Religious Convictions

42 Pages Posted: 2 Mar 2022 Last revised: 15 Mar 2023

See all articles by Anna Offit

Anna Offit

Southern Methodist University - Dedman School of Law

Date Written: 2023

Abstract

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 conviction in American jury selection proceedings. It argues that the discretion afforded to judges with respect to applying the anti-discriminatory Batson doctrine has given religious 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 deeply-held religious beliefs and the broader imperative to build inclusive juries.

The open question is how legal actors—both judges and lawyers—should navigate the ambiguous position of religion in voir dire to build juries. This Article draws on original empirical research with judges and lawyers to show that in today’s legal system the treatment of religious conviction is strikingly inconsistent, guided by personal bias, and affected by 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 the prevention of exclusion, as well as the practice of empaneling jurors with certain religious commitments to gain a strategic advantage. The Article concludes by making the case that insofar as the legitimacy of the American 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.

Keywords: 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

Suggested Citation

Offit, Anna, Religious Convictions (2023). 101 N.C. L. Rev. 271 (2023), SMU Dedman School of Law Legal Studies Research Paper No. 535, Available at SSRN: https://ssrn.com/abstract=4048271

Anna Offit (Contact Author)

Southern Methodist University - Dedman School of Law ( email )

P.O. Box 750116
Dallas, TX 75275
United States

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