August 9, 2022

Volume XII, Number 221

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August 08, 2022

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Select Your Jury on Race-Neutral Criteria

At a time of heightened attention toward the disproportionate impact of law enforcement on African-American communities, it matters that prosecutors in many of the same communities appear to be actively limiting the participation of African-Americans on juries. In an illuminating new article, the New York Times reports on a study of strikes in Louisiana's Caddo Parish showing that over the last decade, prosecutors were three times more likely to use peremptory strikes against African-Americans rather than whites, striking fully 46 percent of African-American candidates but just 15 percent of others. The investigation showed similar patterns in other states, particularly in the South. During a five-year period in Houston and Henry counties of Alabama for example, prosecutors used peremptoriness to remove 82 percent of eligible African-Americans from potential juries. 

Of course, the legacy of Batson v. Kentucky is that if attorneys on either side are accused of making racially-biased peremptory challenges, they need to offer a neutral explanation. In some venues at least, that has legitimized the use of a thin cloak of "race-neutral criteria" to cover over what is still, in effect, race-based jury selection. Prosecutors in North Carolina, for example, were found to have circulated a "cheat sheet" of race-neutral reasons, including such all-purpose rationales as "air of defiance" or "arms folded." While bad-faith rationals aren't allowed, that isn't easy to prove. Lawyers just need to give a race-neutral reason, and as Shari Diamond of Northwestern University School of Law points out, "Stupid reasons are okay." The New York Times article continues, "Here are some reasons prosecutors have offered for excluding blacks from juries: they were young or old, single or divorced, religious or not, failed to make eye contact, lived in a poor part of town, had served in the military, had a hyphenated last name [ouch], displayed bad posture, were sullen, disrespectful or talkative, had long hair, wore a beard." The net result of legitimizing bad reasons is to perpetuate racially disparate jury selection. Long after the Civil Rights Act of 1875 -- yes, 1875 -- was intended to eliminate racial discrimination in jury selection, it is time to move beyond the "stupid reasons." Attorneys and the consultants who advise them, need to avoid not just the appearance of race-based selection, but the reality of it as well. In this post, I'll make the argument that selecting on neutral grounds is better legally, better strategically, and better for social justice as well. In addition to that broad argument, I'll also offer some practical implications for selection strategy. 

Race-Neutral Jury Selection Is... 

Better Legally

Batson is the law of the land, and basing your strikes on a potential juror's race is out of bounds. Sure you could come up with another reason for the strike, but offering a bad-faith reason is similarly out-of-bounds and contrary to legal ethics. Basing your strikes on race-neutral reasons -- really basing them on that and not just pretending to -- practically lets you get on with your case instead of getting bogged down in a defense of your strikes and your honesty.  

Better Strategically

In jury selection, attitudes and experiences matter far more than demographics, and there is a generation of social science research to back that up. What you've been through and what you believe will influence your views of a case far more reliably than your age, sex, or skin color. Prosecutors will want to strike those with the least deference and trust in authority, just as defense attorneys will want to strike those with the strongest "law and order" affinity. Sure, those attitudes and experiences will often differ based on race. But not always. Instead of relying on the proxy (race), go straight to the source (attitudes and experience).

And Better Public Policy

Systematically excluding a portion of the population from the administration of justice cannot deliver real justice or the public perception of fairness. As Elisabeth Semel of the death penalty clinic at the law school at U.C. Berkeley notes, "If you repeatedly see all-white juries convict African-Americans, what does that do to public confidence in the criminal justice system?" And, I'd add, that exclusion based on race, even where it occurs in less obvious ways -- e.g., less than total exclusion or within the civil litigation system -- is no less harmful to the ideal or to the practical reality of justice. 

Responsible litigators agree with that already, in theory at least. What's needed, though, is to embrace it in practice. Here are a few ideas for keeping your strikes on the race-neutral side, and they have the added benefit of making it easier to prove that you're on that side as well. 

Best Practices for Keeping Your Selection Race-Neutral

Be Explicit About Your Criteria

It helps to be systematic, to downplay the "gut" and to be clear on what factors make a potential juror better or worse for you. Because you're actually striking and not picking those potential jurors, it helps to focus on the negative side by developing a "High-Risk Juror Profile." That is an analysis, ideally based on both mock trial research, as well as experience in the venue, that identifies and ranks the factors that would make a potential juror less favorable to your side. 

Weight What Matters Most 

Using a numeric weighting scheme can help to make the selection more concrete. Having that scheme on paper can help you defend any of your strikes based on criteria that are broadly applied, and not just used in retrospect to explain the strike of one venire member. That scheme should prioritize the attitudes and experiences that will matter the most. Sure, race will sometimes matter, but typically it will only matter as an indirect measure of something else. For example, opposition to the death penalty is more common among African-Americans, and polls will support that. But instead of striking African-Americans on the theory that they're somewhat more likely to oppose capital punishment, prosecutors should (and do) ask directly about views on capital punishment. The same applies to attitudes about damages, large companies, police honesty, trust in government, etcetera. Race can be a partial predictor of an attitude, but better to ask about the attitude than to rely on race. 

Do Not Give Weight to Race

The other advantage in using a clearly-defined system for prioritizing strikes lies in what you leave out: race. Don't assign any value to race or ethnicity, and the same goes for other demographics like age, sex, and religion. Leaving out the weighting on these factors not only squares with the social science showing that these demographics aren't reliably predictive, but it also serves as a defense in the event that your strikes are challenged based on Batson or its progeny. The same protective steps should also apply to your notes: While you might record the demographics just as a way of remembering these individuals for your out-of-court discussions, don't highlight race or apply any kind of code or notation to single out those members of the venire. And don't use any over-the-counter software packages (like JuryQuest) that rate potential jurors based on race either. 

In public discussions on the issue, the criticism of racial bias in peremptory challenges is often coupled with the recommendation to sharply limit or to do away with peremptoriness all together. That radical solution appears even in Justice Thurgood Marshall's concurring opinion in Batson, noting that the only way to "end the racial discrimination that peremptoriness inject into the jury-selection process" was to "eliminate peremptory challenges entirely." There is a better solution, and it is in the hands of attorneys and consultants: Use peremptoriness for their proper purpose of reducing the kinds of bias that don't rise to the level of cause challenges, but use them based on a reasonable basis, not a "stupid reason."  

Copyright Holland & Hart LLP 1995-2022.National Law Review, Volume V, Number 232
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About this Author

Ken Broda-Bahm, Ph.D., Holland Hart, Rhetoric lawyer, Legal Persuasion Attorney
Senior Litigation Consultant

Dr. Ken Broda-Bahm has provided research and strategic advice on several hundred cases across the country for the past 16 years, applying a doctorate in communication emphasizing the areas of legal persuasion and rhetoric. As a tenured Associate Professor of Communication Studies, Dr. Broda-Bahm has taught courses including legal communication, argumentation, persuasion, and research methods. He has trained and consulted in 19 countries around the world and is Past President of the American Society of Trial Consultants.

303.295.8294
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