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The Propriety of Peremptory Challenges for Perceived Personality Traits

34 Pages Posted: 3 May 2013  

Erik James Girvan

University of Oregon School of Law

Robert J. Cramer

Sam Houston State University

Caroline Titcomb

University of Alabama

Tess M.S. Neal

Arizona State University

Stanley Brodsky

University of Alabama

Date Written: May 2, 2013

Abstract

There is substantial controversy over the extent to which social science should be used in jury selection. Underlying the debate are two competing interests in the make-up of a jury: a privilege to strike prospective jurors on subjective grounds, which supports scientific jury selection, and a collective interest of citizens to be free from exclusion from jury service, which does not. While the incommensurability of the interests precludes resolution of the controversy in the abstract, specific solutions are possible. Using the example of selection of jurors based upon their respective levels of extraversion, we describe how the competing interests frequently do not apply to concrete cases. In the subsequent analysis, we show that, rhetoric notwithstanding, a normative preference for adhering to tradition and institutional inertia are the primary instrumental considerations for determining whether peremptory challenges based upon personality traits like extraversion ought to be allowed. Consistent with this analysis, we conclude that the practice of striking jurors based upon estimates of such personality traits is appropriate.

Keywords: law and psychology, jury selection, expert testimony, scientific jury selection, jury service, empirical legal studies, jury decision-making

JEL Classification: K14, K40, K41

Suggested Citation

Girvan, Erik James and Cramer, Robert J. and Titcomb, Caroline and Neal, Tess M.S. and Brodsky, Stanley, The Propriety of Peremptory Challenges for Perceived Personality Traits (May 2, 2013). Law & Psychology Review, Vol. 37, 47, 2013. Available at SSRN: https://ssrn.com/abstract=2259970

Erik James Girvan (Contact Author)

University of Oregon School of Law ( email )

1515 Agate Street
Eugene, OR Oregon 97403
United States
541 346-8934 (Phone)

HOME PAGE: http://law.uoregon.edu/faculty/girvan/

Robert J. Cramer

Sam Houston State University ( email )

1803 Ave I
Huntsville, TX 77341
United States

Caroline Titcomb

University of Alabama

101 Paul W. Bryant Dr.
Box 870382
Tuscaloosa, AL 35487
United States

Tess M.S. Neal

Arizona State University ( email )

4701 West Thunderbird Rd.
Mailcode 3051
Glendale, AZ 85306
United States
602-543-5680 (Phone)

HOME PAGE: http://psych-law.lab.asu.edu/

Stanley Brodsky

University of Alabama ( email )

101 Paul W. Bryant Dr.
Box 870382
Tuscaloosa, AL 35487
United States

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