ORCID (Links to author’s additional scholarship at ORCID.org)
The Anglo-American jury emerged at a time when legal and religious conceptions of justice were entwined. Today, however, though the American public remains comparatively religious, the country’s legal system draws a distinction between legal and religious modes of determining culpability and passing judgment. This Article examines the doctrine that governs the place of religious belief and practice in U.S. jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the Batson antidiscrimination doctrine has given these beliefs and practices an ambiguous status. On the one hand, judges aim to protect prospective religious jurors from discrimination. On the other, they seek to reinforce the primacy of a secular legal perspective on justice—even if it conflicts with a prospective juror’s religious convictions and the broader imperative to build inclusive juries.
The open question is how legal actors—both judges and lawyers—should navigate the uncertain position of religion in voir dire to build juries. This Article draws on original empirical research with judges and lawyers to show that the treatment of religiosity in today’s legal system is strikingly inconsistent, guided by biases and misunderstandings of the particular features of various religious traditions. To address this arbitrary treatment of religion, this Article outlines a new approach to navigating religious convictions in jury selection proceedings. Special attention is paid to preventing both the exclusion and the empanelment of jurors with specific religious commitments to gain a strategic advantage. This Article concludes by making the case that insofar as the legitimacy of the U.S. jury system hinges on the inclusive involvement of a diverse—and diversely religious—public, it must find a way to reconcile religious convictions with lay participation.
North Carolina Law Review
religion, juries, discrimination, race, exclusion, 14th Amendment, antidiscrimination law, state courts, federal courts, voir dire, criminal law, criminal trials, trial strategy, prosecutors, defense attorneys, legal profession, empirical legal studies, legal anthropology
Anna Offit, Religious Convictions, 101 N.C. L. Rev. 101 (2023)