Affirmative Jury Selection: A Proposal to Advance Both the Deliberative Ideal and Jury Diversity
University of Chicago Legal Forum, Vol. 1998, pp. 161-177
10 Pages Posted: 8 Jul 2012
Date Written: 1998
My thesis is that the racial, religious, and ethnic diversity of the jury has a positive and important influence on the jury process. Accordingly, I believe we should select jurors in a way that encourages and enhances such diversity. While I recognize the danger that jurors who are chosen in part because of their racial, religious, or ethnic affiliation may come to believe that they have a duty to represent their particular group in some fashion, I offer a procedure for enhancing juror diversity – affirmative peremptory challenges – that minimizes this danger as much as possible. In short, this article exposes the fallacy of believe that the best way to ensure a race-neutral jury verdict is through a race-neutral selection process. Its thesis is that a racially diverse jury is more likely to render a race-neutral verdict, because it is more likely to suppress racial bias in deliberations and to challenge inferences based on thoughtless racial stereotypes. Consequently, to best ensure race-neutrality in a jury’s verdict, we need to acknowledge our racial differences in selecting that jury and take steps necessary to increase the likelihood of racial diversity among the twelve jurors who will render that verdict.
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