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

Professors Colleen P. Graffy and Harry M. Caldwell's article, "First Twelve in the Box: Implicit Bias Driving the Peremptory Challenge to the Point of Extinction" (SSRN) is published in the Oregon Law Review, 102 Oregon L. Rev. 355 (2024). The article, co-authored with adjunct professor 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 Batson v. Kentucky safeguards are not working as intended and have not resolved the problem of jury bias. 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 simplified approach to jury selection.