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The Character of Jury Exclusion

By Anna Offit. Full Text.

Encounters with the legal system are unevenly distributed throughout the American population, with Black and poor citizens targeted as disparate subjects of surveillance, arrest, and criminal conviction. At the same time, these encounters, as well as a stated belief in the unfairness of the legal system, are commonly viewed as legitimate grounds for excusal from jury service. This follows from an understanding of juror bias that assumes that people with negative experiences with legal actors—police and prosecutors, for example—will be less likely to trust and more likely to discount the contributions of those actors within the context of the jury trial. In practice, however, conclusory judgment of jurors’ presumed partiality in these cases does not reduce bias but instead reproduces it. Dismissing jurors with previous contact with—and negative experiences with—the legal system diminishes the diversity of our juries and contributes to the entrenchment of structural bias skewed along racial and socio- economic lines.

This Article elucidates this problem and outlines reform. It proposes the application of an evidentiary objection to the jury selection context, drawing on the principles of Federal Rule of Evidence 404(a)’s character propensity prohibition. By introducing a character propensity trial objection to voir dire, lawyers would gain a tool—one that complements but goes beyond the Batson challenge—to prevent the imputing of unfounded yet disqualifying character traits to otherwise eligible prospective jurors. In making the case for this reform, the Article demonstrates how targeting judicial discretion, rather than juror bias, can curtail the use of seemingly innocuous juror challenges—and with them, a source of perhaps unintended but no less pernicious exclusion from the jury system.