An Experimental Attempt to Mitigate the Illegal Practice of Using Race as a Deterministic Variable in Prosecutorial Peremptory Challenges

Abstract

Before a person becomes a juror, they are a venire person who must clear voir dire, the process by which attorneys pare the original pool of potential jurors down to the standard twelve. There is much research that exists supporting the posit that White jurors are harsher toward minority defendants than they are to White defendants (Mitchell, Haw, Pfeifer & Meissner, 2005). Furthermore, group polarization is a common occurrence that has been studied since James Stoner’s paper entitled “Risky and cautious shifts in group decisions: The influence of widely held values” (1968), suggesting that a group (jury) will have more bias as an aggregate than the individual (jurors) will themselves exhibit. Thus, heterogeneity of race in a jury would likely mitigate the potential for racial bias to be a consideration in jury decisions. In fact, in Batson v. Kentucky 476 U.S. 79 (1986), the Supreme Court ruled that race must not be a factor when attorneys consider whether a venire person will or will not eventually become a juror during voir dire. However, recent cross-disciplinary research conducted by Sommers and Norton (2007) has applied experimental social psychology methods to explore this important legal issue. These experiments indicate that a more homogenous jury may still be the outcome of voir dire, regardless of the Batson decision. The paper that follows is a summary of the theoretical basis for an ongoing study.