Quantifying disparate questioning of Black and White jurors in capital jury selection

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 30 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.”