Preempting peremptories

As I’ve noted before, there are times when I’m staring at a story, thinking about writing a post, when a few days later I come across something else that ties in nicely with the first. I have now concluded this is because of my unusually high midi-chlorian count and the Force is speaking to me.

Nevertheless, a few days ago, I noticed this news article from Mass that reported that the Mass Bar Ass’n is forming a task force (yeah, one of those) to examine the use and efficacy of peremptory challenges:

Chairing the task force is Richard P. Campbell, a bar association vice president and the founder and chairman of Campbell, Campbell, Edwards & Conroy in Boston.

Campbell, […], said some members of the Trial and Appeals courts and even academics, such as law professors, are questioning the usefulness and relevance of the peremptory challenges.

Right on cue, I stumble across this new academic paper titled “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts”, which argues essentially that peremptory challenges are useless and states should eliminate them. From the summary:

Peremptory challenges systematically shift jurors toward the majority view of the population by favoring median jurors over extreme jurors. If the population of potential jurors is skewed in favor of conviction – as empirical evidence suggests is usually the case – then peremptory challenges have the unexpected result of making convictions more likely, rather than promoting reasoned deliberation without prejudice to the result. This is troubling when jurisdictions almost universally award more peremptory challenges in trials involving the most serious crimes. And this effect is magnified when attorneys have more complete information about jurors, suggesting the problem may become worse in the future.

Moreover, juries selected with more peremptory challenges become more ideologically and demographically homogenous, even when attorneys do not engage in discrimination, reducing the accuracy of jury verdicts. Although this second effect has been seen empirically, the results of the models suggest that it is an inevitable result of the peremptory challenge process rather than an effect of discrimination by attorneys.

Naturally intrigued, I began reading the paper in earnest. I had to pause, however, when the author listed the two forms of jury selection: sequential selection (aka strike and replace or jury-box) and the struck-jury method. In that, there is also variance because the methods can be ordered or unordered. I paused because we don’t do either of those here in Connecticut. We, of course, have individual voir dire. Which means we question each juror individually, alone, outside the presence of other potential venirepersons. [See these posts for a previous conversation about the merits and demerits of the various systems as told by, you know, real lawyers.]

The paper talks about the mathematics of selecting jurors in those two methods: do you compare the one venireperson to the known panel in the case of the struck-jury method or do you compare the ones in front of you to the randomly selected ones who might come after? Besides, in most states, jury selection is rather quick and with limited questioning by the attorneys.

In a sense, in CT, we also play the game of comparing the one juror with the unknown jurors to follow, but we have the luxury of spending as much time as necessary with an individual and making a determination of whether we want that particular person regardless of who else might be out there. Frankly, I can’t remember the last time during jury selection that I either used all my challenges or found myself scanning the list of those yet to come to see if I wanted anyone in particular.

The paper also makes some extravagant claims (supposedly backed by data) that show the more homogenous juries are more likely to be skewed toward conviction. I don’t know if that’s true or not, but the one statement I agree with in the paper is that most peremptory challenges are basically guesses made by lawyers.

There’s no such thing as a sure thing in selecting jurors: it is an art, not a science. When we excuse jurors we do it based on gut – a “feeling” that we got. We may have gotten in completely wrong, just as we do when we select someone, from time to time.

Despite my decided lack of interest in this paper, I’m writing about it because it may be useful to others. Let me know if you read it and found it thought-provoking.

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