Argument preview: Race and the make-up of juries

[Draggingtree]

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By Lyle Denniston on Oct 30, 2015 at 6:30 pm

The process of selecting juries to try criminal cases has become, at least in high-profile cases, a science of human profiling. Both sides — prosecutors and defense lawyers — try to make educated guesses about how potential jurors may react if seated, at times using behavioral experts to improve the guessing. The final shaping of the jury depends heavily upon how each side actually weeds out the jurors it doesn’t want.

 

On Monday, the Supreme Court will explore how a court can tell whether the weeding out was intended to unconstitutionally influence the jury’s racial make-up. That can be a major source of controversy when — as in Monday’s case, Foster v. Chatman — a black man is put on trial for the death of a white woman.

 

For much of the twentieth century, lawyers on each side of a criminal trial could exclude potential jurors without ever having to offer a justification — a method known as the “peremptory strike.” Each side had a specific number of such “strikes” to use as it wished, for whatever reason; once a prosecutor or defense lawyer used a “strike” to remove someone from the jury pool, that strike could not be challenged.