Abstract

The right to serve on a trial jury dates back to before the founding of the United States, directly influenced by the English common law system. For decades, this right was reserved only for white, land-owning men. Beginning in the 1880s, the Supreme Court addressed efforts to exclude individuals from jury service based on race. However, states continued to restrict Black individuals from serving on juries. To further combat these discriminatory practices, in Batson v. Kentucky, the Supreme Court ruled that prosecutors could not use peremptory strikes based on race. Still, this decision did little to protect defendants, as prosecutors only needed to provide minimal justification for a peremptory strike. While peremptory strikes represent a significant obstacle to racial diversity on juries, prosecutors can also challenge, without limitation, individual jury members for cause and have them dismissed by a judge. This article proposes solutions to address ongoing disparities in criminal jury selection, recognizing that peremptory strikes are not the only challenge—challenges for cause are equally crucial to address. The author proposes the best solution lies with judges, who hold the most influence over the composition of the jury at trial. Judges should carefully assess whether the alleged bias is valid and scrutinize the motivations of a party bringing challenges for cause. Another approach involves granting a party additional peremptory strikes to offset any unequitable distribution in dismissals of jurors for cause. Given the unlikely nature of larger jury reforms, these approaches may provide the best route to accessing change and minimize the impact of bias.

Keywords

JurySelectionBias, PeremptoryStrikesReform, FairTrialDiversity