Professors Colleen Graffy and Harry Caldwell, "First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction" -- Oregon Law Review (forthcoming)

Professors Colleen Graffy and Harry Caldwell's article, "First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction," (SSRN) will be published in the Oregon Law Review.  The article, co-authored with Gautam Sood, presents a compelling argument for abolishing peremptory strikes in jury selections.

Abstract of "First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction"

Peremptory challenges in jury selection are being used in a biased and discriminatory manner. The safeguards that Batson v. Kentucky put in place and that the court thought would resolve the problem of jury bias are not working. States now need to decide: Will they follow Arizona’s bold lead in 2022 and abolish peremptory challenges, or will they follow Washington and try to improve on Batson? This article presents a compelling argument for abolishing peremptory strikes in jury selections. The authors trace the historical development of peremptory challenges, highlighting their evolution from a mechanism to ensure impartiality to their current use in shaping a biased jury. After examining Washington's "neutral observer" standard and Arizona's complete elimination of peremptory challenges, the authors advocate for a shift to the English model—where "the first twelve in the box" become jurors. The article includes a helpful chart showing the direction in which key states are leaning. It raises thought-provoking questions about implicit bias, the limitations of current methods, and the advantages of a more simplified approach to jury selection.