understood the influence of stereotypes on decision-making processes. Specifically, social categorization based on salient visible traits, such as race, occurs quickly (Fiske, 1998) and can prompt the rapid invocation of implicit biases (Greenwald & Banaji, 1995). As humans almost universally possess implicit bias (Greenwald, Nosek, & Banaji, 2003), implicit biases also affect attorneys’ jury selection decisions. Several pieces of psychological evidence support this theory. For example, scientists have discovered that attorneys likely consider prospective jurors’ races, either implicitly or explicitly, in their decisions to employ peremptory challenges (Sommers & Norton, 2008). Moreover, attorneys are unlikely to self-report making decisions influenced by a prospective juror’s race (Sommers & Norton, 2008). These dual phenomena--the influence of race in peremptory challenge decision-making and the lack of disclosure on the extent of this influence--point to the insufficiency of the Batson challenge in reducing discriminatory applications of the peremptory challenge. Indeed, scientists have found that while race does impact attorneys’ decisions to exclude jurors on the basis of race, attorneys typically conceal the impact of race when questioned by justifying their decisions in race-neutral terminology (Sommers & Norton, 2007). Thus, the psychological literature on peremptory challenge suggests that the Batson challenge frequently does not serve its intended purpose, implying the need for more safeguards against the improper use of peremptory challenge.
By requiring attorneys to tender written explanations for each use of peremptory challenge before trial, courts could reduce the risk that attorneys will rely on objectionable criteria in deciding which potential jurors to exclude from trial. If an attorney’s decision is appealed with a Batson challenge, that attorney will undoubtedly feel social pressure to appear egalitarian in their decision-making, preserve their reputation and career, and render a race-neutral explanation for their decision. In these circumstances of external pressure, legal actors are more likely to create false race-neutral explanations for their behavior (Gaertner & Dovidio, 1986; Sommer, 2006). Here, the logic is intuitive. By setting a standard of unobjectionable criteria early, courts reduce the risk that attorneys will exercise discretion in a discriminatory fashion and retroactively rationalize their decisions if challenged. This logic is grounded in psychological literature, as well: requiring objective criteria for decision-making upfront lessens the risk of people considering their “gut feeling” in making their final decisions, sentiments often cultivated through implicit preferences and biases (Banaji & Greenwald, 2013). Thus, mandating written explanations upfront will lessen the risk of false explanations being used to justify discriminatory decision-making, and will incentivize attorneys to be more honest in their explanations and rely on unobjectionable criteria in their decision-making processes.
Opponents of this action will argue that peremptory challenges were created to allow attorneys discretion in selecting juries that will fairly try their case. While attorneys are often successful in identifying prospective jurors that may be biased (Hans & Vidmar, 1982), we cannot allow attorneys to consider discriminatory information in coming to these decisions. We cannot prioritize discretion at the expense of justice and fairness. By allowing attorneys the ability to exclude jurors on the basis of race, sex, and other demographic factors, we not only infringe on the right of the defendant to an impartial jury, but we also infringe on the right of a prospective juror to be evaluated on the basis of merit. Other opponents may contend that by requiring explanations for peremptory challenge, the government is effectively transforming the peremptory challenge into a variant of the challenge for cause. This argument is fallacious, as it fails to consider that the modified peremptory challenge would still retain attorney discretion at its core. Attorneys could still invoke trivial concerns in their explanations—-as long as these concerns do not transgress the law, attorneys are free to rely on any criteria they desire.
All in all, attorneys should have to submit written explanations for each use of peremptory challenge to mitigate the effects of implicit bias on jury selection. Psychological evidence points strongly to the ineffectiveness of the mechanisms that already exist to combat discrimination in jury selection, suggesting the need for heightened reform. To accomplish procedural justice, we must ensure that every defendant receives a trial that is evaluated impartially. Only then can our criminal justice system be free of bias, discrimination, and prejudice.
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 U. S. Constitution, Amendment 4.