Quantifying Disparate Questioning of Black and White Jurors in Capital Jury Selection

Abstract

Numerous studies have demonstrated that female and Black jurors are under-represented on juries in criminal cases, especially so when the prosecution seeks the death penalty. The primary, but not exclusive, way in which this happens is that prosecutors remove them from the jury pool through the exercise of peremptory challenges. The practice remains widespread despite the Supreme Court’s decision more than thirty years ago holding that using such challenges in a racially (or gender based) discriminatory manner violates the Equal Protection Clause of the Fourteenth Amendment. In the years since, enforcement by the Supreme Court and state and federal courts has been uneven. However, in several recent cases, in finding that prosecutors struck Black venire persons because of their race, the Supreme Court relied in part on evidence that the prosecution questioned Black and white venire persons differently. The legal term of art for this practice is “disparate questioning.”

This article presents findings from a quantitative study of jury selection using computational natural language processing methods. We analyzed the voir dire in a set of South Carolina capital trials cases used in previous studies to see if there was evidence of disparate questioning of potential jurors by the prosecution, defense counsel of the trial judge. More specifically, we examined the descriptiveness and complexity of questioning. Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.

The natural language processing software used in this study could provide attorneys challenging the use of peremptory challenges on appeal as being based on race or gender discrimination with evidence relevant to the issue of disparate questioning, which is often a pretext for purposeful discrimination. It could also potentially be used at trial since the analysis can be conducted almost instantaneously. Using it at either stage of the proceedings could be a powerful tool in achieving the goal of having more diverse juries in criminal cases, especially where the death penalty is a potential punishment.

Keywords: Jurors, death penalty, Jury Pool, Supreme Court, Equal Protection Clause, Fourteenth Amendment, Disparate Questioning, Discrimination