Race and Jury Selection: The Pernicious Effects of Backstrikes

Abstract

A “backstrike” is a peremptory challenge used to strike a prospective juror after the juror has been accepted onto the jury panel but before the panel has been sworn. Thus, backstrikes permit an attorney to tentatively accept a juror by declining to exercise a peremptory challenge, but then revisit that decision after additional potential jurors are questioned. The data we analyze for this article provide the first systematic evidence on the role played by backstrikes. Our results show that use of backstrikes is common in Caddo Parrish, Louisiana, occurring in 40 percent of the 332 cases we studied. Moreover, controlling for other characteristics, prosecutors had overall between three and five times the odds of using a backstrike on a black prospective juror as on a non-black prospective juror. Depending on the type of case and the race of the defendant, the odds of prosecutorial backstrikes against black prospective jurors could be as high as almost nine times that of non-black ones. Prosecutors were also more likely than defense attorneys to exercise backstrikes. This analysis reveals the nefarious implications of backstrikes for race-neutral jury selection.

Keywords: jury selection, race and the law, empirical legal studies, voir dire, jury challenges, criminal law