Asymmetry as fairness: reversing a peremptory trend.

Author:Roberts, Anna


A recent Ninth Circuit decision, prohibiting peremptory challenges on the basis of sexual orientation, reveals the continuing evolution of the Batson doctrine. Meanwhile, contrary judicial voices demand the abolition of the peremptory challenge. This Article uncovers two phenomena that militate against abolition of the peremptory challenge, and in favor of allowing Batson's evolution. First, the justifications for abolition apply asymmetrically to prosecution and defense, suggesting that an asymmetrical approach is more apt. Second, the states historically adopted an asymmetrical approach--unequal allocation of peremptory challenges to prosecution and defense--and yet many state legislatures have recently abandoned asymmetry, with some legislators declaring that there are no reasons not to. This Article supplies those reasons, demonstrating that asymmetrical allocation of peremptory challenges not only brings benefits in the context of jury selection but also may help resist tendencies elsewhere in the criminal justice system to equate asymmetry with unfairness, and thus to erode foundational protections.

TABLE OF CONTENTS INTRODUCTION I. PEREMPTORY CHALLENGES, BATSON, AND THE CRITIQUES THAT THEY INSPIRE. A. Peremptory Challenges B. Batson v. Kentucky C. Critiques of Peremptory Challenges and Batson II. ASYMMETRICAL APPLICATIONS OF PEREMPTORY CRITIQUES A. Threat to Democracy B. Pol icing Problems C. Harmfulness D. Lack of Need III. PRESERVING ASYMMETRICAL APPROACHES. A. Asymmetrical Allocations of Peremptory Challenges 1. Origins of Asymmetrical Allocations 2. Contemporary Methods of Allocation 3. Trend Toward Symmetry B. Maintaining Asymmetry in Peremptory Allocations 1. Asymmetry in Service of Fairness 2. Benefits of Asymmetry in the Context of the Peremptory Challenge 3. Benefits of Asymmetry Beyond the Context of the Peremptory Challenge a. Constitutional Rights b. Roles of Prosecution and Defense c. Public Perception of the Criminal Justice System. CONCLUSION INTRODUCTION

The doctrine of Batson v. Kentucky, (1) created in 1986 and developed in numerous subsequent Supreme Court decisions, (2) continues to evolve. In January 2014, the Ninth Circuit Court of Appeals became the first circuit court to hold that the peremptory challenge, a trial tool with deep historical roots, (3) cannot be exercised on the basis of sexual orientation, (4) any more than it can on the basis of race, (5) ethnicity, (6) or gender. (7) Yet running alongside this doctrinal development is a current of despair: a growing body of judges, (8) as well as other commentators, (9) who declare that the doctrine has proved a miserable failure, and that, despite its deep historical roots, the peremptory challenge must be abolished.

Four rationales appear repeatedly in support of calls for abolition. First, that the peremptory challenge, which allows litigants to remove qualified potential jurors simply because they want them gone, is anti-democratic. (10) Second, that the Batson doctrine is difficult to police. (11) Third, that the harms caused by peremptory challenges are severe. (12) And fourth, that peremptory challenges serve few or no countervailing needs. (13) The best that can be done in light of these concerns, the critics say, is to retire Batson, abolish the peremptory challenge, and perhaps focus instead on methods of finding and removing potential jurors who have some demonstrable bias. (14)

This Article uncovers two phenomena that are critical to the discussion of the peremptory challenge in the criminal trial. (15) Each of them militates against across-the-board abolition of the peremptory challenge and in favor of allowing and encouraging the further evolution of the Batson doctrine.

First, the critiques used to justify the peremptory challenge's abolition do not apply symmetrically to the prosecution and the defense. Threats to democracy and other harms are qualitatively different when caused by prosecutorial peremptory challenges than when caused by defense peremptory challenges; (16) the need for the peremptory challenge is stronger on the part of the defense than on the part of the prosecution; (17) and there is at least some indication of differential policing of the peremptory challenge that imposes a more effective restraint on the defense's use of the peremptory challenge than on the prosecution's. (18) The relevant distinctions are downplayed or omitted by those judges who call for abolition--perhaps unsurprisingly, since some of these distinctions implicate troubling disparities in the criminal justice system over which they preside (19)--and an examination of them suggests that asymmetrical approaches are more appropriate than across-the-board abolition.

Second, many jurisdictions have already attempted an asymmetrical approach to the peremptory challenge, but this approach is steadily being eroded in a quiet march toward symmetry. In the decade prior to Batson, twenty states had in place a structure that corresponded to the asymmetrical harms and benefits of peremptory challenges: they allocated fewer to the prosecution than to the defense. (20) Since then, the quiet but steady trend has been toward symmetry: only nine states currently preserve asymmetry, (21) and two of those regimes have been under recent legislative attack. (22) Lying behind these developments, as with other developments in criminal procedure, seems to be the notion that with two evenly matched adversaries duking it out, fairness dictates equal tools on both sides. (23) According to legislators and rules drafters considering this issue, there was no apparent reason why the two sides should not receive equal numbers of peremptory challenges. (24) This Article provides those reasons, and recommends that asymmetry in the allocation of peremptory challenges--greater allocation of peremptory challenges to the defense than to the prosecution--be restored in those jurisdictions where it has been abandoned.

Part I introduces the peremptory challenge, the Batson doctrine, and four of the most prominent justifications for doing away with them. Part II demonstrates that each of these justifications applies asymmetrically to prosecution and defense, thus militating in favor of asymmetrical approaches rather than across-the-board abolition. Part III uncovers one such asymmetrical approach, the asymmetrical allocation of peremptory challenges, and tracks its steady erosion. It proposes that this trend toward symmetry be acknowledged and reversed. Despite the surface appeal of equating symmetry with fairness, asymmetry is at the root of various structures in our criminal justice system designed to protect fairness. (25) Preserving asymmetry in the peremptory challenge context has promise, not only as an approach to some of the problems with Batson, but also as a concrete form of resistance to quiet and troubling trends toward symmetry occurring elsewhere in the criminal justice system.


    1. Peremptory Challenges

      Peremptory challenges constitute the final stage of jury selection. (26) Of the potential pool of citizens who might serve as jurors, some never receive summonses. (27) Of those who present themselves at the courthouse, some are never called into a courtroom. (28) Of those who reach a courtroom, some are found to lack the relevant statutory qualifications, (29) some are excused because of the hardships that jury service would involve, (30) and some are removed through the attorneys' challenges "for cause," which allow the removal of those jurors that the court deems unable to be fair. (31) Those who remain are subject to peremptory challenges, allocated to each side in a limited number. (32) To exercise a peremptory challenge is merely to say "I do not want this person on the jury." (33) No further reason need be given, unless one's adversary makes a Batson challenge, (34) as described in the next subpart.

    2. Batson v. Kentucky

      The Supreme Court has set constitutional limits on the use of peremptory challenges. Batson v. Kentucky relied on the Equal Protection Clause to prohibit the use of peremptory challenges by the prosecution to effectuate purposeful discrimination against African-American jurors in criminal cases with African-American defendants. (35) Subsequent Supreme Court case law has expanded the reach of the Batson doctrine, so that purposeful discrimination on the basis of race, ethnicity, (36) or gender is prohibited, (37) in both civil and criminal cases, (38) regardless of which party is alleged to have engaged in it, (39) regardless of the race of the juror, (40) and regardless of the race of the parties. (41) The Supreme Court may soon decide whether the Ninth Circuit Court of Appeals was correct in finding that the doctrine should expand further, to include sexual orientation as a prohibited ground for exercising a peremptory challenge. (42)

      Batson laid out a three-step process for assessing a claim of purposeful discrimination, the basic structure of which is still in place. (43) In Batson's current form, the first step for an attorney who objects to a peremptory challenge is to establish a prima facie case of purposeful discrimination. (44) If the trial court finds that this step has been satisfied, the party who exercised the peremptory challenge must then give a reason that is neutral as to the alleged basis for the peremptory challenge. (45) Neutrality means little more than omitting mention of the prohibited basis. (46) The court's task at the third step is to assess whether the party objecting to the peremptory challenge has carried its burden of proving purposeful discrimination. (47) Batson declined to mandate "particular procedures" for courts to follow in their implementation of this three-step analysis (48)

    3. Critiques of Peremptory Challenges and Batson

      A wide variety of judges, (49) scholars, (50) and other commentators have called...

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