A bedrock principle of modern democracies is the right to a fair trial. In Britain, we’ve put our cases in front of a jury of our peers for nearly a thousand years – possibly since the arrival of William the Conqueror in 1066 and certainly since the publication of the Magna Carta in 1215.
Following Colombus across the Atlantic, the right to an “impartial jury of the state” would be guaranteed to Americans, in those exact words, on the US Bill of Rights in 1791.
Almost as old as the jury system itself is the peremptory challenge, a judicial quirk that was removed from UK jury selection 35 years ago, owing to it representing a “derogation from the principles of random selection” and being detrimental to “fairness within the jury system.” So why do peremptory challenges represent the Achilles heel of the American Justice System?
Fair jury trials inevitably rely on fair jury selection. In the US, a juror pool is randomly drawn from the electoral register, before being put through a process known as voir dire, where potential jurors undergo questioning designed to root out any experiences or connections that will cause them to take a biased view of the case. If an attorney feels there is substantial evidence that a juror will be biased, they may present this evidence to the judge, who will then decide whether to remove them from proceedings. So far, so good.
The problem arises from the simultaneous right of attorneys to remove a certain number of jurors through peremptory challenges, where they can have a juror struck without any justification or consultation with the judge.
The problem arises from the simultaneous right of attorneys to remove a certain number of jurors through peremptory challenges, where they can have a juror struck without any justification or consultation with the judge
Inevitably, attorneys use peremptory challenges to try and stack juries in their favour. An entire industry has even sprung up around this premise. ‘Jury consultants’ can be brought in by either side to undertake extensive background research on potential jurors, and use questionnaires, models and algorithms to determine, and subsequently realise through these peremptory strikes, their vision of the ‘ideal jury’. The unspoken assumption priced into the entire system is that the to-and-fro of attempted jury stacking from both sides will result in a balanced final outcome. Of course, this is rarely the case, and the wealthier side is inexorably provided a major advantage.
A useful case study is the infamous trial of OJ Simpson, at the time considered the ‘trial of the century’. Jury selection for the OJ case was a laughably industrial process that lasted more than two months. Jurors were made to fill out a 79 page, 294 question survey designed by the attorneys/jury consultants, full of seemingly inconsequential questions that all fed data into the legal teams’ models.
Jury consultant for the defence, the very expensive Jo-Ellen Dimitrius, determined that her ideal juror lacked a college education, as she reasoned that these people would be more sceptical of the DNA evidence placing OJ at the crime scene. From her research, Dimitrius also determined that in general, African-American women had an unfavourable view of the prosecutor Marcia Clark, and also considered OJ ‘attractive’.
The composition of the final jury was a huge success from the point of view of the defence, as only 2/12 jurors were college educated, and 9/12 were African-Americans, 8 of which were women. The trial would go on to last eight months, with mountains of evidence and testimonies to consider. Hence, when it came time for the jury to deliver their verdict, legal analysts predicted it would take anywhere between two days and two months to reach a verdict. They returned a ‘not guilty’ verdict in less than four hours.
The OJ trial is a good exemplar of how far the US has strayed from the principles of random selection upon which the jury system was built. But it does not demonstrate what is undoubtedly the most notorious aspect of peremptory challenge usage, and that is their discrimination against black jurors.
Technically, since 1986, it has been illegal to make peremptory challenges based on race (or sex), but given that attorneys aren’t require to provide any reasoning, this legislation is largely unenforceable, and only tends to pick up the most blatant examples of racist peremptory challenge use, for example in Miller-El v Dretke. Despite the 1986 legislation, virtually all the research indicates that racial discrimination remains a major issue in jury selection across the country.
A 2019 model suggests that black Americans are 6.67 times more likely to be challenged than their white counterparts. Perhaps unsurprisingly, the issue seems to be worse in the South. For example, between 2005 and 2009 on death penalty cases in Houston County, Alabama, prosecutors excluded 80% of African-Americans who qualified for jury service. Similar studies found figures of 79% in Dallas County and 83% across the state line in Chattahoochee, Georgia. Look at almost any other major statistical study. The same patterns will be evident.
Ex-Supreme Court Justice Thurgood Marshall is on record arguing that ending racial discrimination in jury selection “can be accomplished only be eliminating peremptory challenges entirely.” Arizona made history back in 2022 when they became the first state to do just that.
“[ending racial discrimination in jury selection] can be accomplished only be eliminating peremptory challenges entirely”Ex-Supreme Court Justice, Thurgood Marshall
In opposition to the change, Jacqueline Parker a member of the Arizona House of Representatives argued that peremptory challenges should be reinstated because it’s “how we’ve done things for ages.” This common belief, that peremptory challenges are somehow legitimised by the fact that they’ve been around for a long time, is deeply flawed. ‘For ages’, our ancestors believed the world was flat, tried to combat plague with public flagellation, and even used dial up internet. Times change, and so must our practices. Peremptory strikes are one of those historical hangovers, like the Post Office’s power to run their own prosecutions, that it’s now time to step back, evaluate, and expunge.
By stacking the jury with prejudice and negating the idea of random selection, peremptory challenges simultaneously increase the chance that guilty offenders are released onto the streets and the chance that innocent people are sent to jail. Or, for those unfortunate enough to be tried in one of the 27 states still practicing capital punishment, sent to their death.