Every day in the United States the following scenario is repeated countless times. A lawyer challenges a potential juror. The opposing party objects, arguing that the juror was challenged on the basis of the juror's race or gender. The judge then asks the deceptively simple question, "Why? Why did you challenge that juror?" The lawyer responds, in good faith and as truthfully as she can, with a race- or gender-neutral reason. The vast majority of the time the judge believes the lawyer - after all, she will appear credible, since she believes she is telling the truth - and the peremptory challenge is upheld. But what if a lawyer is wrong? What if her awareness of her mental processes is imperfect? What if she does not know, or even cannot know, that, in fact, but for the juror's race or gender, she would not have exercised the challenge? This article examines the findings from recent psychological research to conclude that the lawyer often will be wrong, will be unaware of her mental processes, and would not have exercised the challenge but for the juror's race or gender. As a result (and not because of lying lawyers), the Batson peremptory challenge framework is woefully ill-suited to address the problem of race and gender discrimination injury selection. Current reform proposals are hit or miss, because they do not directly address this source of injustice. Although abolishing the peremptory challenge would be optimal, in the alternative this article recommends several steps that lawyers and judges should take to reduce the impact of unconscious bias on jury selection.
Antony Page, Batson's Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 262 (2005)