• Senior Assistant Attorney General, Violent Crimes Assistance Team
    Colorado Attorney General’s Office

Jury selection throughout the United States allows two forms of challenges to ensure a fair trial: challenges for cause (sometimes known as challenges to the favor) and peremptory challenges. However, when peremptory challenges are “used to express stereotypical judgments about race, gender, religion, or national origin, peremptory challenges betray the jury’s democratic origins and undermine its representative function.”1 1 Justice Breyer, among others, has expressed the view that the peremptory challenge system as a whole should be reconsidered because of discrimination in its utilization.2 This article considers the procedures for obtaining a fair and representative jury, specifically the procedures established in Batson v. Kentucky,3 and then discusses proposals to strengthen steps one, two, and/or three of those procedures. State-specific solutions, including the Connecticut Supreme Court’s creation of a “Jury Selection Task Force” to consider “measures intended to promote the selection of diverse jury panels”4 and Washington’s recently-enacted rule regarding implicit and explicit bias are reviewed.5 Finally, the article discusses whether peremptory challenges should be abolished.

Procedures for Obtaining a Fair Jury Pool

Two avenues are available to ensure a fair jury pool in both civil and criminal cases: challenges for cause and peremptory challenges. Challenges for cause generally include lack of necessary qualifications for jury service, implied bias, and actual bias.6 Challenges for implied bias are based upon a relationship between the parties, the witnesses, or the attorneys and the potential juror.7 Implied bias is conclusively presumed as a matter of law regardless of actual partiality.8 Implied bias is usually defined in court rules or statutes.

Actual bias is based upon facts developed during jury selection. Actual bias is a state of mind that prevents a juror from deciding the case impartially and without prejudice to a substantial right of one of the parties: “genuine prejudice that a . . . juror . . . has against some person or relevant subject.”9 The issue for the judge to determine is whether the juror can “try the issue impartially, without prejudice to the substantial rights of the party challenging.”10

A peremptory challenge permits a party to remove a prospective juror without giving a reason (e.g., disqualification, implied bias or actual bias) for the removal.11 During jury selection, each side will challenge potential jurors that the party views as most likely to disagree with their factual and legal theories. Generally, the right is exercised in a party’s sole discretion.12 The genius of the peremptory challenge system is that it should result in a non-predisposed, balanced group of potential jurors.

Peremptory challenges are a deep-seated part of the common law.13 Starting at least in 1305 in England, peremptory challenges were permitted to both sides.14 Provision for peremptory challenges in federal criminal trials date back to 1790.15 However, because peremptory rules are created by statute or court rule, states are free to determine the number of challenges and to define their purpose and the procedure for exercising them or to dispense with them altogether.16 There is no constitutional right to peremptory challenges.17

The Equal Protection Clause of the Fourteenth Amendment to the United States Constitution does prohibit the exercise of peremptory challenges based upon group stereotyping.18 “Equal justice under law requires a criminal trial free of racial discrimination in the jury selection process.”19 Invidious discrimination in the use of peremptory challenges on the basis of race or gender offends the Equal Protection Clause with respect to both the defendant and the juror, harms the community perception of a fair and just jury system, and is simply unrelated to a potential juror’s fitness to be fair and impartial during the trial and deliberations.20

The Supreme Court’s Batson Decision

In Batson v. Kentucky, the Supreme Court created a procedure for determining whether peremptory challenges are based upon discrimination. The three-step procedure is:

  1. The party objecting to the peremptory challenge must make out a prima facie case of an inference of discrimination;21
  2. The party exercising the peremptory challenge must then “come forward with a neutral explanation, that need not rise to the level justifying a challenge for cause, related to the particular case to be tried;22 the party objecting has an opportunity to rebut the explanations of the party exercising the challenge;23
  3. The court determines whether purposeful discrimination has been proven by a preponderance of the evidence by the objecting party.24

A trial judge may consider all relevant factors in determining whether at step 1 there is a prima facie case of an inference of discrimination and whether at step 3 there is purposeful discrimination by the party exercising the challenge. Factors the court may consider include:

  • statistical evidence about the use of peremptory strikes against the race or gender of prospective jurors as compared to the race and gender of other prospective jurors in the case25
  • disparate questioning and investigation of prospective jurors with racial or gender differences
  • comparative analysis of the race, ethnicity, and gender of prospective jurors who were struck and the race and gender of prospective jurors who were not struck in the case26
  • misrepresentations of the record by a party when defending the strikes during the Batson hearing
  • relevant history in past cases of use of peremptory strikes by the challenging party
  • any other relevant circumstances that bear upon the issue of racial or gender discrimination27

The constitution forbids striking even a single prospective juror for a discriminatory purpose.28 As few as one strike against a venire member may constitute a prima facie case.29

The party exercising the peremptory challenge may provide a race- or gender-neutral reason for exercising the peremptory challenge.30 The reason must give a “clear and reasonably specific explanation of his legitimate reasons for exercising the challenge.31 “Proof that the [challenging party’s] explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive.”32

Expansion of Batson

Batson concerned a black defendant and the challenge to a black potential juror in a criminal case.33 The principle was expanded to include challenges where the defendant and the excluded juror were of different races,34 different ethnic groups,35 to private litigants in civil cases,36 and to peremptory challenges by criminal defendants.37 The Court has held that not only did the Equal Protection Clause protect litigants, but it also protected the individual potential juror from being excused because of race or gender.38 Some courts have extended Batson to challenges based on religious affiliation.39 Other courts have extended the principle to sexual orientation.40 Although the issue has never been addressed by the United States Supreme Court, the majority of jurisdictions have interpreted Batson’s requirement that peremptory challenges cannot be based upon race to include challenges against white potential jurors.41

Notwithstanding this expansion of Batson, Justice Breyer has noted “the use of race- and gender-based stereotypes in the jury selection process seems better organized and more systematized than ever before.”42

A Change in Analysis Reversed by Miller-El?

Shortly after the expansion of Batson during the 1991-1994 sessions of the Supreme Court, the question arose as to what type of “race-neutral” explanation was required if the trial court found a prima facie case of an inference of discrimination. Batson itself required that the reason must be “related to the particular case to be tried.43 In Hernandez v. New York,44 the Court addressed an issue of peremptory challenges made against two individuals because they spoke Spanish as well as English.45 The Court held that a policy of striking jurors because they spoke a different language, “without regard to the particular circumstances of the trial or the individual responses of the juror” may be a pretext for discrimination.46  After Batson and Hernandez, the test for an appropriate race-neutral peremptory challenge was that the explanation must be (1) related to the case on trial, and (2) related to the individual responses of the jurors.

Unexpectedly, a per curiam opinion in Purkett v. Elem changed these principles.47 In that case, the prosecution used peremptory challenges against two black men.48 The prosecution gave as “neutral reasons” that one juror had “long hair” that was “curly, unkempt.”49 The juror also had a “mustache and a goatee type beard.”50 The second juror also had a mustache and goatee type beard.51 One of the two jurors had had a shotgun pointed at his face during a robbery.52

The Eighth Circuit reversed the trial court’s finding.53 The appellate court held that where a challenge was based upon factors which are “facially irrelevant to the question of whether that person is qualified to serve as a juror in the particular case, the prosecution must at least articulate some plausible race-neutral reason for believing those factors will somehow affect the person’s ability to perform his or her duties as a juror.”54

On appeal, the Supreme Court held that during the third step of a Batson analysis, implausible or fantastic reasons may be found to be pretexts for discrimination.55 However, the Court held that “what it means by a ‘legitimate reason’ is not a reason that makes sense, but a reason that does not deny equal protection.”56 The Court reasoned because beards and facial hair are not specific to any one race, the peremptory challenges were not discriminatory.57

The dissent in Purkett observed that the Court overruled a portion of Batson.58 The dissent stated:

Today, without argument, the Court replaces the Batson standard with the surprising announcement that any neutral explanation, no matter how “implausible or fantastic,” . . . even if it is “silly or superstitious,” . . . is sufficient to rebut a prima facie case of discrimination. A trial court must accept that neutral explanation unless a separate “step three” inquiry leads to the conclusion that the peremptory challenge was racially motivated. The Court does not attempt to explain why a statement that “the juror had a beard,” or “the juror’s last name began with the letter ‘S'” should satisfy step two, though a statement that “I had a hunch” should not. . . . It is not too much to ask that a prosecutor’s explanation for his strikes be race neutral, reasonably specific, and trial related. Nothing less will serve to rebut the inference of race-based discrimination that arises when the defendant has made out a prima facie case. 59

After its decision in Purkett, the Court changed course again, saving the requirement of rational, non-discriminatory reasons for peremptory challenges in Miller-El v. Cockrell.60 At step three, the persuasiveness of the justification by the party exercising the peremptory challenge is the critical question.61 The persuasiveness of what may be, under Purkett, “implausible or fantastic justifications” are examined to determine whether those justifications are pretextual.62 The credibility of the reason may be measured by the totality of the circumstances including the party’s “demeanor; by how reasonable, or improbable, the explanations are; and by whether the proffered rationale has some basis in accepted trial strategy.”63 By mentioning “trial strategy,” the Court re-inserted the requirement that the reasons be related to the case currently at trial. Applying this reasoning, while facial hair may be a non-discriminatory reason under Purkett, that a potential juror has facial hair would not be an acceptable reason under Miller-El.

Delay in Addressing Batson Challenges

In light of the constitutional issues raised by the use of peremptory challenges, commentators have expressed concern over the time between the jury selection in a particular case and the appellate review using the Batson standards. A Batson objection must be raised in a timely manner.64 Some courts have held that the objection is only timely raised if it is before the remainder of the venire is excused and the jurors sworn.65 Whether a timely objection is made is dependent upon the procedures in the particular jurisdiction concerning jury selection.

However, decisions on even timely-raised Batson objections can take years to resolve. In Miller-El v. Cockrell, the jury selection was in 1986 while the Supreme Court decision was in 2003 – a period of 17 years.66 In Flowers v. Mississippi, the murder was committed in 1996, the Supreme Court decision was in 2019 – a period of 23 years.67 In Foster v. Chapman, which involved a 1986 murder, the Supreme Court’s decision was in 2016 – 30 years later.68 From a plaintiff’s perspective, attempting to retry a case originally tried over 15 years ago can be an insurmountable obstacle.

Issues with Batson Analysis of Peremptory Challenges and Movement Toward Batson Reform

Batson has long been criticized as ineffectual in addressing the discriminatory use of peremptory challenges.69 However, “given all the problems of Batson, it may well be that an adjustment here and there may not be enough.”70 Batson has been seen by many “as so ineffective that alternate approaches to race-neutral jury selection have been proposed, including eliminating peremptory challenges altogether, employing affirmative-action principles into jury selection, imposing specific ethical rules on counsel that afford disciplinary sanctions for purposeful discrimination, and using blind questionnaires and video recording of questioning in voir dire.”71 Some of the many proposed solutions are discussed below.

Connecticut’s “Jury Selection Task Force”

One recent step toward Batson reform is illustrated in State v. Holmes.72 In Holmes, the Connecticut Supreme Court affirmed the conviction of the defendant over his objections to Batson error, finding that the lower courts had correctly applied Connecticut caselaw, which was consistent with federal caselaw. However, the court created a “Jury Selection Task Force” to address issues of disparate impact and implicit bias.73 The court anticipated that the Task Force members, to be appointed by the Chief Justice, would include a “diverse array of stakeholders from the criminal justice and civil litigation communities.” The specific issue in the case was whether at Batson step two, fear or distrust of law enforcement is a race-neutral reason for exercising a peremptory challenge.74 The Connecticut Supreme Court, examining its prior case law, held that in Holmes’ specific case, fear or distrust constituted a race-neutral reason.75 But the Court, looking forward, created the Task Force to make proposals for meaningful changes relating to discriminatory use of peremptory challenges.76 The Court sought responses to four issues: 1) proposed changes in the statute concerning the “juror confirmation form and confidential juror questionnaire; ”77 2) steps to ensure that venires are drawn from a fair cross-section of the community, representative of its diversity;78 3) model jury instructions on implicit bias;79 and 4) proposals for substantive standards to eliminate the purposeful discrimination finding that is now required by Batson.80 The court concluded, “we ‘hope . . . that our decision sends the clear message that this court is unanimous in its commitment to eradicate racial bias from our jury system, and that we will work with all partners in the justice system to see this through.’”81

Modify Batson To Exclude the First Step

In a recent California Supreme Court case, People v. Rhoades, the defendant complained that the prosecution used peremptory challenges to excuse all black potential jurors from the retrial of a death sentence.82 Each potential juror completed a 162-question, 44-page questionnaire.83 The defendant made two Batson motions: the first after the prosecutor struck three black women, and the second after yet another black woman was struck.84 The Court stated the test of a prima facie case was that “the objector must show that it is more likely than not the other party’s peremptory challenges, if unexplained, were based on impermissible group bias.”85 The Court found that under the totality test, the evidence offered by the defendant was not sufficient to “give rise to an inference of discrimination.”86

Justice Liu dissented from the majority holding in Rhoades.87 The Justice criticized the trial and appellate courts for “hypothesizing reasons for the removal of minority jurors.”88 The Justice noted that “it has been more than 30 years” since the California Supreme Court had found Batson error against the use of a peremptory challenge against a black juror.89 The Justice suggested two options to address the discriminatory use of peremptories:90 first, the courts should not use “hypothesized reasons in first-stage Batson analysis;”91 and second, to “essentially eliminate Batson’s first stage.”92 Excluding the first stage would require the party exercising the strike, if an objection is made, to provide “reasonably specific and clear race-neutral explanations for the strike.”93 Eliminating the step will unmask intentional and implicit biases by requiring parties to base their challenges in concrete reasons focused on this potential juror’s service in this specific case.94 Requiring such an explanation “would serve the important goals of promoting transparency, creating a record for appellate review, and ensuring public confidence in our justice system.”95

Strengthen Batson’s Second Step Inquiry

Some courts have required a more stringent inquiry as to the justification for the challenge at the second step. In Ex Parte Bruner, the Alabama Supreme Court followed a “quasi-Batson” approach.96 When a movant meets the first prong of Batson, the challenging party must “articulat[e] a clear, specific, and legitimate reason for the challenge which relates to the particular case to be tried, and which is nondiscriminatory.”97 Similarly, the Florida Supreme Court has emphasized that, under the second prong of its approach to Batson, the prosecution must identify a “clear and reasonably specific” race-neutral explanation that is related to the trial at hand.98

The Washington State Solution, Making Step Three Stronger

Effective in April 2018, the Washington Supreme Court enacted General Rule 37 concerning jury selection in all jury trials in an attempt to eliminate the use of peremptory challenges to exclude potential jurors based on race or ethnicity.99 When the trial court or a party objects to a peremptory challenge by raising the issue of an improper purpose for the exclusion, the Rule provides a procedure for the trial court judge to follow.100 The objector must simply state that the objection is made pursuant to the Rule.101 The challenge must be made before the potential juror is excused.102

Once the objection is made, the party exercising the challenge must state the reasons supporting the challenge.103 The court evaluates the reasons given and determines whether “an objective observer could view race or ethnicity as a factor in the use of the peremptory challenge.”104 The rule defines an “objective observer” as someone who is aware of “implicit, institutional, and unconscious biases” that have resulted in unfair exclusion based upon race or ethnicity.105 If the trial judge finds that race or ethnicity was a factor, the challenge is denied.106 The court need not find purposeful discrimination.107

The trial court is directed to consider the totality of circumstances including:

(i) the number and types of questions posed to the prospective juror, which may include consideration of whether the party exercising the peremptory challenge failed to question the prospective juror about the alleged concern or the types of questions asked about it

(ii) whether the party exercising the peremptory challenge asked significantly more questions or different questions of the potential juror against whom the peremptory challenge was used in contrast to other jurors

(iii) whether other prospective jurors provided similar answers but were not the subject of a peremptory challenge by that party

(iv) whether a reason might be disproportionately associated with a race or ethnicity

(v) whether the party has used peremptory challenges disproportionately against a given race or ethnicity, in the present case or in past cases108

The Washington Supreme Court went further and found certain reasons to be “presumptively invalid.”109 Those reasons include:

(i) having prior contact with law enforcement officers

(ii) expressing a distrust of law enforcement or a belief that law enforcement officers engage in racial profiling

(iii) having a close relationship with people who have been stopped, arrested, or convicted of a crime

(iv) living in a high-crime neighborhood

(v) having a child outside of marriage

(vi) receiving state benefits

(vii) not being a native English speaker110

Finally, the court set forth conduct that attorneys have used to explain peremptory challenges that are suspect.111 The conduct by the potential juror included things such as being inattentive, failing to make eye contact, attitude, demeanor or providing confused answers.112 The rule requires that the party offering such reasons must give notice so the behavior can be “verified and addressed in a timely manner.”113 The rule mandates that a lack of corroboration “shall invalidate the given reason for the peremptory challenge.”114

The Washington Supreme Court’s decision in State v. Jefferson applied the same reasoning as the Rule.115 The court stated, “Our current Batson standard fails to adequately address the pervasive problem of race discrimination injury selection. . . . step three of the Batson inquiry must change” to whether “an objective observer could view race as a factor in the use of the peremptory challenge.”116

Washington’s rule change has influenced other courts. The Oregon Court of Appeals has observed that steps can be taken to ensure that jury selection is free from implicit or explicit discrimination,117 and discussed Washington’s recent rule change.118 The Oregon court noted that “Washington’s experience, and whether a similarly concrete set of rules would improve our handling of peremptory challenges, are questions that may be appropriate for the Council on Court Procedures and the legislature to consider.”119 Other Justices of state courts have argued for consideration of the Washington rule.120

Changing Discriminatory Intent to Discriminatory Impact

One author has suggested that the way to abolish discrimination in peremptory challenges is to change the required finding at step three from one of the challenging party’s intent to the impact of the challenge on the jury’s diversity.121 Batson “has proven toothless at preventing discriminatory jury strikes because judges routinely accept pretextual race-neutral excuses for them.”122 The message, this author argues, is that parties “may continue to create all-white juries using peremptory challenges and excuse them with race-neutral pretexts as long as they don’t do it . . . blatantly.”123 If her recommendation was adopted, the trial court would look at the makeup of the jury in determining whether discrimination was at play. The author argues that the reality is that white jurors presume that minority defendants are guilty based upon racism.124 According to this author, “In short, the all-white juries of the slavery system were a mechanism used by whites to uphold the system of slavery.”125

Return to Pre-Batson Examination of Peremptories?

Curtis Flowers was tried six times for the murder of three white and one black victim.126 The second, third, and sixth trials were reversed because of racial discrimination in the use of peremptory challenges.127 In a 2019 decision, the Supreme Court noted that, in the six trials combined, the prosecution used peremptory challenges to excuse 41 of 42 black prospective jurors.128 The Court found in the sixth trial that the prosecution had struck five of the six black potential jurors, that the prosecution had engaged in “dramatically disparate questioning” based on race, and that at least one potential juror was similarly situated to a white potential juror who was not excused.129 The totality of those circumstances, the Court held, established clear error by the trial court requiring reversal of Flowers’ conviction and sentence.130 The Court applied the traditional Batson analysis in determining that reversal was required.131

In his dissent in Flowers v. Mississippi, Justice Thomas pointed instead to the past.132 Where the majority found overwhelming racial discrimination, the Justice found that the record of the prosecution’s conduct during jury selection provided no evidence of purposeful discrimination.133 The Batson rule “was suspect when it was announced, and I am even less confident of it today.”134 The Justice argued that Flowers did not have standing to assert the excluded juror’s claim and that he has not demonstrated that the jury that convicted and sentenced him was not impartial.135 Therefore, the Justice concluded, the defendant suffered no cognizable injury and no relief should have been granted.136 The historical basis for a peremptory challenge is not the juror’s competence, ability, or fitness but is instead based upon the attorney’s intuitions that a potential juror may be less sympathetic to his case.137

Justice Thomas stated that “the entire line of cases following Batson is a misguided effort to remedy a general societal wrong by using the Constitution to regulate the traditionally discretionary exercise of peremptory challenges.”138 The Justice would return to pre-Batson procedure and “thereby return to litigants one of the most important tools to combat prejudice in their cases.”139 Peremptory challenges are made with limited knowledge of the potential jurors.140 Batson, the Justice stated, “rejects the premise that peremptory strikes can be exercised on the basis of generalizations and demands instead an assessment of individual qualifications.”141 This individual focus is “wholly contrary” to the reasons for peremptory challenges.142

Justice Thomas stated that because of Batson and its progeny, “it is impossible to exercise a peremptory strike that cannot be challenged by the opposing party.”143 The Justice looked back to Strauder v. West Virginia, where the Court found unconstitutional a statute that prohibited blacks from serving on juries.144 He also cited to Swain v. Alabama, where the Court held that individual peremptory challenges could not give rise to a Constitutional challenge.145

Justice Thomas would return to pre-Batson law, freeing peremptory challenges from being attacked based on a single potential juror. By abolishing Batson, he believes, the peremptory challenge would be reinvigorated, which “affords a suitable and necessary method of securing juries which in fact and in the opinion of the parties are fair and impartial.”146

Abolition of Peremptory Challenges?

In Batson, Justice Marshall in his concurrence wrote:

The decision today will not end the racial discrimination that peremptories inject into the jury-selection process. That goal can be accomplished only by eliminating peremptory challenges entirely.147

Justice Marshall noted that the exclusion of jurors based upon race “has become both common and flagrant.”148 The Justice cited statistics from the mid-1970s: 68.9% of black jurors challenged by federal prosecutors in Louisiana; 82% of black jurors challenged in South Carolina by state prosecutors; 86.7% of black jurors challenged by state prosecutors in Dallas County, Texas.149 Justice Breyer, in his concurrence in Miller-El v. Dretke, cited more recent statistics.150 Between 1981 and 1997 prosecutors in Philadelphia struck 51% of black jurors and only 26% of non-black jurors, while defense attorneys struck 26% of black jurors and 54% of non-black jurors.151 In a county in North Carolina, 71% of black jurors were excused by the prosecution and 81% of white jurors were excused by the defense.152

Two states at that time had adopted similar procedures as those required by the Batson holding.153 The Justice pointed out the shortcomings of the procedure: first, the questioned challenge had to be so flagrant that it established a prima facie case; second, trial courts have a difficult task in assessing motives, and the person exercising the challenge may not even be telling the truth about the motive behind the strike.154

The Justice looked at some authors who had suggested that only the prosecutor’s peremptories be eliminated, but that the defendant’s peremptories should be maintained.155 That solution was not acceptable to Justice Breyer, because a fair criminal justice system requires not only a freedom from bias against the defendant, but also a freedom from bias against the prosecution.156 The only way to maintain a balance of fairness and to end discrimination is to ban peremptory challenges by all parties.157

Since Justice Marshall’s concurrence in Batson, others have joined the call to abolish peremptory challenges.158 For example, in Swain v. Alabama, Justice Goldberg in dissent stated:

Were it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former.159

Iowa Supreme Court Justice David Wiggins in his concurrence in part in State v. Veal stated that “the only way to stop the misuse of peremptory challenges it to abolish them.”160 The judge noted that instead of creating a fairer jury the use of peremptory challenges defeated the random draw techniques used to guarantee a representative trial jury.161 “If a person can sit as a juror under the Code and rules, a party should not be able to strike that otherwise qualified juror.”162

Conclusion

Discrimination on the basis of race, ethnicity, and gender continues to be a problem in jury selection of both civil and criminal trials. To overcome that discrimination, suggestions have been made, and some adopted, to strengthen the various steps of Batson. Perhaps the most far-reaching change is the state of Washington’s general court Rule, which applies to all trials, civil and criminal. The state has essentially constitutionalized the Rule by holding that application of Batson in Washington requires the procedure described in the Rule. That procedure eliminates step one of the Batson test, the requirement of a showing of an inference of discrimination. It instead places on the party that is exercising the peremptory challenge the duty of showing that discrimination was not a factor. The Rule also precludes certain justifications and limits other justifications for a peremptory challenge. Another solution, according to Justice Thomas, is to do away with the Batson test altogether and return to pre-Batson procedures. On the other hand, the solution suggested by Justice Marshall in Batson is to eliminate peremptory challenges.

However, there are reasons to retain the peremptory challenge even in the face of persistent discrimination in its use. The use of peremptory challenges does permit a party to de-select those jurors who appear biased toward the opposing party, ultimately resulting in a fairer jury. The peremptory challenge system itself permits the parties to more deeply explore biases of the potential jurors than a system that would permit only challenges for cause. If the trial court judge denies a challenge for cause, a peremptory challenge can be used to excuse a juror that the party believes is biased.

The best solution may well be for courts, by modifying court rules, or legislatures, by amending or enacting statutes, to strengthen the various steps in determining whether there is discrimination in the use of peremptory challenges. The fact that peremptory challenges have been a part of the common law, statutes, and court rules, for over 700 years indicates that they still have a place in ensuring a fair trial for all parties.

Endnotes

  1. Miller-El v. Dretke, 545 U.S. 231, 272 (2005) (Breyer, J., concurring).
  2. Id. at 273.
  3. 476 U.S. 79 (1986).
  4. State v. Holmes, 334 Conn. 202, 221 A.3d 407 (Conn. 2019).
  5. Washington General Rule 37.
  6. See, e.g. California, C.C.P. §§ 225(b), 226; Florida, Fla.R.Civ.P. Rule 1.431(c); Massachusetts R.Civ.P. 47(a); Texas, R.C.P. 504.2(d); Washington, R.C.W.A. §§ 4.4.130, 4.44.170, 4.44.180 (implied bias); 4.44.190 (actual bias).
  7. C.C.P. §225(b).
  8. United States v. Wood, 299 U.S. 123, 133 (1936); Implied Bias, Black’s Law Dictionary (11th ed. 2019), https://1.next.westlaw.com/Link/Document/FullText?findType=Y&pubNum=223765&cite=BLACKS11THB5830&originatingDoc=I014f57ec808511e4b391a0bc737b01f9&refType=DA&originationContext=document&transitionType=DocumentItem&contextData=(sc.Search)#co_pp_sp_223765_bias|n.|||.
  9. Actual Bias,” Black’s Law Dictionary (11th ed. 2019), Id.see also 22 Okla. Stat. Ann. § 659.
  10. 22 Okla. Stat. Ann. § 659 ¶ 2; see also Cal. C.C.P. § 225(b).
  11. The term “peremptory” comes from the Latin word “peremptorius” meaning decisive or final. https://www.etymonline.com/word/peremptory.
  12. Frazier v. United States, 335 U.S. 497, 505 (1948).
  13. Swain v. Alabama, 380 U.S. 202, 212-13 (1965) citing “The Ordinance for Inquests, 33 Edw. 1, Stat. 4 (1305).
  14. Id. at 213.
  15. See An Act for the Punishment of Certain Crimes Against the United States, 1 Stat. at Large 119, Act of Apr. 30, 1790, ch. 9 § 30.
  16. Ross v. Oklahoma, 487 U.S. 81, 89 (1988).
  17. See, e.g. United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (holding “peremptory challenges are not of federal constitutional dimension.”).
  18. Batson v. Kentucky, 476 U.S. 79, 85 (1986) (holding equal protection is violated when a black defendant is put on trial before a jury selected by excluding members of the defendant’s race).
  19. Flowers v. Mississippi, 139 S.Ct. 2228, 2243 (2019).
  20. Strauder v. West Virginia, 100 U.S. 303, 304 (1879) (holding unconstitutional a West Virginia statute that denied “colored citizens the right and privilege of participating in the administration of the law as jurors, because of their color” ) Batson, 476 U.S. at 100, remanding for a hearing on the basis of the prosecution’s peremptory challenges to all black potential jurors.
  21. This step is often stated as “a prima facie case of discrimination,” but Batson itself uses the phrases “an inference of purposeful discrimination,” 476 U.S. at 94; “raise an inference,” Id. at 96; “an inference of discriminatory purpose,” Id. at 97. See also, Flowers, 139 S.Ct. at 2246 (2019); Johnson v. California, 545 U.S. 162, 170, 173 (2005) (“petitioner’s evidence supported an inference of discrimination”); Miller-El v. Cockrell, 537 U.S. 322, 346-47 (2003) (“inference of discrimination”); Hernandez v. New York, 500 U.S. 352, 376, 377 (1991). In Johnson, the Court rejected California’s standard at the first step that it must be shown by a “strong likelihood” and instead held that the first step is satisfied by “producing evidence sufficient to permit the trial judge to draw an inference that discrimination occurred.” 545 U.S. at 170.
  22. Batson, 476 U.S. at 97-98.
  23. Id. at 98.
  24. Id.
  25. See, e.g. Ray-Simmons v. State, 132 A.3d 275, 283-84 (Md. App. 2016) (holding that the prosecution’s exercise of five peremptory challenges, all to remove African-American men, satisfied the preliminary burden of producing a prima face case of race and gender discrimination). Compare United States v. Esparsen, 930 F.2d 1461 (10th Cir. 1991) (“By itself, the number of challenges used against members of a particular race is not sufficient to establish or negate a prima face case.”) with Jones v. West, 555 F.3d 90, 98 (2nd Cir. 2009) (the record should include “the number of peremptory challenges used against the racial group, the number of peremptory challenges used in total, and the percentage of the venire that belongs to that racial group.”).
  26. See, e.g. People v. Hogan, 904 N.E.2d 1144, 1156-57 (Ill. App. 2009) (“An inference of purposeful racial discrimination is raised where the State accepts white jurors having the same characteristics as black venirepersons that were excused for having that characteristic.” The prosecution used the criteria of crime victims.); People v. Bell, 702 N.W.2d 128, 135-36 (Mich. 2005) (peremptory challenge of white males by defendant, the defendant’s explanation that “the number of white males on the panel still exceeds the number of the minorities on that panel” insufficient); State v. Hodge, 726 A.2d 531, 542 (Conn. 1999) (“persons with the same or similar characteristics but not the same race or gender as the challenged juror were not struck”).
  27. Flowers v. Mississippi, 139 S.Ct. 2228, 2243.
  28. Foster v. Chatman, 136 S.Ct. 1737, 1747 (2016); United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994).
  29. Salazar v. State, 795 S.W.2d 187 (Tex. Crim. App. 1990) (holding challenge to a single Hispanic potential juror gave rise to a Batson analysis).
  30. Batson, 476 U.S. at 97.
  31. Id. at 98 n. 20.
  32. Miller-El v. Dretke, 545 U.S. 231, 241 (2005) quoting Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 147 (2000) (employment discrimination case).
  33. Batson, 476 U.S. at 83.
  34. Powers v. Ohio, 499 U.S. 400 (1991).
  35. Hernandez v. New York, 500 U.S. 352 (1991).
  36. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).
  37. Georgia v. McCollum, 505 U.S. 42 (1992).
  38. Powers, 499 U.S. at 409; J.E.B. v. Alabama, 511 U.S. 127 (1994).
  39. See, e.g. United States v. Brown, 352 F.3d 654, 668 (2d Cir.2003); United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir. 1998) (stating in dicta that it would be “unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a Muslim, etc. but suggesting it would be proper to strike the potential juror on the basis of certain attitudes that would prevent him from basing his decision on the evidence and instructions); People v. Bryant, 253 Cal. Rptr. 3d 289 (Cal. App. 2019) (holding that while a party may use a peremptory to strike prospective jurors, the party may not use group bias against “members of an identifiable group distinguished on . . . religious . . . grounds.”); Pacchiana v. State, 240 So. 3d 803, 813 (Fla. App. 2018) (“Appellant has a right to a fair and impartial jury panel where the state does not exclude members of a religion in the absence of competent substantial evidence that the potential juror cannot be fair and impartial due to her views related to her members in that religion.”); Oswalt v. State, 19 N.E.3d 241, 246 (Ind. 2014) (peremptory challenges only limited by “the constitutional ban on racial, gender, and religious discrimination.”); State v. Fuller, 862 A.2d 1130, 1143 (N.J. 2004) (“cognizable groups include those defined on the basis of religious principles . . . .”); State v. Purcell, 18 P.3d 113, 122 ¶ 29 (Ariz. App. 2001); State v. Hodge, 726 A.2d 531, 550 (Conn. 1999).
  40. SmithKline Beecham Corp. v. Abbott Laboratories, 740 F.3d 471, 479-86 (9th Cir. 2014) (holding “strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”); People v. Garcia, 92 Cal.Rptr.2d 339, 347-48 (Cal. App. 2000); but see United States v. Windsor, 570 U.S. 744, 754 (2013) (holding that whether heightened equal protection scrutiny should apply was still being debated and considered by the lower courts in a “marriage” definition case); United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005) (doubting whether Batson applied to sexual orientation).
  41. Eight federal circuit courts and 27 states have noted the exclusion of Caucasians based upon racial discrimination violates Batson: U.S. v. Thompson, 528 F.3d 110 (2nd Cir. 2008) (rejecting the argument that Batson applies only to minorities); Gov’t of the Virgin Islands v. Forte, 865 F.2d 59, 64 (3rd Cir. 1989); U.S. v. Blanding, 250 F.3d 858, 861 (4th Cir. 2001); U.S. v. Bennett, 664 F.3d 997 (5th Cir. 2011); U.S. v. Kimbrel, 532 F.3d 461 (6th Cir. 2008); United States v. Kehoe, 712 F.3d 1251 (8th Cir. 2013); Adam v. Carvalho, 138 Fed.Appx. 7 (9th Cir. 2005); U.S. v. Walker, 490 F.3d 1282, 1291-92 (11th Cir. 2007); Ex parte Pressley, 770 So.2d 143, 145 (Ala. 2000); Childs v. State 237 S.W.3d 116 (Ark. App. 2006); People v. Luna, 2018 WL 2251311 (Cal. App. May 1, 2018); State v. Wright, 860 A.2d 278 (Conn. App. 2004); McCoy v. State, 112 A.3d 239 (Del. 2015); Epps v. United States, 683 A.2d 749 (DC App 1996); Anderson v. State, 720 So.2d 741 (Fla. App. 2000); Culver v. State, 724 S.E.2d 485 (Ga. App. 2012); State v. Daniels, 122 P.3d 796 (Hawaii 2005); People v. Rivera, 810 N.E.2d 129 (Ill. App. 2004); Jeter v. State, 888 N.E.2d 1257 (Ind. 2008); State v. Mootz, 808 N.W.2d 207 (Iowa 2012); State v. Knox, 609 So.2d 803 (La. 1992); Gilchrist v. State, 667 A.2d 876 (Md App 1995); Commonwealth v. Jordan, 785 N.E.2d 368 (Mass. 2003); People v. Bell, 702 N.W.2d 128 (Mich. 2005); McFarland v. State, 707 So.2d 166, 171 ¶ 13 (Miss. 1998); State v. Gray, 887 S.W.2d 369, 385 (Mo. 1994); State v. Salas, 236 P.3d 32 (N.M. 2010); People v. Kern, 554 N.E.2d 1235 (NY App 1990); State v. Hurd, 784 S.E.2d 528 (N.C. App. 2016); State v. Davenport, 2011 Ohio 4635 (Ohio App 2011); Commonwealth v. Garrett, 689 A.2d 912 (Pa. Super. 1997); State v. Cochran, 631 S.E.2d 294 (S.C. App. 2006); State v. Spratt, 31 S.W.3d 587 (Tenn. Crim App 2000); Blackman v. State, 2000 Tex. App. LEXISs 2997 (Tex. App. May 8, 2000); State v. Shepherd, 989 P.2d 503 (Utah App 1999); Stevens v. Commonwealth, 826 S.E.2d 895 (Va. App. 2019).
  42. Miller-El v. Dretke, 545 U.S. 231, 270 (Breyer, J., concurring).
  43. Batson, 476 U.S. at 98.
  44. 500 U.S. 352 (1991).
  45. Id. at 356 (the prosecutor expressed concern that the jurors would not be able to listen and follow the interpreter).
  46. Id. at 371-72.
  47. 514 U.S. 765 (1995).
  48. Id. at 766.
  49. Id.
  50. Id.
  51. Id .
  52. Id.
  53. Elem v. Purkett, 25 F.3d 679 (8th Cir. 1994).
  54. Id. at 683.
  55. Purkett, 514 U.S. at 768.
  56. Id. at 769.
  57. Id.
  58. Id. at 770 (Stevens, J., dissenting joined by Breyer, J.).
  59. Id. at 775.
  60. Miller-El v. Cockrell, 537 U.S. 322 (2003).
  61. Id. at 338-39.
  62. Id. at 339.
  63. Id.
  64. Batson, 476 U.S. at 99; Ford v. Georgia, 498 U.S. 411, 420 (1991) (holding that a pretrial motion preserved the Batson challenge); United States v. Tomlinson, 746 F.3d 535, 535-36 (6th Cir. 2014) (objection was timely when raised before jury was sworn); McCrory v. Henderson, 82 F.3d 1243 (2nd Cir. 1996) (holding that if the objection is raised during jury selection, the error is remedial); Morning v. Zapata Protein, Inc. 128 F.3d 213, 215 (4th Cir. 1997) (“a prompt objection provides an opportunity for prompt error correction, avoiding costly mistrial and unnecessary reversals”); United States v. Dobynes, 905 F.2d 1192, 1196-97 (8th Cir. 1990) (holding that Batson challenge raised for the first time after trial was untimely in part because only remedy after trial is vacating the conviction); United States v. Forbes, 816 F.2d 1006, 1011 (5th Cir.1987) (“The ‘timely objection’ rule is designed to prevent defendants from ‘sandbagging’ the prosecution by waiting until trial has concluded unsatisfactorily before insisting on an explanation for jury strikes that by then the prosecutor may largely have forgotten.”).
  65. See, e.g. State v. Valdez, 140 P.3d 1219, 1220 (Utah 2006); State v. Parrish, 111 P.3d 671, 674 ¶¶ 15-21 (Mont. 2005) (Batson objection at unrecorded sidebar violated procedures, objection after venire released too late, objection at first day of testimony too late); State v. Sparks, 355 S.E.2d 658, 659 (Ga. 1987) (Batson objection should be raised prior to time jurors are selected and sworn).
  66. 537 U.S. at 326.
  67. 139 S.Ct. at 2334.
  68. Foster v. Chapman, 136 S.Ct. 1737, 1743 (2016).
  69. See, Batson v. Kentucky, 476 U.S. at 106 (Marshall, J., concurring); State v. Veal, 930 N.W.2d 319, 359-61 (Iowa 2019) (Appel, J., concurring in part and dissenting in part); State v. Saintcalle, 309 P.3d 326 (Wash. 2013) (overruled in part on other grounds by Seattle v. Erickson, 398 P.3d 1124 (Wash. 2017); Jeffrey Bellin & Junichi Semitsu, Widening Batson’s Net To Ensnare More Than the Unapologetically Bigoted or Painfully Unimaginative Attorney, 96 Cornell L. Rev. 1075, 1077-78 (2011); Nancy S. Marder, Foster v. Chatman: A Missed Opportunity for Batson and the Peremptory Challenge, 49 Conn. L. Rev. 1137, 1182-83 (2017); Antony Page, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, 85 B.U. L. Rev. 155, 178-79 and n.102 (2005); Tania Tetlow, Solving Batson, 56 Wm. & Mary L. Rev. 1859, 1887-89 (2015).
  70. Veal, 930 N.W.2d at 361 (Iowa, 2019) (J. Appel concurring and dissenting) (giving a historical analysis of discriminatory challenges and how the courts have attempted to stop the discrimination).
  71. Tennyson v. State, 2018 Tex. Crim. App. LEXIS 1206 n. 6 (Tex. Crim App 2018) (J. Alcala, dissenting from refusal of review), citing Alafair S. Burke, Prosecutors and Peremptories, 97 Iowa L. Rev. 1467, 1471-72 (2012). In recognition of the failure of the current framework to effectively combat racial discrimination during jury selection, the Washington State Supreme Court recently announced a modified Batson inquiry. State v. Jefferson, 429 P.3d 467, 469 –70 (Wash. 2018).
  72. 221 A.3d 407 (Conn. 2019).
  73. Id. at 412.
  74. Id. at 417.
  75. Id at 427-428.
  76. Id. at 437.
  77. Id. at 437, Conn. Gen. Stat. § 51-232(c). In 1996, the juror questionnaire provision was amended to provide “that questionnaires could inquire about a juror’s name, age, race and ethnicity, occupation and education and required the questionnaire to inform the prospective juror that the information concerning race and ethnicity is required only to enforce nondiscrimination in the selection process, that the furnishing of such information is not a prerequisite to being qualified for jury service and that such information need not be furnished if the prospective juror finds it objectionable to do so.” Id.
  78. Holmes at 437.
  79. Id.
  80. Id.
  81. Id., quoting Seattle v. Erickson, 398 P.3d 1124.
  82. People v. Rhoades, 45 P.3d 89 (Cal. 2019).
  83. Id. at 424.
  84. Id.
  85. Id. at 428, citing People v. Johnson, 30 Cal.4th 1302, 1306, 71 P.3d 270 (Cal. 2003).
  86. Id. at 430.
  87. Id. at 456.
  88. Id. at 457.
  89. Id.
  90. Id. at 469.
  91. Id.
  92. Id.
  93. Id. citing State v. Rayfield 631 S.E.2d 244, 247 (S.C. 2006); Melbourne v. State 679 So.2d 759, 764 (Fla. 1996); State v. Parker 836 S.W.2d 930, 939-940 (Mo. 1992); State v. Holloway 553 A.2d 166, 171-172 (Conn. 1989); Wash. Gen. R. 37(d).
  94. Rhoades at 469.
  95. Id. at 470-471.
  96. 681 So. 2d 173, 176 (Ala. 1996).
  97. Id. at 178-79 quoting Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987).
  98. Spencer v. State, 238 So. 3d 708, 712 (Fla. 2018) quoting State v. Slappy, 522 So. 2d 18, 22 (Fla. 1988).
  99. Wash. Gen. R. 37(a), (b).
  100. Wash. Gen. R. 37(c).
  101. Id.
  102. Id.
  103. Wash. Gen. R. 37(d).
  104. Wash. Gen. R. 37(e).
  105. Wash. Gen. R. 37(f).
  106. Wash. Gen. R. 37(e).
  107. Id.
  108. Wash. Gen. R 37 (g).
  109. Wash. Gen. R 37 (h).
  110. Id.
  111. Wash. Gen. R. 37(i).
  112. Id.
  113. Id.
  114. Id.
  115. State v. Jefferson, 429 P.3d 467 (Wash. 2018).
  116. Id. at 481, ¶ 68, and see J. Madsen, concurring/dissenting, stating “I write separately because the lead opinion essentially adopts GR 37 into our Batson framework, which is unnecessary and inappropriate.” Id. at 482, ¶ 73.
  117. State v. Currey, 298 Or. App. 377, 389, 447 P.3d 7,14 (2019).
  118. Id.
  119. Id.
  120. See, e.g. State v. Veal, 930 N.W.2d 319, 358 (Iowa 2019) (J. Appel concurring in part and dissenting in part).
  121. Dorothy E Roberts, “Foreward: Abolition Constitutionalism,” 133 HVLR 1, 102-03 (2019).
  122. Id. at 95.
  123. Id. at 98.
  124. Id. at 104.
  125. Id. at 100.
  126. Flowers v. Mississippi, 139 S.Ct. 2228, 2234 (2019).
  127. Id. at 2235.
  128. Id .
  129. Id.
  130. Id.
  131. Id.
  132. Id. at 2252-74.
  133. Id. at 2255.
  134. Id. at 2269.
  135. Id. at 2270.
  136. Id.
  137. Id. at 2272.
  138. Id. at 2271, citing Campbell v. Louisiana, 523 U.S. 392, 404 n 1 (1998) (Thomas, J. concurring in part and dissenting in part).
  139. Id.
  140. Id. at 2272.
  141. Id. at 2273.
  142. Id.
  143. Id.
  144. 100 U.S. 303, 308-09 (1880).
  145. Id. citing Swain v. Alabama, 380 U.S. 202 (1965).
  146. Flowers at 2272 citing Swain, 380 U.S. at 212.
  147. Batson, 476 U.S. at 102-03.
  148. Id. at 103.
  149. Id. at 103-04.
  150. Miller-El v. Dretke, 545 U.S. 231, 268-69.
  151. Id.
  152. Id. at 268-69.
  153. Batson, 476 U.S. at 105.
  154. Id. at 105-06.
  155. Id. at 107.
  156. Id.
  157. Id. at 107-08.
  158. See, e.g. State v. Veal, 930 N.W.2d 319, (Iowa 2019) (J. Wiggins, cc and dissent); Comm. v. Maldonado, 788 N.E.2d 968, 975 (Mass. 2003) (Marshall, C.J. concurring.) (stating concerning peremptory challenges: “it is time either to abolish them entirely, or to restrict their use substantially.”); Hatten v. State, 628 So.2d 294, 305 (Miss. 1993) (J. Sullivan, dissenting) (“In my view any peremptory challenge is discriminatory and I would abolish the use of peremptory challenges in the trial courts in Mississippi.”); Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809 (1997).
  159. Swain v. Alabama, 380 U.S. 203, 244 (1965) (J. Goldberg, dissenting).
  160. State v. Veal, 930 N.W.2d 319, 340 (Iowa 2019), see also Minetos v. City University of New York, 925 F.Supp. 177, 183, 185 (S.D.N.Y.1996) (stating that “all peremptory challenges should now be banned as an unnecessary waste of time and an obvious corruption of the judicial process” and holding that “peremptory challenges per se violate equal protection”); Alen v. State, 596 So.2d 1083, 1086 (Fla. Dist. Ct. App. 1992) (Hubbart, J., concurring) (“Rather than engage in a prolonged case-by-case strangulation of the peremptory challenge over a period of many years which in the end will effectively eviscerate the peremptory challenge or, at best, result in a convoluted and unpredictable system of jury selection enormously difficult to administer—I think the time has come, as Mr. Justice Marshall has urged, to abolish the peremptory challenge as inherently discriminatory”); People v. Hernandez, 552 N.E.2d 621, 625 (1990)(Titone, J., concurring)(“I suspect that rather than developing a complex set of judicially imposed limitations and standards, the most constructive course would be for the Legislature to take a hard look at the existing peremptory system with a view toward determining whether it is still viable”), aff’d 500 U.S. 352 (1991).
  161. Veal, 930 N.W.2d at 340-41.
  162. Id.
  1. Miller-El v. Dretke, 545 U.S. 231, 272 (2005) (Breyer, J., concurring). [↩]

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