Jury Selection: Go Beyond the Stereotypes

by Art Raedeke

The California Assembly recently passed legislation prohibiting lawyers from striking a potential juror based on sexual orientation. This bill follows on the heals of a state appeals court ruling that found sexual orientation to be a “cognizable class” which cannot be the basis for exclusion from a jury. These actions add sexual orientation to the list of protected classes (including sex, race and ethnicity) previously established in Batson v. Kentucky, 476 U.S. 79 (1986) and People v. Wheeler, 22 Cal.3d. 258 (1978). Expansion of these protected classes may seem to further restrict trial attorneys’ options in jury selection. In practice, however, these actions should cause trial counsel little concern, since it is generally ineffective to engage in the behavior they prohibit. Using race, sex, ethnicity and sexual orientation as the basis for exercising peremptory challenges is to rely on highly unpredictive stereotypes. Jury research conducted by Versus has consistently demonstrated that far better predictors of juror behavior are the attitudes, values, beliefs and life experiences that relate to case issues and which affect how jurors decide the outcome. While the establishment of protected classes of potential jurors is based on the premise that members of these groups have a shared perspective stemming from common experiences, it is certainly not the case that all members of these groups will have similar reactions to the facts and issues in a given lawsuit.

Conventional wisdom has been that certain demographic traits are associated with either a plaintiff or defense predisposition. For example, minorities are often thought to be plaintiff-oriented in lawsuits claiming wrongful termination or employment discrimination. It may, in fact, be true that minorities are more likely to side with the plaintiff in this type of litigation. But if that is true, it is most likely because of attitudes and experiences related to the plaintiff’s allegations, not because of being minority, per se. It is those attitudes and shared experiences that must be uncovered through effective voir dire. It is those attitudes and shared experiences that should serve as the basis for a peremptory challenge.

Conversely, effective voir dire can prevent unwise use of peremptory challenges based on inaccurate stereotypes. In a recent employment case, ignoring the stereotypes proved to be an effective tactic. One prospective juror was a forty year old African American woman who was employed as a social worker by a county agency. On a written questionnaire, she indicated that a friend “had or felt they had received an unfair evaluation.” Based on this information alone, this woman fit the classic plaintiff juror profile and would have been a likely strike. When probed in oral follow-up, however, she expressed a strong sense of personal responsibility and other attitudes favorable to the defense. As a member of the jury, she turned out to be one of the staunchest advocates for the defendant.

In another discrimination case, an African American woman was struck because, based on her own experiences, she exhibited a predisposition to believe the plaintiff’s claims. In these two instances, what mattered was not the race of the perspective jurors, but their attitudes and experiences related to the claims in the suits.

There is also a strategic need to go beyond “protected” traits in deciding the use of peremptory challenges since opposing counsel will sometimes try to alter the dynamics of jury selection by objecting to your strikes as being discriminatory. By raising this issue, your opponent hopes to prevent further challenges of other jurors in the same class. When a strike is challenged as being discriminatory, it becomes necessary for the proponent to provide a non-discriminatory basis for the strike. Without adequate voir dire, it is nearly impossible to tie the strike to the real factors that make the potential juror undesirable. On the other hand, by having elicited from the prospective juror case-specific attitudes and experiences, it is much more feasible to convince the judge that it was not membership in the protected class that prompted the challenge. Moreover, since jurors may pay attention to who gets struck, uncovering biases lets them know that there are rational, well-founded reasons for your jury selection decisions.

Each cognizable class of prospective jurors includes so much diversity that mere membership in the class is not a reliable predictor of verdicts. As a result, the establishment of new protected classes should not hamper jury selection decisions. Instead, these changes may have a positive impact by highlighting the need for and encouraging the practice of thorough and effective voir dire. These changes also increase the need to resist efforts to further restrict attorney-conducted voir dire which, ironically, would encourage reliance on stereotypes and biases.