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Legal scholars, by and large, revile peremptory challenges. Allowing parties to unilaterally strike prospective jurors without explanation has been attacked as undemocratic, as prone to manipulation, as a potential First Amendment violation, and-most often of all-as racist. Judges and even prosecutors have spoken out against the procedure. And, although the Supreme Court sought in 'Batson v. Kentucky' to limit the problems of peremptory challenges by constraining parties' ability to strike jurors because of their race, 'Batson's' rule is decried as \"almost surely a failure\" and an \"enforcement nightmare.\"

Peremptory challenges enable litigants to remove otherwise qualified prospective jurors from the jury panel without any showing of cause, and accordingly, are often exercised on the basis of race. In Batson v. Kentucky, the Supreme Court tried to remedy the most obvious abuses by requiring that strike proponents give a \"race neutral\" reason for their strikes and directing trial courts to assess the credibility of the explanation. But the Batson regime has proved spectacularly unsuccessful. It has not ended racial discrimination in jury selection, nor does it adequately safeguard the rights of the excluded jurors.

In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the federal system maintain an unequal allocation of peremptory challenges in any capacity. This inconsistency strikes a chord fundamental to the fairness of our justice system, especially in light of the Supreme Court's failure to eliminate the discriminatory exercise of the peremptory challenge in Batson. This Comment argues that, at this time, the federal system and remaining states should not move toward equalizing the number of peremptory challenges afforded to the defense and prosecution because allocating a greater number of peremptory challenges to the defense best serves theoretical fairness in the justice system, including maintaining the community's perception the justice system's fairness. Additionally, allocating a greater number of peremptory challenges to the defense serves actual fairness by reducing opportunities for prosecutors to use peremptory challenges in a discriminatory manner. Finally, this Comment takes the novel approach of considering how the \"progressive prosecution \" movement may justify movement toward equalization in the future, by shifting the community's perception of fairness and by increasing actual fairness in the exercise of peremptory challenges.

Most United States courts require the jury to elect their own foreperson, a role that has amplified influence on the jury's verdict. In practice, the election process is done quickly and without discussion. As a result, the foreperson is demographically biased toward older men of high socioeconomic status. This paper uses psychological literature to argue that the current selection system produces suboptimal forepersons. Instead, it proposes a system of random selection, including an opt-out procedure for those who do not feel capable of holding the position.

Are the highest sample realizations selected from a larger presample more or less informative than the same amount of random data? Developing multivariate accuracy for interval dominance ordered preferences, we show that sample selection always benefits (or always harms) a decision maker if the reverse hazard rate of the data distribution is log-supermodular (or log-submodular), as in location experiments with normal noise. We find nonpathological conditions under which the information contained in the winning bids of a symmetric auction decreases in the number of bidders. Exploiting extreme value theory, we quantify the limit amount of information revealed when the presample size (number of bidders) goes to infinity. In a model of equilibrium persuasion with costly information, we derive implications for the optimal design of selected experiments when selection is made by an examinee, a biased researcher, or contending sides with the peremptory challenge right to eliminate a number of jurors.

The American Bar Association (ABA) has long been interested in ensuring that jury trial rights, both state and federal, are fully protected and are administered in a manner that respects not only the rights of litigants to fair jury decisions but also the rights of citizens to participate in their democracy by serving as jurors. [...]the ABA established a Commission on the American Jury, composed of judges and lawyers experienced in the jury trial arena, that it tasked with adopting best practices for jury trials and, more generally, with issues related to jury management. [...]as the Commentary explains, the Supreme Court recently overrode those state law provisions in Ramos v. Louisiana, holding that the federal Constitution's Sixth Amendment jury trial guarantee requires unanimity in criminal trials whether in federal court or state court. (The Commission likes to think that its longstanding Principle 4 finally convinced the Supreme Court to adopt this suggested best practice as a federal constitutional right.) But the Commentary does not stop at reporting this important recent development in the law. [...]the Washington Supreme Court has made it easier to challenge the use of a peremptory by holding that a prima facie case of discrimination has been made if a party strikes the last member of a racially cognizable group.

This paper uses data from felony jury trials in North Carolina to show that the race and gender composition of the randomly selected jury pool has a significant effect on the probability of conviction, attorneys adjust peremptory-challenge strategies in accordance, and state peremptory challenges have a positive impact on the conviction rate when the defendant is a black male. Jury pools with higher proportions of white men are more likely to convict black male defendants relative to white male defendants. Jury pools with a higher proportion of black men are more likely to acquit all defendants, especially black men. Attorneys use peremptory challenges strategically in accordance with these results, which are robust to a wide set of controls, including county and judge fixed effects. Each state peremptory challenge is correlated with a 2.4–2.9-percentage-point increase in the conviction rate when the defendant is black.

When adopted by Washington courts in 2018, General Rule 37 marked a significant advance in the fight against racial discrimination. Modifying the third step of Batson v. Kentucky, GR 37 requires that peremptory challenges must be denied if an \"objective observer\" could view race or ethnicity as a factor in the strike. Applying the objective observer standard to contexts beyond jury selection--such as evaluation of jury verdicts, seizures of persons, and prosecutorial misconduct--has led to major statewide victories toward establishing a more equitable justice system. However, courts have not granted all requests to extend the objective observer standard to other contexts. Most notably, Division III of the Washington Court of Appeals recently rejected a request to apply the objective observer standard in construing the privilege against self-incrimination in custodial police interrogations. Its decision can be attributed to the fact that prior successful applications of the objective observer standard relied upon state law; in contrast, state courts apply Fifth Amendment jurisprudence in the custodial interrogation context. This is because, in outdated precedents, the Supreme Court of Washington interpreted article I, section 9 of the Washington State Constitution--which provides for the privilege against self-incrimination-as being only as protective as the Fifth Amendment. This Comment advances two arguments: (1) article I, section 9 ought to be interpreted as being more protective than the Fifth Amendment, and (2) the objective observer standard should be applied to the custody analysis governing when law enforcement must provide an advisal as required under Miranda

In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the federal system maintain an unequal allocation of peremptory challenges in any capacity. This inconsistency strikes a chord fundamental to the fairness of our justice system, especially in light of the Supreme Court’s failure to eliminate the discriminatory exercise of the peremptory challenge in Batson. This Comment argues that, at this time, the federal system and remaining states should not move toward equalizing the number of peremptory challenges afforded to the defense and prosecution because allocating a greater number of peremptory challenges to the defense best serves theoretical fairness in the justice system, including maintaining the community’s perception the justice system’s fairness. Additionally, allocating a greater number of peremptory challenges to the defense serves actual fairness by reducing opportunities for prosecutors to use peremptory challenges in a discriminatory manner. Finally, this Comment takes the novel approach of considering how the “progressive prosecution” movement may justify movement toward equalization in the future, by shifting the community’s perception of fairness and by increasing actual fairness in the exercise of peremptory challenges.

Peremptory strikes, and criticism of the permissive constitutional framework regulating them, have dominated the scholarship on race and the jury for the past several decades. But we have overlooked another important way in which the American jury reflects and reproduces racial hierarchies: massive racial disparities also pervade the use of challenges for cause. This Article examines challenges for cause and race in nearly 400 trials and, based on original archival research, presents a revisionist account of the Supreme Court's three most recent Batson cases. It establishes that challenges for cause, no less than peremptory strikes, are an important—and unrecognized—vehicle of racial exclusion in criminal adjudication. Challenges for cause are racially skewed, in part, because the Supreme Court has insulated the challenge-for-cause process from meaningful review. Scholars frequently write that jury selection was \"constitutionalized\" in the 1970s and 1980s, but this doctrinal account is incomplete. In the interstices of the Court's fair-cross-section, equal protection, and due process jurisprudence, there is a \"missing\" law of challenges for cause. By overlooking challenges for cause, scholars have failed to notice the important ways in which jury selection remains free from constitutional regulation. Challenges for cause as they exist today—effectively standardless, insulated from meaningful review, and racially skewed—do more harm than good. They hinder, more than help, the jury in its central roles: (1) protecting the individual against governmental overreach; (2) allowing the community a democratic voice in articulating public values; (3) finding facts; (4) bolstering the perceived legitimacy and fairness of criminal verdicts; and (5) educating jurors as citizens. We need to rethink who is qualified to serve as a juror and how we select them.