Criminal
Jul. 25, 2002
Court Makes Strides in Bias Reduction for Jury Selection
Forum Column - By Jad Terrell Davis - Peremptory challenges: should they stay or should they go? Typically, those calling for the death of peremptory challenges are lower-court judges and academics. They reason that peremptories allow unconstitutional discrimination to pervade the jury selection process. They believe that peremptory challenges allow litigators to mask unconstitutional stereotypes by excusing jurors who cannot be excused for cause.
By Jad Terrell Davis
Peremptory challenges: should they stay or should they go? Typically, those calling for the death of peremptory challenges are lower-court judges and academics. They reason that peremptories allow unconstitutional discrimination to pervade the jury selection process. They believe that peremptory challenges allow litigators to mask unconstitutional stereotypes by excusing jurors who cannot be excused for cause.
Academics and judges argue that, during the time of gradual jury integration, litigators wielded peremptories specifically to preserve the homogeneity of pre-integration years. Furthermore, they analogize the use of peremptories as a tool for furthering racial discrimination to the use by Southern states of Jim Crow statutes to continue discrimination.
Perhaps the most troubling aspect for these critics is the fact that peremptories give litigators the freedom to excuse a juror for an unarticulated reason. Therefore, critics accuse peremptories of being rooted in the Jim Crow tactics of discrimination and argue that peremptories should go.
Oddly, litigators and the U.S. Supreme Court have been among the supporters of peremptory challenges. Swain v. State of Alabama, 380 U.S. 202 (1965). Most litigators staunchly argue that peremptories are necessary to ensure an impartial jury because peremptories allow them to remove jurors who they believe are harmful to their client's case.
The nature of trial work requires litigators to think on their feet and respond to constantly changing circumstances. Such dynamics, especially the judicially rushed jury selection process, force litigators to use fluid trial tactics. Consequently, many litigators believe peremptories are a necessary tool to allow trial tactics to remain fluid and ensure an impartial jury.
In contrast to many lower courts, the Supreme Court has been a loyal friend of peremptory challenges. In fact, peremptory challenges make strange bedfellows: Justices Ruth Bader Ginsburg, Antonin Scalia, Clarence Thomas and Chief Justice William H. Rehnquist all reason that peremptories are deeply rooted in American jurisprudence.
Justice Thurgood Marshall believed that, in order to get rid of unconstitutional discrimination in voir dire, peremptories had to go. Batson v. Kentucky, 476 U.S. 79 (1986) (Marshall, J., concurring). Yet his rationale has failed to achieve a majority opinion.
Supporters of peremptories argue that peremptories date back to the Roman concept of a jury. On the other hand, critics of peremptories argue that they merely date back to English common law and highlight the differences in our modern concept of the jury. See Morris Hoffman, "Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective," 64 U. Chi. L. Rev. 809 (1997). Consequently, the history of peremptory challenges is muddled at best.
Peremptory challenges are a part of our common law. Nevertheless, the argument that they should stay merely because they are deeply rooted in our common law makes no sense if they allow unconstitutional discrimination into voir dire.
However, should something be thrown away just because it is broken? The Supreme Court has had numerous opportunities to throw peremptories out of American jurisprudence, but the court consistently has reaffirmed their importance while realizing they may allow unconstitutional discrimination into the jury selection process.
Consequently, in Swain, the court began to develop a judicial process designed to prevent litigators from exercising their peremptories for unconstitutional reasons, such as race. Then, in 1986, the court rendered Batson, which, unlike Swain, offered a workable process of ridding unconstitutional discrimination from the jury selection process.
Batson designed a three-step process that allows peremptories to remain a functional procedure while attempting to weed out unconstitutional discrimination. Basically, Batson and its lineage allow an aggrieved party to move for a Batson hearing. At the hearing, the aggrieved party must make a prima facie showing that the opposing party's peremptory challenge was based on unconstitutional discrimination. Then, the opposing party must rebut the moving party's prima facie showing by giving a race-neutral explanation for the peremptory challenge.
The final step resides with the trial judge, who must determine whether the moving party has sufficiently established purposeful discrimination. Although Batson hearings are rare and fallible, they nevertheless serve as an important deterrent to litigators who would use peremptories based on unconstitutional discrimination.
Critics of Batson fervently argue that the process has lost its effectiveness because of recent decisions, specifically Purkett v. Elm, 514 U.S. 765 (1995), that dilute any deterrence that the Batson process had in filtering out unconstitutional discrimination. Some argue that Purkett's modification of the neutral explanation step in the Batson process renders the entire process impotent. Nevertheless, the Supreme Court consistently has stood up for peremptories.
Rarely does a legal process involve the emotion that a Batson hearing does. The court has stumbled during its journey of ridding unconstitutional discrimination from the jury selection process, but in Batson and its lineage, the court genuinely has made efforts to develop a legal process that attempts to rid unconstitutional discrimination from the jury selection process.
Like speed-limit laws, the Batson process is imperfect. Yet it reduces the amount of unconstitutional discrimination by forcing attorneys to closely examine their motivations before either exercising their peremptory challenges or moving for a Batson hearing. The Batson process probably filters unconstitutional discrimination in a prophylactic manner. It is a practical legal process to rid unconstitutional discrimination from the jury selection process.
Thus, for now, peremptories should stay.
Jad Terrell Davis is an associate at Dwyer Daly Brotzen & Bruno in Los Angeles.
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