Race and Jury Selection: The Pernicious Effects of Backstrikes

34 Pages Posted: 16 Oct 2018

Date Written: 2016


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

Suggested Citation

Seidman Diamond, Shari and Kaiser, Joshua, Race and Jury Selection: The Pernicious Effects of Backstrikes (2016). Howard Law Journal, Vol. 59, No. 3, 705-738. Available at SSRN: https://ssrn.com/abstract=3248561

Shari Seidman Diamond

Northwestern University, School of Law & American Bar Foundation ( email )

375 E. Chicago Ave
Chicago, IL 60611
United States
312-503-2040 (Phone)

Joshua Kaiser (Contact Author)

Dartmouth College ( email )

Department of Sociology
6104 Blunt Hall, Room 305
Hanover, NH 03755
United States
603-646-3045 (Phone)

HOME PAGE: http://joshuakaiser.net

American Bar Foundation ( email )

750 N. Lake Shore Drive
Chicago, IL 60611
United States

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