Barbara O'Brien
Professor of Law Michigan State University
- East Lansing MI
Professor O’Brien’s scholarship applies empirical methodology to legal issues.
Media
Biography
Professor O’Brien’s scholarship applies empirical methodology to legal issues, such as identifying predictors of false convictions and understanding prosecutorial decision-making. Her most recent work examines the persistent role of race in jury selection and in charging and sentencing decisions relating to capital punishment. An ongoing National Science Foundation project with Professor Catherine Grosso applies conversation analysis to assess ways in which race influences voir dire in capital cases.
Professor O’Brien received her Bachelor’s Degree in Economics from Bowdoin College, a J.D. from the University of Colorado, and a Ph.D. in Social Psychology from the University of Michigan.
Areas of Expertise
Accomplishments
MSU Distinguished Partnership Award for Community-Engaged Service
2021
Education
University of Michigan
Ph.D.
University of Colorado
J.D.
Bowdoin College
B.A.
News
RJA hearing expert: Race is a factor in prosecutors’ decision to strike jurors
NC Newsline online
2024-02-28
In poring over thousands of pages of court transcripts and prosecutors’ notes on jury selection in capital cases across North Carolina between 1985 and 2011, Barbara O’Brien developed an opinion on whether a person’s race played a role in prosecutors’ decision to strike them from serving on a jury.
“It is my opinion that race was a statistically significant factor,” O’Brien, a professor at Michigan State University College of Law, said in a Johnston County courtroom Tuesday.
Tracking Wrongs to Make it Right
Giving to MSU online
2022-03-25
“An exoneration is a big deal,” Professor O’Brien said at an MSU College of Law event in 2021, “in the sense that it’s proof that the system has failed in a massive, major way.” One of the most visible stats on the NRE website explains that exonerated defendants spent more than 26,500 years combined in prison for crimes they did not commit.
Event Appearances
Examining Jurors: Using Conversation Analysis to Explore the Influence of Race on Prosecutor Speech in North Carolina Capital Jury Selection
2016 Conference on Empirical Legal Studies Duke Law School
Research Grants
Information Seeking in Jury Selection: How Stereotype Maintenance Processes Explain Stark Racial Disparities in North Carolina Death Penalty Proceedings
National Science Foundation (NSF)
2013-2015
Journal Articles
Judges, Lawyers, and Willing Jurors: A Tale of Two Jury Selections
Chicago-Kent Law Review2024
Race has long had a pernicious role in how juries are assembled in the United States. Racism—intentional, implicit, and structural—has produced disparities in how jury venires are selected, whom the court excuses for cause, and how lawyers exercise their peremptory strikes. We are, however, at a moment of reform in the United States. We see courts, legislatures, and citizens looking for opportunities to make our criminal legal system fairer. One aspect of the system receiving attention is jury selection, specifically race discrimination in the selection process. Efforts to counter discrimination range in scope from creating commissions to study the issue, to implementing rules to address Batson’s shortcomings, to outright abolishing the use of peremptory strikes
A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials
University of Iowa Law Review2023
Among those who laud its mission, it seems that the only people not disappointed in Batson are those who never expected it to work in the first place. Scholars, judges, and practitioners have criticized the decision for its failure to curb the role of racial stereotypes in jury election. Likewise, previous research in North Carolina has suggested both that race continues to play a role in jury selection and that courts are reluctant to enforce Batson rigorously. Recently, however, the North Carolina General Assembly passed legislation aimed at curing this defect by providing trial courts a unique opportunity to consider the role of race in peremptory challenges from a different angle.
Race and Wrongful Convictions in the United States 2022
University of Michigan Public Law Research Paper2022
Black people are 13.6% of the American population but 53% of the 3,200 exonerations listed in the National Registry of Exonerations as of August, 2022. Judging from exonerations, innocent Black Americans are seven times more likely than white Americans to be falsely convicted of serious crimes.
We see this racial disparity, in varying degrees, for all major crime categories except white collar crime. This report examines racial disparities in the three types of crime that produce the largest numbers of exonerations: murder, sexual assault, and drug crimes.
For both murder and sexual assault, there are preliminary investigative issues that increase the number of innocent Black suspects: for murder, the high homicide rate in the Black community; for rape, the difficulty of cross-racial eyewitness identification. For both crimes, misconduct, discrimination and racism amplify these initial racial discrepancies.
Criminal Trials and Reforms Intended to Reduce the Impact of Race: A Review
Annual Review of Law and Social Science2020
This review collects initiatives and legal decisions designed to mitigate discrimination in pretrial decision making, jury selection, jury unanimity, and jury deliberations. It also reviews initiatives to interrupt implicit racial biases. Among these, Washington's new rule for jury selection stands alone in treating racism as the product of both individual actors’ decisions and long-standing legal structures. Washington's rule shows the limits of recent US Supreme Court decisions addressing discrimination in cases with unusual and clearly problematic facts. The court presents these cases as rare remediable aberrations, ignoring the well-documented history of racism in jury selection. The final section juxtaposes limited reforms with the contemporary prison abolitionist movement to illuminate boundaries of incremental reforms. Reforms must reflect cognizance of the extent to which racism exists at multiple levels. Reforms that do not are less likely to make change, because they are either narrow in scope or focused on discrimination by individuals.
Lawyers and jurors: Interrogating voir dire strategies by analyzing conversations
Journal of Empirical Legal Studies2019
This study of individualized jury selection for 792 potential jurors across 12 North Carolina capital cases, selected with purposive case selection, analyzes the conversations that occur during voir dire to examine the process that produces decisions about who serves on juries. Lawyers question prospective jurors in voir dire partly to gather information about prospective jurors’ ability to decide a case without prejudice. Jury selection, however, suffers from what social scientists call demand characteristics. Demand characteristics provide a respondent with clues about the expected response and interfere with effective information gathering. We identified two characteristics that bear on the presence and strength of demand characteristics: the form and tone of the question.
