Edmonson: Dramatic Change in the Use of Peremptory Challenges
| Publication year | 1992 |
| Pages | 687 |
| Citation | Vol. 21 No. 4 Pg. 687 |
1992, April, Pg. 687. Edmonson: Dramatic Change in the Use of Peremptory Challenges
In one brief 1991 opinion, the U.S. Supreme Court dramatically altered the manner in which jury selection will proceed in state and federal civil cases. On June 3, 1991, a divided court held in Edmonson v. Leesville Concrete Co.(fn1) that private civil litigants who exercise peremptory challenges on the basis of race violate the equal protection guarantee of the Fifth and Fourteenth Amendments. The decision extends to private civil litigation the Court's 1986 pronouncement in Batson v. Kentucky,(fn2) which bars prosecutors from exercising racially based peremptory challenges in criminal cases. Virtually any peremptory challenge of a juror, if opposed by an adversary, now must be defended as non-race-based and will meet judicial scrutiny.
This article briefly addresses some of the historical considerations in the jury selection process and summarizes Edmonson and key holdings in several related cases. It also discusses some of the practical issues likely to be significant in the post-Edmonson environment.
The peremptory challenge originated several hundred years ago in the common law of England and has been utilized here since Colonial times.(fn3) Historically, a trial lawyer's peremptory challenges constituted one of the few courtroom matters not subject to significant judicial scrutiny. The peremptory challenge has been defined as "the right to challenge a juror without assigning or being required to assign a reason for the challenge."(fn4)
As the U.S. Supreme Court stated in the 1965 case of Swain v. Alabama,
Unlike the challenge for cause, a peremptory challenge traditionally permitted rejection for a real or imagined partiality. Attorneys often exercised it based on their sudden impressions or thoughts irrelevant to legal proceedings, such as the races, religions, nationalities occupations or affiliations of people in the jury pool. In Swain, the Court specifically approved race-based challenges in criminal cases unless a defendant could meet the virtually impossible standard of establishing a pattern of prosecutorial discrimination over a series of cases.(fn6)[t]he essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry, and without being subject to the court's control.(fn5)
Ethnic, cultural, social and economic stereotypes and generalizations---as well as physical characteristics---long have played a significant role in the strategies of many highly regarded trial lawyers. Two frequently cited examples of this are Clarence Darrow and Samuel Leibowitz. Darrow's well-known formula provides as follows:
Never take a German; they are bull-headed. Rarely take a Swede; they are stubborn. Always take an Irishman or Jew; they are the easiest to move to emotional sympathy. Old men are generally more charitable and kindly disposed than young men; they have seen most of the world and understand it.(fn7)
Leibowitz thought that thick-set men in their late fifties with dimpled chins and compressed lips were "born hangers"; that tall, bespectacled men with long, narrow faces were bigoted churchmen; and that self-made men would send defendants to the gallows without compunction. He believed that young, round-faced, blue-eyed men were naturally sympathetic and "let-livers," and that successful businessmen also were favorable unless they had close-set eyes, tight lips and square jaws.(fn8)
In recent years, a number of lawyers have rejected the use of racial, ethnic, gender, appearance and employment stereotypes as ineffective and dangerous. However, some modern commentators continue to assert such stereotypes as guides for jury selection,(fn9) and many lawyers continue to use them. Popular present-day stereotypes include, for example, that racial and ethnic minorities tend to favor personal injury plaintiffs
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