63 J. Kan. Bar Assn. September, 18 (1994). WHAT EVER HAPPENED TO THE PEREMPTORY CHALLENGE.

Author:Edward V. Byrne

Kansas Bar Journals

Volume 63.

63 J. Kan. Bar Assn. September, 18 (1994).


Journal of the Kansas Bar AssociationSeptember, 1994WHAT EVER HAPPENED TO THE PEREMPTORY CHALLENGE? [FN1]Edward V. ByrneCopyright (c) 1994 by the Kansas Bar Association; Edward V. Byrne

«The right of [peremptory]

challenge...has always been held essential to the fairness of trial by jury. [I]t must be exercised with full freedom, or it fails of its full purpose.»

- Lewis v. United States, 146 U.S. 370, 376, 378 (1892).

"Our constitution is color-blind, and neither knows nor tolerates classes among citizens."

- Plessy v. Ferguson, 163 U.S. 537, 559 (1896).

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  1. Introduction

    Peremptory: Adj.; Absolute, final, decisive. [FN2]

    When Mr. Justice George Shiras wrote in ardent defense of the peremptory challenge 102 years ago, he and his concurring brethren in Lewis v. United States [FN3] no doubt believed they were carving in stone. [FN4] They could not foresee the radical metamorphosis that would occur in the law of voir dire over the next century. Nor did they recognize that the trusted and time-honored jury procedure to which they paid homage was already on a fatal collision course with the recently enacted Fourteenth Amendment. [FN5] Today the Lewis Court would scarcely recognize the common law's beloved peremptory strike, that "arbitrary and capricious species of challenge" [FN6] once lauded by Blackstone as "a provision full of...tenderness and humanity to prisoners, for which... English laws are justly famous." [FN7]

    Do peremptory challenges - the origin of which is "older than the Republic" [FN8] - really still exist in the law? What are their inherent constitutional limitations in modern jurisprudence? Are recent developments in this area confined to the criminal law arena, or are civil practitioners also affected? Test your knowledge with the following hypotheticals:

    Problems and Issues

    Scenario 1: A college student is on trial for "date rape." He admits having sex with the female complainant in his dorm room, but maintains that the act was consensual. There is no corroborating evidence, and the jury's verdict will be based entirely upon the credibility of the two parties. A jury selection consultant hired by defense counsel advises that in acquaintance rape prosecutions, women often make better "defense jurors" than men. [FN9]

    Relying on the expert, during voir dire defense counsel peremptorily strikes as many males as possible in an effort to "load" the petit jury with women. The prosecutor objects, but the trial judge overrules and allows the challenges to stand. Did the court rule correctly?

    Scenario 2: A 27-year-old female plaintiff, alleging a long pattern of sexual harassment by her male supervisor, sues her corporate employer and several managerial officials. During jury selection plaintiff's counsel exercises all of his available peremptory strikes against venirepersons age 50 or over, on the assumption that such jurors may not be "in tune" with personnel problems in the contemporary workplace and therefore generally unsympathetic to claims of sexual harassment. The resultant petit jury consists of no one over 42.

    The defendants object, arguing that plaintiff's deliberate use of age-based peremptories violates the Fourteenth Amendment's Equal Protection Clause. The presiding judge sustains the defense objection and restores some of the struck venirepersons to the array, [FN10] finding that plaintiff's strategy was indeed primarily age-motivated and therefore unconstitutional. Correct ruling?

    Scenario 3: A defendant is on trial for the attempted murder of a physician who operates an area abortion clinic. The defendant is active in a fundamentalist church which has been quite vocal in its opposition to abortion. When the case goes to trial, several members of local Roman Catholic, Southern Baptist and Assembly of God congregations - all of which vigorously proselytize against abortion - chance to appear on the venire which has been summoned for jury duty. Over defense objection, the prosecutor peremptorily strikes those venirepersons, and is upheld by the trial judge. If defendant is convicted, will the case be reversed?

    Scenario 4: During voir dire in a medical malpractice action, defense counsel representing the physician's insurance carrier exercises a peremptory strike against a juror who is permanently wheel chair-bound as the result of a childhood accident. The juror is college educated, employed full time and entirely capable of serving. Defense counsel, however, views disabled venirepersons as likely to be "plaintiff-oriented" in an injury case. The trial court allows the challenge. Error?

    Less than 10 years ago, none of the above situations would have presented any appealable issue. A peremptory challenge was unassailable for any reason. But today, a reversal is guaranteed in at least some of these fact patterns. Before examining recent developments in the law of peremptory challenges, a brief review of the voir dire process itself is in order.

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  2. Voir Dire Challenges in a Nutshell

    In a jury trial, there are two methods by which venirepersons perceived as "undesirable" may be removed from the panel of prospectives. A challenge for cause [FN11] is the removal of a potential juror for a specific reason which must be openly declared and found by the trial judge to be sufficient in law. There is no limit on the number of for-cause challenges which a litigant may exercise, provided the basis for such is established to the satisfaction of the court. Curiously, although the Kansas Code of Criminal Procedure sets forth nine separate grounds which will support a challenge for cause in a criminal prosecution, [FN12] there is no comparable provision in the Civil Procedure Code. [FN13] Presumably, the same considerations govern in both types of cases.

    In contrast, a peremptory challenge [FN14] is the privilege of removing a venireperson even though he or she is statutorily qualified to serve. The challenge is "exercised without a reason stated, without inquiry and without being subject to the court's control." [FN15] As noted by the Kansas Supreme Court in a recent decision, " p eremptory challenges...are determined by the attorneys on each side without showing any cause. They are exercised after challenges for cause have been ruled upon and after a qualified panel has been selected." [FN16] Peremptory challenges enable litigants to strike potential jurors from the panel of prospectives upon purely subjective considerations, if counsel believes that the challenged venireperson may harbor a natural prejudice against his client or in favor of the opposing litigant.

    There is no federal or state constitutional right to a peremptory challenge system at jury trial. [FN17] The peremptory is statutory in nature, and is entirely a product of legislative grace. [FN18] Some have argued vigorously for abolition of the privilege. [FN19]

    In civil cases, Kansas law allows litigants three peremptories each. [FN20] Federal law provides likewise. [FN21] In criminal cases in Kansas, the number of peremptory challenges allowed the prosecution and defense varies in accordance with the seriousness of the charge(s). [FN22] The Federal Rules of Criminal procedure adopt a similar approach. [FN23]

  3. Historical Background

    Before turning to an examination of recent Supreme Court decisions which have established constitutional limitations on the voir dire process, a brief historical review of the case law will be helpful.

    The United States Supreme Court first dealt with the racial composition of trial juries in an important Reconstruction-era ruling, Strauder v. West Virginia, [FN24] which invalidated a state statute providing that only white men could serve as jurors. Strauder held that a criminal defendant has the right to be tried by a jury whose members are selected by non-discriminatory criteria. [FN25] In another

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    case a dozen years later, the Court noted that " t he right of peremptory challenge...has always been held essential to the fairness of trial by jury. I t must be exercised with full freedom, or it fails of its full purpose." [FN26] The Court soon reaffirmed these views, noting that " t he right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused..." [FN27]

    In 1965 the Supreme Court was first asked squarely to address the question of whether a black defendant is denied equal protection of the law by a prosecutor's exercise of racially discriminatory peremptory challenges. In Swain v. Alabama, [FN28] the Court acknowledged that the systematic exclusion from master jury lists of blacks - or any other "identifiable group in the community which may be the subject of prejudice" [FN29] - runs afoul of the Fourteenth Amendment's Equal Protection Clause. Beyond this, however, the Court's opinion was rather inconsistent.

    On the one hand, the Court reaffirmed the absolute sanctity of the peremptory challenge, ruling that a prosecutor may strike a potential juror for any reason or no reason at all, and may not be compelled to explain the decision. Swain spoke of the "very old credentials" [FN30] of the peremptory challenge, discussed the reasons for the "long and widely held belief" [FN31] that it is "a necessary part of trial by jury," [FN32] and observed that it is "frequently exercised on grounds normally thought irrelevant to...

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