01 Jan 2016
TL;DR: The question in Foster v. Chatman is whether the state habeas court erred when it held that the prosecution's use of peremptory strikes was not a violation of the Batson test as discussed by the authors.
Abstract: Peremptory challenges have existed since the early days of the common law. Many believe that peremptory challenges help prosecutors ensure fair and impartial juries. Prosecutors often, however, use peremptory strikes for discriminatory purposes. The Supreme Court introduced a test in Batson v. Kentucky to evaluate whether peremptory strikes used on potential jurors were based on racial discrimination. Implementing the ambiguous Batson test has proven extremely difficult. Social scientists have found that prosecutors still commonly use race as a factor in selecting juries, and black jurors remain underrepresented relative to their proportion of the population in many jurisdictions, which suggests the Batson test has failed to effectuate its purpose. The question presented in Foster v. Chatman is whether the state habeas court erred when it held that the prosecution’s use of peremptory strikes was not a violation of the Batson test. According
TL;DR: A new measure of strategic complexity based on level-k thinking is introduced and this measure is used to compare challenge procedures often used in practice and overturn some commonly held beliefs about which jury selection procedures are strategically simple.
Abstract: A peremptory challenge procedure allows the parties to a jury trial to dismiss some prospective jurors without justification. Complex challenge procedures offer an unfair advantage to parties who are better able to strategize. I introduce a new measure of strategic complexity based on “level-k” thinking and use this measure to compare challenge procedures often used in practice. In applying this measure, I overturn some commonly held beliefs about which jury selection procedures are “strategically simple.”