Constitutional limits

The Supreme Court has held that peremptory challenges exercised solely on the basis of the potential juror’s race, ethnicity, or gender are unconstitutional. This principle applies in both civil and criminal cases and to all litigants. So far, the Court has not extended this principle beyond the three categories of race, ethnicity, and gender. To read more about this line of cases, click here.

There is a significant question, however, whether the Supreme Court’s test for unconstitutionally-exercised peremptories is very effective in eliminating such discriminatory challenges. The three-part test is as follows:

• The party contesting the exercise of the peremptory must make a prima facie showing that it was exercised on one of the three prohibited bases—usually this showing is made by pointing out that all or most of the venire members of a racial, ethnic, or gender group were peremptorily challenged by the opposing party;
• If that showing has been made, the party exercising the peremptory must offer a basis for striking the prospective juror that does not implicate one of the three prohibited bases; and
• The trial court must determine whether the party contesting the peremptory has shown purposeful discrimination.

As to the second part of the test, there are innumerable non-prohibited bases that a clever lawyer can assert for exercising any particular challenge, especially since the Court has held that the basis need not be rational, but only not impermissibly discriminatory. And as to the third part of the test, it is a difficult burden for the contesting party to prove that the subjective reason the opponent exercised the peremptory challenge was discriminatory. Thus, most contests of the constitutionality of peremptory challenges fail. In 2005, however, the Court seemingly made it easier to prevail on a claim that peremptories were exercised on an impermissible basis (see Miller-El v. Dretke below.)

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Case law and further reading

The most important Supreme Court cases establishing the right not to have peremptory challenges exercised based on race, ethnicity, and gender, are the following:

1965 Swain v. Alabama, 380 U.S. 202, held that racial discrimination in exercising peremptory challenges by a prosecutor violated the Equal Protection Clause, but set a very difficult standard for a defendant to prove such discrimination: showing that the prosecutor exercised such discriminatory challenges in every possible case, so that no blacks ever served on juries.

1986 Batson v. Kentucky, 476 U.S. 79, changed the standard from that in Swain to the three-part test explained earlier in this Web page.

1990 Holland v. Illinois, 493 U.S. 474, held that the fair cross section requirement applies only to the jury pool, not to a jury itself.

1991 Powers v. Ohio, 499 U.S. 400, expanded the non-discrimination principle to venirepersons who are not of the defendant’s race.

1991 Hernandez v. New York, 500 U.S. 352, expanded the non-discrimination principle to ethnicity.

1991 Edmonson v. Leesville Concrete Co., 500 U.S. 614, expanded the non-discrimination principle to civil cases.

1992 Georgia v. McCollum, 505 U.S. 42, expanded the non-discrimination principle to prohibit criminal defendants from exercising discriminatory peremptory challenges.

1994 J.E.B. v. Alabama ex rel T.B. 511 U.S. 127, expanded the non-discrimination principle to gender.

1995 Purkett v. Elem 514 U.S. 765, held that an asserted rationale for a peremptory challenge under the second part of the Batson test need not be rational in order for the court to have to pass to the third part of the test, but only need assert some non-prohibited rationale.

2005 Miller-El v. Dretke, 125 S. Ct. 2317, held that the burden of showing a purported reason for exercising a challenge to be pretextual can be met by showing that venirepersons of other races were not challenged even though they answered questions the same as the venirepersons who were challenged.

For further reading:

Lonnie T. Brown, Jr., Racial Discrimination in Jury Selection: Professional Misconduct, Not Legitimate Advocacy, 22 Rev. Litig. 209 (2003).

John Terrence A. Rosenthal, Batson Revisited in America’s “New Era” of Multiracial Persons, 33 Seton Hall L. Rev. 67 (2002).

Leonard L. Cavise, The Batson Doctrine: The Supreme Court’s Utter Failure to Meet the Challenge of Discrimination in Jury Selection, 1999 Wis. L. Rev. 501.

Kenneth J. Melilli, Batson in Practice: What We Have Learned about Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447 (1996).

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Abolish peremptories?

Many legal commentators (but not many litigators) have advocated abolishing peremptory challenges. Their arguments boil down to these:

• Peremptories are a tool used by lawyers to attempt to create a biased jury, not an impartial one.
• These efforts by lawyers cause public cynicism about the fairness of the jury system.
• Peremptories are used in discriminatory fashion based on unacceptable stereotypes of race, ethnicity, gender, and so forth.
• They waste time by causing extended voir dire.
• They increase the cost of litigation.
• They induce wealthier litigants to hire jury consultants.
• They cause judges not to consider challenges for cause as seriously as they should.
• Peremptories have been abolished in most other common law jurisdictions, including Great Britain, with no demonstrated detriment to those justice systems.

Supporters of peremptory challenges counter with the following arguments:

• Peremptories have a very long history, dating back to ancient Rome, on through early British history, and thence to colonial America, and they have continued in American practice to the present day—peremptories are a traditional, time-tested part of the system.
• All potential jurors are biased in some way by their life experiences, whether they know it or not, and peremptories give parties the chance to eliminate potential jurors who they believe may have the most unfavorable bias toward that party’s position in the case. Thus, peremptories actually result in more impartial, rational juries, and are an essential part of the adversarial system.
• Having some opportunity to shape the jury enhances the parties’ confidence in the verdict.
• Because voir dire would be necessary anyway to elicit information needed to support for-cause challenges, peremptories do not add significantly to the length or expense of trials.
• They act as a safety net for fairness as to challenges for cause that the judge wrongly denies.
   

The arguments to abolish peremptories have not made much headway in this country. No legislature or court in the United States has eliminated peremptory challenges.

Further reading on the debate about abolishing peremptories

Glen G. Reid, Limitations on Peremptory Challenges: How Far Will They Extend? 51 Fed. Law. 18 (2004).

People v. Brown, 743 N.Y.S.2d 374 (N.Y. 2002) (Kaye, J., concurring).

Wamget v. State, 67 S.W.3d 851 (2001) (Meyers, J., concurring).

Vivien T. Montz & Craig Lee Montz, The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law, 54 U. Miami L. Rev. 451 (2000).

William F. Fahey, Peremptory Challenges: A Crucial Tool for Trial Lawyers, 12 Crim. Just. 24 (1997)

Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997).

Carol A. Chase & Colleen P. Graffy, A Challenge for Cause to Peremptory Challenges in Criminal Proceedings, 19 Loy. L.A. Int’l. & Comp. L. Rev. 507 (1997).

Jean Montoya, The Future of Post-Batson Peremptory Challenges: Voir Dire By Questionnaire and the 'Blind Peremptory', 29 U. Mich. J. L. Reform 981 (1996).

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Further reading on trial consultants

Rachel Hartje, 41 Cal. W. L. Rev. 479 (2005), Comments A Jury Of Your Peers?: How Jury Consulting May Actually Help Trail Lawyers Resolve Constitutional Limitations Imposed On The Selection Of Juries.

Walter F. Becker, Jr., How to Use a Jury Consultant: A Guide for Trial Attorneys, 50 La. Bar J. 426 (2003).

Stephanie Leonard Yarbrough, The Jury Consultant: Friend or Foe of Justice, 54 S.M.U. L. Rev. 1885 (2001).

Jennifer C. Ball, The Jury May Be Seated: Strategies for Conducting Low-Cost Jury Research, 58 Bench and Bar of Minn. 27 (2001).

Barbara Kacir, Using Jury Research to Understand, Structure, and Present Your Case, 1 Sedona Conf. J. 19 (2000).

Maureen E. Lane, Twelve Carefully Selected Not So Angry Men: Are Jury Consultants Destroying the American Legal System? 32 Suffolk U. L. Rev. 463 (1999).
 

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