First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction
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Date
2024-05-20
Authors
Graffy, Colleen P.
Caldwell, Harry M.
Sood, Gautam K.
Journal Title
Journal ISSN
Volume Title
Publisher
University of Oregon School of Law
Abstract
Peremptory challenges in jury selection are being used in a biased and discriminatory manner. The Batson v. Kentucky safeguards are not working as intended and have not resolved the problem of jury bias. States now need to decide: will they follow Arizona’s bold lead in 2022 and abolish peremptory challenges, or will they follow Washington and try to improve on Batson? This Article presents a compelling argument for abolishing peremptory strikes in jury selections. The authors trace the historical development of peremptory challenges, highlighting their evolution from a mechanism to ensure impartiality to their current use in shaping a biased jury. After examining Washington’s “neutral observer” standard and Arizona’s complete elimination of peremptory challenges, the authors advocate for a shift to the English model—where “the first twelve in the box” become jurors. The Article includes a helpful chart showing the direction in which key states are leaning. It raises thought-provoking questions about implicit bias, the limitations of current methods, and the advantages of a simplified approach to jury selection.
Description
50 pages
Keywords
Juries, Jury selection, Implicit bias, Legal trials
Citation
102 Or. L. Rev. 355