- Tsongas Litigation Consulting
DANGER! PEREMPTORY CHALLENGES UNDER ATTACK FROM WASHINGTON STATE SUPREME COURT JUSTICE
Recently the highest court in Washington seems to have set their sights on the issue of peremptory strikes in the jury selection process. The article, “Wash. justices decry race bias in jury selection,” discusses an argument made recently by state Supreme Court Justice Steven Gonzalez that the use of peremptory strikes increases the potential for racism to play a role in jury verdicts. Justice Gonzalez argued that peremptory strikes, a 700 year-old practice, have been used to unfairly eliminate minority jurors from jury panels, and according to Justice Gonzalez, should be eliminated. However, this is a classic example of “throwing the baby out with the bathwater,” as the proper use of peremptory challenges, when informed by information gathered through robust voir dire and supplemental jury questionnaires, can actually reduce the instances of bias in jury decision-making.
Jury consultants have the opportunity to observe more mock jury trial deliberations and conduct more in-depth post-verdict interviews than virtually anyone else in the judicial system. And we can tell you a single individual with bias or prejudice against a particular corporation, against management in an employment case, against law enforcement, or against a particular “type” of plaintiff can exert tremendous influence on a jury. These individuals may not be eliminated for cause, and therefore the bias can too heavily influence the outcome of deliberations.
Justice Gonzalez cites the use of stereotypes to determine “fair” jurors as a reason peremptory strikes fail to achieve its purposes. We agree with this assessment. To be frank, generalizing behaviors and attitudes from demographics is a poor strategy. Attitudes and experiences are much better predictors. For example, making decisions about who to strike based on race is a poor use of limited peremptory strikes. However, if a person of a particular race has had experiences and attitudes antithetical to a party’s case, they may be a solid candidate for a peremptory strike. Jury consultants do not recommend choosing individuals for strikes simply based on a few demographic characteristics, even if they are fed into a computer program. We strongly counsel attorneys not to rely on intuition, lore, and anecdotal experience. Instead, we advocate talking to jurors and, whenever possible, asking questions through a survey to determine attitudes and experiences unique to that individual. This information can then be used to make a more informed decision about who might be biased during a trial.
The big problem is not with peremptory strikes, but with the limited tools available to identify potential prejudice in jury selection. If the goal is to have a jury that is composed of thoughtful, open-minded, unbiased, and non-prejudicial jurors, more jury selection tools need to be used, not less. Eliminating peremptory strikes will not solve the problem of bias and prejudice activating during the jury’s evaluation, deliberation, and eventual verdict formulation process. The elimination of this tool will instead increase the risk by removing one of the only ways a trial team has to “de-select” an individual who has experiences and attitudes antithetical to their case.
It is shortsighted to suggest that the process should be eliminated because some (or even many) attorneys do a poor job identifying the “right” jurors to strike, as Justice Gonzalez argues. Faulty execution does not mean the system is inherently flawed. Instead of giving up on the premise that attorneys can make good decisions about who may be biased, we should give lawyers more tools to identify those jurors with actual attitudes and experiences that preclude them from being a fair juror.
The solution, then, is not fewer tools for jury selection, but more. (http://www.americanbar.org/content/dam/aba/migrated/juryprojectstandards/principles.authcheckdam.pdf) More developed jury selection procedures, more sophisticated education on how to evaluate and reveal explicit and implicit bias; and more use of supplemental juror questionnaires that draw on scientific principles of identifying bias and prejudice. (http://blogs.seattletimes.com/today/2013/08/wash-justices-decry-race-bias-in-jury-selection/)
All of these are key to creating a solution. Instead, in some federal courtrooms, trial lawyers are only given 10 – 15 minutes of voir dire, and little opportunity to administer a questionnaire. Given such a small amount of information, it is no wonder some attorneys are unable to discover potential bias.
Justice Gonzalez believes judges can handle the true instances of bias by eliminating those slanted jurors through cause challenges. However, judges are often loath to dismiss a person for cause, choosing instead to rehabilitate them with questions along the lines of, “Can you be fair?” How many people — in a public forum, speaking to a judge — will admit that they cannot be fair? It rarely happens. Instead, the court often tries to talk them off that ledge. Bias and prejudice can be implicit as well as explicit and extremely difficult to overcome. Recent social science on motivated reasoning reveals how values, experiences, and worldviews “bind” the reasoning in which people engage. In other words, people select information that confirms their views of an issue and the world, and reject or even forget information that is inconsistent with their views. This is a cognitive process, not always an explicit strategy. It is implicit. Contrary to Justice Gonzalez’s assertion that jurors will put aside their biases when confronted with the solemnity and process of deliberations, we frequently see the discussion go the opposite direction, with strongly biased individuals dominating the process and wearing down jurors with less emotional investment in the case.
Courts should certainly place a higher bar on the legitimacy of peremptory strikes that appear to be targeting people of a particular race, ethnicity, or gender. A critical eye should be kept on the choices trial lawyers make. But if there is a strong bias, attitude, or worldview expressed in voir dire, the race, ethnicity, or gender of the juror should not matter. The trial team should have a right to use a preemptory strike against those jurors.
Justice Gonzalez has identified an important problem. But one of the proposed solutions misses the target, and may well make the general problem of bias and prejudice in general more, rather than less, prevalent. There are other solutions that need to be considered, developed, and implemented. These solutions involve more opportunity to identify and remove real bias so that all parties can receive a fair trial.