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Juries, jury decision making, Scientific Jury Selection, SJS, Batson v. Kentucky, Peremptory challenges


Constitutional Law | Litigation


Jury trials have always been a source of anxiety for litigators. Despite years of preparation, the outcome of a case can turn on the whimsical biases of a group of people who may or may not understand the legal arguments involved. In recent years, attorneys have taken steps to reduce this uncertainty by hiring social scientists who study jury decision making. One of the most popular services which these consultants offer is assistance in the jury selection process. The use of sociological and psychological methods in identifying and excluding unfavorable jurors from service, known as Scientific Jury Selection ("SJS"), has been growing for decades. As a private litigation aid, SJS has remained unregulated and unsupervised. The Supreme Court's recent cases on equal protection and peremptory challenges, including Batson v. Kentucky, however, suggest that SJS may face increased scrutiny by the courts. These cases hold that a litigant may not use the race of the venire persons as a justification for peremptory challenges. Since SJS has consistently relied on observable characteristics such as race, litigants risk crossing the constitutional limits by hiring an SJS consultant. Even if the SJS consultant uses permissible characteristics, the process itself may raise the scrutiny of a court. This paper discusses the possibility that the new scrutiny applied to peremptory challenges in general endangers the continued use of SJS.

Part I discusses SJS and how its methods rely on classifications such as race. Part II reviews that history of constitutional challenges to jury selection procedures, and Part Ill relates this history to SJS. Part IV describes several arguments that might exempt SJS from this new scrutiny. Part V details the possibility that classifications other than race might be attacked by future courts, thereby further undermining the basis for SJS. Part VI concludes that while SJS may remain a useful tool, litigators would be wise to weigh its benefits against its possible liabilities before hiring an SJS consultant.

Publication Citation

Published in: Pacific Law Journal, vol. 24, no. 3 (1993).