Disability-Based Peremptory Challenge: Need for Elimination

• Author: Natasha Azava
• Position: J.D. Candidate Spring 2006, Benjamin N. Cardozo School of Law
• Pages: 121-152

Page 121

Introduction

Millions of United States citizens are called to jury duty every year. As Justice Kennedy said, "[j]ury service is an exercise of responsible citizenship by all members of the community, including those who otherwise might not have the opportunity to contribute to our civil life."¹

The United States Supreme Court has observed that "for most citizens the honor and privilege of jury duty is their most significant opportunity to participate in the democratic process."² "People with disabilities have long been denied the right to serve on a jury."³ Until recently, state laws describing jury qualifications "entirely excluded people with any disabilities."⁴ Moreover, practical barriers such as: "inaccessible courtrooms, difficulty in obtaining transportation to court, and a lack of reasonable accommodations such as sign interpreters or assistive communication devices," made their participation in jury service impractical.⁵ This situation improved in 1990 with the enactment of the Americans with Disabilities Act ("ADA")⁶ which required state courts to accommodate⁷ persons with disabilities.⁸ Moreover, manyPage 122 states followed the spirit of the ADA and adopted "statutes providing for the individual evaluation [of the fitness] of a person with a disability, for express protection against per se exclusion, and for evaluation of abilities to be individualized to the facts and circumstances of the particular trial."⁹ As a result, today no state categorically excludes persons with disabilities from jury service.¹⁰ Even with this progress, however, misconceptions about people with disabilities and their competence to serve on juries still exist and are not entirely resolved within the legal community. Despite their considerable numbers,¹¹ people with disabilities have many barriers to overcome in order to serve on juries. Though people with disabilities are protected from summary dismissal by the judge and other court employees,¹² their likelihood of being eliminated from a juryPage 123 by a challenge for cause or a peremptory challenge is still great.¹³ These exclusions occur even with the ADA's requirement that disabled individuals may not automatically be excluded from public service.¹⁴

Challenges for cause and peremptory challenges represent the two ways that parties can exclude "undesirable" jury candidates from jury service. A challenge for cause¹⁵ is the removal of a potential juror for a specific reason which a party must openly declare. If the trial judge finds the challenge sufficient in law, the challenge will be sustained. There is no limit on the number of for-cause challenges, provided that the party establishes the basis for the challenge to the satisfaction of the court.¹⁶ Often, the permissible reasons for challenges are specific and codified.¹⁷ A peremptory challenge,¹⁸ on the other hand, "is one exercised withoutPage 124 a reason stated, without inquiry and without being subject to the court's control."¹⁹ In effect, parties can remove a potential juror even though he qualifies to serve under the statute. Hence, peremptory challenges allow litigants to strike potential jurors based on purely subjective and capricious considerations. For many years, this carte-blanche ability to remove jurors allowed parties to exclude jurors based on race or gender.²⁰

However, over the past twenty years, the Supreme Court has greatly limited this discretion.

In 1986, in Batson v. Kentucky, the Supreme Court held that peremptory challenges based on race violate the Equal Protection Clause and as such are unconstitutional.²¹ In 1994, in J.E.B. v. Alabama ex rel. T.B., the Supreme Court stated the same about peremptory challenges based on gender.²² Peremptory challenges based on disability, however, are still constitutional. Under the current standard, when a court finds a disabled person qualified and therefore able to survive a challenge for cause, parties can merely exercise a peremptory challenge to remove the juror, as long as they have peremptory strikes left. Many cases illustrate this point.²³ For example, in People v. Guzman, when the court rejected counsel's challenge for cause, the attorney exercised a peremptory challenge and nonetheless excluded a deaf juror.²⁴

Applying such challenges undermines all of the important progress made in recent years towards opening the courts to people with disabilities. Peremptory challenges based solely on a person's disability represent ignorance on the part of those who exercise them. Instead of evaluating one's disability individually to determine whether that disability inter-Page 125feres with one's duty as a juror, parties generalize about people with disabilities and make irrational assumptions that are the "Vestigial fruits' of a history of prejudice, segregation, and exclusion."²⁵ As one deaf attorney noted, "[u]nfortunately, lawyers who know little or nothing about deafness are exercising their peremptory challenges to remove deaf people from the jury."²⁶

Peremptory challenges therefore permit the reinforcement of many unfair prejudices and stereotypes about individuals with disabilities that many have struggled to confront in recent years. "In effect, peremptory challenges remain the final and ultimate bastion of prejudice, segregation, and exclusion preventing jury service by 'qualified' people with physical and mental impairments."²⁷ And as one judge admits, "if the mentally ill and the mentally retarded are not 'suspect classes' . . . where does that leave the disabled prospective juror who is peremptorily challenged because of his or her disability? I submit, very low in the pecking order of classifications under equal protection of the law."²⁸ In these circumstances, it seems that unless there is some change in the peremptory challenge as it is applied to people with disabilities, all of the progress in statutory law will be for naught.

This article explores improvements in state jury laws that have resulted in the increased access to courts of jurors with disabilities and argues that even if this progress in carefully evaluating the individual qualifications of prospective disabled jurors continues, the peremptory challenge will remain an obstacle to jury service. Therefore, to ensure equal opportunities for jurors with disabilities, the peremptory challenge based on disability should be prohibited, just like the peremptory challenge based on race²⁹ and gender.³⁰

The article consists of three parts. Part I discusses the progress in statutory laws made in the past ten years to provide access to jury service to people with disabilities. It also addresses the strength of various concerns that arise in allowing people with disabilities to serve on a jury. Part II explores the possibility of an extension of the Batson modified peremptory challenge model to classifications based on disabilities and Part III advocates reasons for such an extension.Page 126

I Past Versus Present

This section surveys statutory and policy changes that states have implemented to provide disabled people with access to jury service. It also looks at the problems of having a disabled juror sit at a trial and discusses how these problems can be solved.

A Juror Qualification Requirements

In the past, state statutes contained provisions that automatically disqualified persons whose senses of hearing or sight were substantially impaired.³¹ For instance, statutes required a juror to be in possession of his "natural faculties,"³² which was construed as an automatic disqualification of a blind person.³³ All such disqualification provisions have been repealed.³⁴ "As of September 1994, no state had a statute or rule of procedure on the books that per se disqualified a blind person from serving as a juror."³⁵ An increasing number of states have amended their laws to prohibit the disqualification of a person from jury service solely on the basis of loss of hearing.³⁶ West Virginia's statute contains such a prohibition, but also provides a test to determine when a person with a disability may be disqualified:

A person who is physically disabled and can render competent [jury] service with reasonable accommodation shall not be ineligible to act as juror or be dismissed from a jury panel on the basis of disability alone: Provided, That the circuit judge shall, upon motion by either party or upon his or her own motion, disqualify a disabled juror if the circuit judge finds that the nature of potential evidence in the case including, but not limited to, the type or volume of exhibits or the disabled juror's ability to evaluate a witness or witnesses, unduly inhibits the disabled juror's ability to evaluate the potential evidence.³⁷Page 127

Juror qualification requirements are set by statute or court rules at both the state and federal levels. Under federal law, a person is not qualified to serve on a jury if he or she is incapable by reason of mental or physical infirmity to render satisfactory jury service.³⁸ Mirroring the federal law, many states currently have uniform provisions that exclude people who are incompetent "by reason of physical or mental ability to render satisfactory jury service."³⁹ Earlier cases have construed these provisions as an absolute disqualification of blind and deaf individuals.⁴⁰ In other cases, however, they have been interpreted as giving courts discretion to assess the suitability for jury service of a person with a disability, depending on the particular circumstances of each case.⁴¹

B Challenge for Cause

Many states have statutory provisions allowing parties to...