Peremptory Challenges: Free Strikes No More
| Publication year | 1993 |
| Pages | 1449 |
| Citation | Vol. 22 No. 7 Pg. 1449 |
1993, July, Pg. 1449. Peremptory Challenges: Free Strikes No More
Lawyers exercise peremptory challenges on the basis of an infinite number of hunches, gut reactions, myths and stereotypes, as well as an occasional serious study. Jurors are excused for reasons as straightforward as their beliefs and their jobs, and for reasons as esoteric as the bumper stickers on their cars and the magazines to which they subscribe. Jury selection remains a delicate art, not a science.
The question arises as to where the race of a prospective juror fits into this art. A recent poll of nearly 800 jurors revealed significant differences in the attitudes of black jurors and white jurors.(fn1) White jurors were far more likely than black jurors to believe that blacks were more apt to commit crimes than whites. Black jurors were far more likely than white jurors to believe that minority defendants get a less fair trial than white defendants. Given these results and previous anecdotal support for these propositions, it is not surprising that criminal lawyers have used race as a basis for exercising peremptory challenges.
In the past few years, the U.S. and Colorado Supreme Courts have addressed the question of whether the exercise of peremptory challenges on the basis of the race of the prospective juror is constitutional. This article reviews the history of attacks on race-based peremptory challenges and discusses the procedures used to investigate and resolve such attacks. The article also contains a brief discussion of other possible limits on peremptory challenges.
Historically, the exercise of peremptory challenges was not subjected to judicial scrutiny or control. As stated by the U.S. Supreme Court:
The 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.(fn2)
In the 1965 case of Swain v. Alabama,(fn3) the U.S. Supreme Court addressed the question of whether the use of peremptory challenges to strike prospective jurors on the basis of their race should be subject to judicial scrutiny. The defendant, who was black, contested the use of peremptory challenges by the prosecutor to exclude all the prospective jurors who were black. The Court held that this action by the prosecutor did not violate the defendant's right to the equal protection of the law because the defendant was entitled only to a jury which was impartial, not one which was representative of the community.
The Court noted that a different issue would be raised if the defendant could establish that there was an historical pattern of prosecutorial discrimination against jurors on the basis of race. The Court intimated that proof of a systematic exclusion of minority jurors would raise different equal protection issues and might require a different result. Establishing such a pattern required a great deal of investigation and was extremely difficult.
In the 1986 case of Batson v. Kentucky,(fn4) the U.S. Supreme Court recognized this difficulty and significantly reduced the burden of proof on the defendant. The Batson Court held that a black criminal defendant could establish
The requirement that the defendant establish a systematic exclusion of minority jurors over a series of trials was dropped. The challenges made in a single trial, as well as the comments and questions of the prosecutor during voir dire and the challenging process, could, under Batson, establish an improper motivationa prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial.(fn5)
Batson, like Swain, was based on the right of a minority defendant to the equal protection of the law, the law being the Sixth Amendment right to an impartial jury. However, the Court gave a hint of things to come by noting that the exclusion of a juror based on race deprives that juror of the right to serve on a jury and that such a denial may implicate the juror's right to the equal protection of the law.
The Colorado Supreme Court addressed the issue the next year in Fields v. People.(fn6) In this case, a black defendant was challenging the exclusion of Spanish-surnamed
The Colorado Supreme Court in Fields suggested that the equal protection argument was available only to defendants who were of the same class as the challenged jurors, although they did not decide this issue. The right to an impartial jury based on a fair cross-section of the community is available to all defendants, regardless of race, and the concerns protected by that right outweighed, in the court's opinion, the danger of imposing limits on the prosecutor's use of peremptory challenges.
Swain and Batson were based on the principle that a defendant has an equal protection right to an impartial jury and that this right is infringed when prospective minority jurors are excluded from jury service in the trial of a minority defendant. The white defendant in Holland v. Illinois(fn9) attempted to reach the same result under a purely Sixth Amendment analysis. The U.S. Supreme Court held that there was no Sixth Amendment right protecting a white defendant who complained that the prosecutor was striking blacks from the jury. However, a majority of the Court indicated that any defendant, regardless of race, would have standing to raise a claim asserting the excluded juror's equal protection right to serve on a jury,(fn10) and this approach was soon adopted.
To continue reading
Request your trial