CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, June 7, 2019

Gastwirth on Statistical Analysis of Peremptory Challenge Data

Joseph L. Gastwirth (George Washington University - Columbian College of Arts and Sciences) has posted How Formal Statistical Analysis of Peremptory Challenge Data Can Answer Some Questions Raised by the Court in Flowers v. Mississippi. on SSRN. Here is the abstract:
Although the peremptory challenge data for the previous trials of the defendant in Flowers is very convincing, at the recent hearing the Court also inquired about the prosecutor’s pattern of challenges and justifications in the defendant’s sixth trial. Using accepted statistical procedures, both the prosecutor’s pattern of peremptory challenges and the data on removals for cause at the sixth trial statistically significantly reduced the African-American representation on the defendant’s jury. The state’s discussion of the statistics is shown to be flawed, however, properly analyzed the prosecutor’s peremptory challenges of their over-inclusive pool of potential jurors still shows a statistically significant disparity against African-Americans. A logical flaw in some precedential Mississippi cases occurred because they did not consider the effect of the system of calling potential jurors in numerical order. Using this procedure provides the lawyers with information on the next jurors to be called, so it is reasonable for a lawyer not to challenge an individual they otherwise might when the replacements would be less favorable.

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