Regina M. McCrea

Published May 2022

For years trial judges and attorneys have grappled with unconscious or implicit bias in the jury pool.  Research shows that people tend to view themselves as more objective, even-handed, and insightful than they actually are.  Although individuals willingly recognize attribution bias in others, they lack such awareness in themselves.[1]

Given that inherent prejudice influences impressions drawn from evidence and witness testimony, it will also permeate jurors’ deliberations and final decision-making.  Despite a general acknowledgment of this problem and direct attempts to address it (through admonishments against jumping to conclusions premised on nothing more than gut feelings, generalities, stereotypes, etc.), the public continues to view the legal system with distrust and increasingly questions the fundamental fairness of jury trials.

Against this backdrop, several states have taken steps to combat eroding confidence in the courts and to restore belief in American jurisprudence.  Such developments range in scope from creating special task forces for further research to transforming traditional concepts of jury selection.  This article explores the unprecedented change one state has made, beginning with a review of the history, and ending with a brief discussion of practical implications.

Traditional approach to jury trials

The common law jury system has been universally revered.  In 1765, the First Congress of the American Colonies resolved and declared, “That trial by jury is the inherent and invaluable right of every British subject in these colonies.”[2]

Less than 10 years later, the First Continental Congress again affirmed, “That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.”[3]  The right is ensconced in the 6th and 7th Amendments of the U.S. Constitution and can be found in Art. 1, § 7 of Idaho’s Constitution wherein the number of jurors is specifically defined―juries in civil cases will consist of 12 members unless the parties agree to a lesser number.

In 1971, the Idaho Legislature adopted the Uniform Jury Selection and Service Act, which the National Conference of Commissioners on Uniform State Laws approved.[4]  This Act vests the Idaho Supreme Court with the power to promulgate rules pertaining to jury service.[5]

Consequently, the procedural rules encompass most aspects of jury administration, such as using written questionnaires, permitting voir dire examinations, and establishing a method and manner for striking prospective jurors.[6]  Attorneys have two tools to remove individuals harboring preconceived beliefs about the case or their clients: “for cause” and “peremptory” challenges.

With peremptory challenges, no reason need be given; however, “for cause” strikes must fit one of the following grounds: (1) not meeting the qualifications specified by Idaho Code,[7] (2) having a special relationship with a party, such as familial, business, or debtor/creditor, (3) possessing a financial interest in the litigation, (4) holding a pre-formed opinion about the case, or (5) adhering to a belief that is hostile to or biased against a party.[8]

As one would expect, most challenges relate to perceived hostility and/or bias, and whether removal is justified depends entirely on the information elicited.  The Idaho Supreme Court has interpreted Rule 47 to mean the trial court bears primary responsibility for selecting competent and impartial jurors.  For this reason, judges may freely question panel members to gain further insight into their views and obtain clarification on their ability to keep an open mind.[9]  Unfortunately, in practice, after a judge rehabilitates a prospective juror and evokes a commitment that an identified bias can be set aside through the course of trial for purposes of fair play and equality, a litigant generally will exercise a peremptory challenge to have the individual discharged.[10]

For civil trials in state court, each party has the opportunity to use four peremptory challenges; for criminal proceedings, the number depends on the severity of the charges― misdemeanors (4), felonies (6), and felonies involving death or life sentences (10).

Over the course of the COVID-19 pandemic, the Idaho Supreme Court modified these provisions and, in addition to requiring that courts employ the struck jury system, reduced the number of peremptory strikes as follows: civil cases (2), misdemeanors (2), felonies (3).  The applicable number permitted in criminal cases entailing an offense punishable by death (10) did not change.[11]  The Idaho Supreme Court subsequently removed these limits as of August 2, 2021.[12]

Beyond the numerical limit, attorneys also cannot engage in discriminatory practices during jury selection and exclude a juror peremptorily based on race or gender.

Discriminatory use of peremptories

In Batson v. Kentucky, 476 U.S. 79, 99 (1986) and in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 145—46 (1994), the United States Supreme Court confronted the reality of peremptory challenges having been used for discriminatory purposes.  Over the years the Court has repeatedly affirmed its commitment to jury selection procedures that do not offend equal protection principles and are “free from state sponsored group stereotypes rooted in, and reflective of, historical prejudice.”[13]  Where prejudice motivates discriminatory use of peremptory challenges, it affects the entire proceedings, puts the fairness of the outcome and the jury’s neutrality at risk, and inevitably leads to a “perpetuation of invidious group stereotypes” as well as a “loss of confidence in [the] judicial system that state-sanctioned discrimination in the courtroom engenders.”[14]  When an inference of discrimination is shown, the opposing party must identify a neutral reason for the challenge―intuitive judgment will not suffice.[15]

In writing a separate concurring opinion in Batson, Justice Thurgood Marshall expressed his view that discrimination would continue to infect the jury selection process and could only be stopped “by eliminating peremptory challenges entirely.”[16]  He espoused such an approach for two main reasons.  First, a discriminatory inference will be difficult to establish except in the most flagrant of cases.[17]  Second, trial courts face an unenviable task of assessing motives and evaluating “easily generated explanations” from attorneys who may not even recognize their own “conscious or unconscious racism.”[18]  Historic importance of the practice aside, Justice Marshall argued the best course forward would be to remove the inherent potential for discrimination to distort the jury process completely and no longer permit discretionary strikes in criminal cases.

Ending peremptory challenges in jury selection

Now, one state has chosen to pursue the path suggested by Justice Marshall.  On January 1, 2022, Arizona entirely abolished peremptory exclusions.[19]  Two sitting judges of the state’s court of appeals initiated the change, advocating it would definitively stop intentional and unintentional bias in jury selection and eliminate court involvement with reviewing Batson claims.[20]  The authors emphasized that the United Kingdom stopped the usage in 1988 and that Canada made the same modification to its trial procedures in 2019.  Byproducts of disallowing peremptory challenges include streamlining proceedings and reducing the overall number of individuals summoned for jury duty, who “make the effort to appear [and] are merely fodder for arbitrary hunch-based strikes.”[21]

 The authors argued that constitutional mandates lose their integrity when the initial panel represents a fair cross-section of the community, but the final panel reflects “favorable imbalance.”  Moreover, “anyone who has competently tried a case in the last century knows that the practical use of peremptories is to achieve some (perhaps illusory) partiality in the final jury.”[22]

The petition cited multiple studies identifying discriminatory trends in the use of peremptory challenges and data exhibiting “an empirical imbalance between the demographics of the overall population and jurors seated under our current system.”[23]  These statistics generate distrust and foster a legitimate perception that court rules authorize attorneys to engage in de facto discrimination.[24]  For these reasons and in an effort to restore public confidence and respect in the justice system, the authors concluded by strenuously recommending a “death blow” to all peremptory strikes.[25]

During the comment period, opponents raised many of the same concerns.  To start, practitioners believed the time needed for voir dire would be significantly impacted and that, in general, trial judges are not receptive to permitting lengthy examinations (perhaps attributable to managing the trial schedule, undervaluing the importance of jury selection, or wanting to protect the venire from perceived improper questioning or having to reveal private, embarrassing, traumatic and impactful experiences).  Attorneys emphasized the time needed to discover and explore quality information on which they can intelligently exercise a for cause challenge.  Jurors often feel reluctance when asked to divulge personal facts about themselves in a public setting.  It takes time for them to become comfortable expressing their views. 

Further, many comments highlighted increased difficulty with finding open-minded people.  The public has heard about tort reform and frivolous lawsuits for years, and such attitudes become deeply ingrained.  Few people recognize their implicit biases, and practitioners face a daunting task revealing their existence.  General inquiries simply cannot sufficiently detect “jurors with views preventing or substantially impairing their duties in accordance with their instructions and oath.”[26]

Moreover, when a prospective juror verbally acknowledges bias (a rarity in itself), judges typically inquire whether the juror will pledge to be “fair and impartial.”  Thirty years ago, the US Supreme Court recognized jurors will “in all truth and candor respond affirmatively, personally confident that [their] dogmatic views are fair and impartial, while leaving the specific concern unprobed.”[27]

Thus, the strongest point of contention for keeping peremptories is that parties cannot cure an erroneous denial of a challenge for cause.  The ability to use peremptory strikes has long been heralded as a procedural safeguard for ensuring an impartial jury.  When that right is unavailable, parties will likely appeal, arguing reversible error premised on a failed attempt to remove a juror for cause.  Consequently, judicial resources may not be saved at all; instead of reviewing Batson arguments, courts of appeals would be tasked with analyzing juror biases.[28]

Key takeaways for practitioners

Striving for juries that mirror a community’s demographics and varying ethnicities increases the legitimacy of trial verdicts.  Such “cross-sections” epitomize the principal purpose behind one’s right to a jury of one’s peers.  Having made this unprecedented change, Arizona has become a case study for the rest of the country.[29]

If shown to be successful, more jurisdictions may follow Arizona’s lead.  Regardless, trial judges should refrain from securing hollow commitments from prospective jurors, and practitioners should work more vigorously to establish valid for cause challenges.  Observations concerning prospective jury members’ demeanor should be clearly articulated on the record so that information can be considered along with their verbal responses to voir dire questioning.  Facial expressions, body language, tone of voice, and even attire may be relevant indicators as to whether an individual disfavors a particular litigant or criminal defendant.  The record will not reflect these elements without attention being drawn to them, and they may make the difference in whether a valid challenge for cause is sustained.

Having cases decided by a jury of one’s peers continues to be a fundamental component of the court system, but that does not mean the related procedural processes should remain static.  The legal industry can and should continue to explore reform and implement creative solutions as needed while retaining the many positive virtues jury service brings to civic engagement and democracy.

BIO: Regina McCrea has actively practiced law for almost 20 years and is presently a partner with the firm Owens, McCrea & Linscott, in Coeur d’Alene, where she handles cases involving personal injury, wrongful death, medical and legal malpractice, insurance, and general civil disputes.

Endnotes

[1] See, e.g., Armor, D.A, The Illusion of Objectivity: A Bias in the Perception of Freedom from Bias, 59(9-B) Dissertation Abstracts International: Section B: The Sciences and Engineering 5163 (1999).

[2] Department of Alfa-Informatica of the University of Groningen, “The Resolutions of the Stamp Act Congress October 19, 1765” American History from Revolution to Reconstruction (1994—2012), http://www.let.rug.nl/usa/

documents/1751-1775/the-resolutions-of-the-stamp-act-congress-october-19-1765.php.

[3] Id. See also “Declaration and Resolves of the First Continental Congress October 1774,” http://www.let.rug.nl/usa/

documents/1751-1775/declaration-and-resolves-of-the-first-continental-congress-october-1774.php.

[4] See I.C. § 2-201 et seq.

[5] I.C. § 2-220.

[6] I.R.C.P. 47; I.C.R. 23.1, 24.

[7] These qualifications include being a resident citizen who is at least 18 years of age and who understands English.  See I.C. § 2-209.

[8] I.R.C.P. 47(h)(2).

[9] Quincy v. Joint Sch. Dist. No. 41, Benewah Co., 102 Idaho 764, 768, 640 P.2d 304, 308 (1981).

[10] See, e.g., Stoddard v. Nelson, 99 Idaho 293, 296, 581 P.2d 339, 342 (1978).

[11] Idaho Supreme Court Order Re: Jury Trials, dated 7/24/20.

[12] Idaho Supreme Court Order Re: Emergency Order regarding Court Services, dated June 24, 2021.

[13] J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994).

[14] Id. at 140–41.

[15] Batson v. Kentucky, 476 U.S. 79, 97 (1986).

[16] Id. at 103.

[17] Justice Marshall believed discrimination would still occur, but with restraint “to an acceptable level.”  Id. at 105.

[18] Id. at 106.

[19] See generally https://www.azcourts.gov/Rules-Forum/aft/1208. Two states have gone a different route.  In 2018, the Washington Supreme Court added a new rule concerning jury selection, which expands the Batson prohibition and has been termed Batson plus.  See GR 37.  In 2020, the California legislature passed a bill which disallows particular reasons for striking jurors and outlines an objective test for measuring discriminatory motives.  The law applies to criminal cases beginning in 2022, but will not affect civil jury trials until 2026.  See, e.g., Cal. Code of Civ. Proc. § 231.7.  See also State v. Andujar, 254 A.3d 606, 631 (N.J. 2021) (calling for the Director of the Administrative Office of the Courts to arrange a conference to explore discrimination in jury selection, examine authoritative sources and practices, and make recommendations for improvement, including, but not limited to, changes to the procedural rules and, further, inviting “the legal community as a whole to take part in a probing conversation about additional steps needed to root out discrimination in the selection of juries”).

[20] Peter B. Swann and Paul J. McMurdie, “R-21-0020 Petition to Amend Rules 18.4 and 18.5 of Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure” Arizona Judicial Branch (Jan. 11, 2021), https://

www.azcourts.gov/Rules-Forum/aft/1208.

[21] Id. at 4.

[22] Id. at 8.

[23] Id. at 12.

[24] Id. at 13—14.

[25] Id. at 15.

[26] Morgan v. Illinois, 504 U.S. 719, 734-35 (1992).

[27] Id. at 735.

[28] For additional ideas to modernize the sometimes “inefficient, unreliable, unpredictable, and impractical” jury trial, see Christopher Robertson & Michael Shammas, The Jury Trial Reinvented, No. 21-05 Boston University School of Law Public Law & Legal Theory Paper (2021), https://scholarship.law.bu.edu/faculty_scholarship/

1086.

[29] But see Arizona House Bill 2413, https://apps.azleg.gov/BillStatus/BillOverview/76919 (proposal to reinstate peremptory challenges).