Scientific Jury Selection - Suggested Reforms

Suggested Reforms

In light of the criticisms leveled against scientific jury selection — that it lets lawyers stack juries and distorts the effect of money — several reforms have been proposed. One common reform proposal is the elimination of peremptory challenges. Supreme Court precedent already forbids use of peremptories (peremptory challenges) to exclude jurors based solely on their race or sex.1 Proponents argue that doing away with peremptories altogether will eliminate the perceived and real injustice of permitting lawyers to eliminate jurors dispositionally unfavorable to them without a challenge for cause argument in open court. Opponents counter that attorneys cannot always ferret out actionable evidence of juror bias, particularly in the context of a limited voir dire.

Other proposals include:

• lower the number of peremptories to force attorneys to use them only on the most clearly biased jurors and severely curtail their ability to "shape" the jury with peremptory challenges.
• ban jury consulting through legislative action, though it may be impossible to fairly draw a line that excludes SJS but doesn't exclude advice from other attorneys in the same firm, for example.
• limit useful information by severely curtailing verbal questioning and written questionnaires of prospective jurors. This may have the perverse effect of encouraging many erroneous Batson challenges based solely on race or gender instead of more sophisticated metrics of bias.
• prohibit investigation of the jury pool or release the list of prospective jurors on the eve of jury selection to make investigation of prospective jurors impossible.
• force disclosure of consultant use by making surveys of prospective jurors or the community discoverable by (legally accessible to) the opposing party. If consultants' research is discoverable, each party could use and benefit from their research.

Despite serious discussion among lawyers, scholars, legislators, and others about various reform proposals, none have been implemented and no consensus exists about which remedy, if any, would be the most appropriate and effective.