Big Changes Coming for Jury Selection?

Regardless of what the U.S. Supreme Court said in Batson v. Kentucky, everyone involved in litigation knows race plays an outsized role in jury selection.  Studies have shown that during criminal trials, prosecutors strike black jurors at a higher rate than whites, and in civil trials defense attorneys often do the same.

When a Batson challenge occurs, attorneys have been able to rest comfortably knowing most judges will accept even the flimsiest race-neutral reasons. 

But that might change soon.  On November 2, the Supreme Court will hear arguments in a case that could upend the way peremptory challenges are used and how lawyers must justify whom they choose to dismiss. 

The case revolves around the 1987 murder trial of a black man in Georgia.  Consistent with studies, the prosecutors used their peremptory challenges to strike black jurors and defense attorneys used theirs on whites.  The result was an all-white jury that convicted the defendant and sentenced him to death.

In 2006, the convicted man’s appellate lawyers obtained prosecutors’ jury selection notes under Georgia’s Open Records Act, and these notes contained information indicating the role of race in their decision-making process.  Prosecutors wrote “B” next to all the black jurors’ names and made a list of the black jurors they could accept versus those they felt they had to strike. 

There’s no telling how the Court will decide this case, but there are still lessons to be learned here.  It’s entirely possible some judges may be emboldened by the fact the Court is hearing this case at all and start demanding more substantial race-neutral reasons for striking jurors.  Here are a few suggestions for how to strengthen your jury selection process, no matter how the Court decides: 

• Look beyond race.  Striking jurors based on race is often the lazy way out– whether it’s done by plaintiff attorneys or the defense.  We believe personal experiences and attitudes are the most important factors to consider when evaluating potential jurors.  Instead of race, focus on truly race-neutral factors, such as education, relevant life experiences and jurors’ opinions about personal responsibility.  Also, there are some cases where minority jurors might be more favorable to the defense – we can help you identify those cases.
• Beef up your reasons.  You shouldn’t feel comfortable offering a judge feeble excuses for striking a juror, such as, “I didn’t like the way he looked at me.”  As mentioned above, there are always better reasons to support your gut feeling than someone’s race, and it’s your job to find them.  If necessary, spend extra time questioning those jurors you think you’re likely to strike.
• Note the race of ALL jurors.  It’s unlikely you’ll ever be compelled to turn over your jury selection notes, but it’s possible you could misplace a page or inadvertently give opposing counsel some other way to catch a peek.  If you’re going to note the race of potential jurors, do it for all jurors, not just the minorities.  We typically use a spreadsheet with a column for race to make sure everyone is recorded.
• Keep control of your notes.  It probably goes without saying, but you should keep close control of all your notes.  Don’t leave them lying around during the lunch break, and don’t throw them away in the courtroom trashcan.  Treat them as the privileged documents they are.
• Appoint a Batson assistant.  If you have an associate or second chair helping you with the case, assign them to listen for and keep track of race-neutral reasons for excusing jurors.  You’ve got enough on your plate, and it’s always possible you’ll miss something important.
• Go on the offensive.  Although it’s less common, we have observed attorneys use Batson to challenge strikes used against white jurors when it appears an attorney is systematically trying to load the jury with minorities.  At the very least, this can show plaintiff attorneys the race issue is a two-way street. 

We’ve helped attorneys select juries for hundreds of cases, and we are particularly adept at preparing for and navigating Batson challenges.  If you’d like our help choosing your next jury, contact Senior Vice President Claire Luna at cluna@juryimpact.net or 714.754.1010.

We’re excited to announce Jury Impact has moved offices.  If you would like to get in touch with us by mail, please send all correspondence to our new location at 19800 MacArthur Blvd., Suite 700, Irvine, CA 92612.