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August 29, 2023

"Quantifying disparate questioning of Black and White jurors in capital jury selection"

The title of this post is the title of this article recently published in the Journal of Empirical Legal Studies and authored by Anna Effenberger, John Blume and Martin Wells. Here is its abstract:

This article presents findings from a quantitative study of jury selection using computational natural language processing methods.  We analyzed the voir dire in a set of South Carolina capital trials cases used in previous studies to see if there was evidence of disparate questioning of potential jurors by the prosecution, defense counsel of the trial judge.  More specifically, we examined the descriptiveness and complexity of questioning.  Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.

The natural language processing software used in this study could provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination.  It could also potentially be used at trial since the analysis can be conducted almost instantaneously.  Using it at either stage of the proceedings could be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

August 29, 2023 at 11:17 AM | Permalink


Doing away with peremptory strikes would, as Justice Marshall noted, do away with the possibility of this sort of discrimination.

That solution would, however, plainly place more power in the hands of the judges making decisions on cause challenges. Allowing the defense, but not the prosecution, to retain the ability to exercise peremptory strikes would obviate the power shift and is defensible on the theory that the state represents everyone/is not an advocate in the way the defense is.

I wonder if any prosecutor's offices have unilaterally decided to opt out of peremptory strikes

Posted by: John Mills | Aug 29, 2023 4:59:38 PM

Allowing only the defense to have peremptory strikes would dramatically alter the balance of power. There are jurors who give answers that definitely suggest the possibility of bias but say the right words to avoid a for cause challenge. I have always thought that the solution would be to limit peremptory strikes to quasi-cause scenarios where the party could identify a reason for the belief that the jury might be biased even if the court concluded that the court did not believe that the jurors were actually biased -- something like an appearance of bias standard.

The terminology used in the abstract shows part of the problem here. Analytics of language should be neutral. At least theoretically, an analysis of the language could cut either way -- showing a lack of disparate questions (which would help those defending the use of the peremptory) or showing disparate questioning (which would help those challenging the strike). But the abstract assumes that such analysis would benefit those challenging the strike. But one would only expect that to be true at the broadest level of analysis (because attorneys are unlikely to repeat the same exact question every time). The narrower question is whether there are some race-based disparities (i.e. are their distinct similarities within racial groups and distinct differences between racial groups) and whether these disparities are semantically meaningful (i.e. does the choice of words naturally lead a particular racial group to disclose different information which could the be used to justify strikes of a particular race).

Posted by: tmm | Aug 29, 2023 5:25:40 PM

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