Fourteenth Amendment - equal protection: the Supreme Court's prohibition of gender-based peremptory challenges.

Author:Deverman, Beth A.
Position:Supreme Court Review - Case Note
 
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  1. INTRODUCTION

    In J.E.B. v. Alabama,(1) the United States Supreme Court held that the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution prohibits the exercise of peremptory challenges based solely on the gender of a potential juror. The Court applied a heightened scrutiny test, the traditional equal protection analysis prescribed for gender-based classifications, and concluded that "gender, like race, is an unconstitutional proxy for juror competence and impartiality."(2) Determining that peremptory challenges exercised on the basis of gender stereotypes do not substantially further the state's objective of securing a fair and impartial jury, the Court established a procedure for addressing allegations of gender discrimination in jury selection.

    This Note concludes that the Court correctly ruled that the concept of equal protection of the laws is inconsistent with state-sponsored discrimination in the exercise of peremptory challenges. This Note first argues that the decision is a logical and predictable extension of prior case law. Next, it determines that men and women are not fungible in the jury room, contrary to what the Court suggested, but rather each contributes a unique perspective. This uniqueness, however, does not translate into bias, and therefore, differences between the sexes cannot justify intentional exclusion of one gender or the other from the jury panel. Finally, this Note analyzes the impact of J.E.B. v. Alabama upon future jury selection procedures and its implications for criminal defendants being tried under the new peremptory challenge rule.

  2. BACKGROUND

    The Equal Protection Clause of the Fourteenth Amendment provides that "no State shall ... deny to any person within its jurisdiction the equal protection of the laws."(3) The development of equal protection jurisprudence within the context of jury selection procedures has spanned more than a century, yet its borders remain undefined and subject to expansion.

    1. EQUAL PROTECTION DOCTRINE

      The Equal Protection Clause guarantees that the government will treat similar individuals similarly.(4) Although the government may classify people on the basis of group characteristics, the Equal Protection Clause mandates that these classifications relate in varying degrees to legitimate governmental purposes.(5) To determine whether a state law is discriminatory either on its face or in its application, the Supreme Court developed a system of evaluating equal protection claims according to one of three levels of scrutiny. The level of scrutiny triggered depends upon the characteristics of the group receiving disparate treatment: rational basis review(6) applies to issues involving economic measures and classifications based on wealth and age;(7) strict scrutiny(8) applies to distinctions based on membership in a suspect class such as race, national origin, or alienage;(9) and an intermediate level of scrutiny applies to differentiation grounded in gender or illegitimacy.(10)

      The Court first recognized that gender classifications are subject to scrutiny under the Equal Protection Clause in Reed v. Reed.(11) Refining the scope of the Reed decision in subsequent cases, the Court clearly articulated that men, as well as women, constitute a cognizable group entitled to equal protection of the laws.(12) The Court established the intermediate scrutiny test, currently used to evaluate gender-based classifications, in Craig v. Boren.(13) In Mississippi University for Women v. Hogan,(14) the Court clarified this two-part test for determining whether a classification based on gender can withstand equal protection analysis: first, the classification drawn must serve important governmental objectives, and second, the discriminatory means must directly and substantially relate to the accomplishment of a legitimate end.(15)

    2. THE ORIGINS OF THE PEREMPTORY CHALLENGE

      The process of voir dire in a jury trial represents an attempt by attorneys and the court to determine the suitability of prospective jurors to serve on the jury during a particular litigation. Voir dire consists of two different selection techniques: the challenge for cause and the peremptory challenge. In exercising a challenge for cause, an attorney must articulate a specific, demonstrable reason for believing that the stricken juror will be unable to evaluate the facts of the case fairly and impartially.(16) Peremptory challenges, on the other hand, permit rejection of a juror "for a real or imagined partiality" and may be exercised "without a reason stated, without inquiry and without being subject to the court's control."(17)

      The peremptory challenge is an ancient institution that originated in thirteenth-century England.(18) Imported to the American colonies, it evolved into an important device for protecting the right of an accused to receive a trial by a fair and impartial tribunal.(19) Although the Constitution does not guarantee litigants a right to exercise peremptory challenges, each litigant's ability to strike arbitrarily a limited number of jurors has been codified by statutes and case law to assure an unbiased jury selection.(20) In practice, peremptory challenges are exercised upon intuition and first impressions and "on grounds normally thought irrelevant to legal proceedings or official action, namely, the race, religion, nationality, occupation or affiliations of people summoned for jury duty."(21)

    3. RACE AND JURY SELECTION

      The Supreme Court first interpreted the impact of the Equal Protection Clause on jury selection procedures in the landmark case Strauder v. West Virginia,(22) in which the Court overturned the murder conviction of an African-American man tried by an all-white jury and declared unconstitutional a West Virginia statute that rendered African-Americans ineligible for jury service. Justice Strong, writing for the Court, declared that laws completely excluding African-American persons from the jury venire, "so that by no possibility can any colored man sit upon the jury," violate the Equal Protection Clause of the Fourteenth Amendment.(23) Framing its argument as a rhetorical inquiry, the Court asked of what significance is the language of the Equal Protection Clause if not to declare that:

      the law in the States shall be the same for the black as for the white; that all persons, whether colored or white shall stand equal before the laws of the States, and, in regard to the colored race, for whose protection the amendment was primarily designed, that no discrimination shall be made against them by law because of their color?(24)

      Every criminal defendant is entitled to trial by a jury drawn from a venire that has been selected in a manner completely devoid of race-based discrimination.(25) While the decision in Strauder represented a significant step forward for newly emancipated African-American males, the Court stopped short of extending to all persons the equal protection of the laws--it conspicuously shunned women of all races condoning their exclusion from participation in the administration of justice.(26) It was not until nearly a century later that the Court recognized that "the exclusion of women from jury venires deprives a criminal defendant of his Sixth Amendment righ to trial by an impartial jury drawn from a fair cross section of the community."(27)

      The Supreme Court first addressed the issue of whether the Equal Protection Clause prohibits race-based peremptory challenges in the 1965 case Swain v. Alabama.(28) The petitioner, an African-American man convicted of rape and sentenced to death by an all-white jury, alleged that African-Americans were systematically under-represented on juries in his jurisdiction and that the prosecutor had peremptorily eliminated all potential African-American jurors at the petitioner's trial in violation of the Constitution.(29) Although the Court acknowledged that complete exclusion of members of a particular race from jury service violates the Constitution, it noted that the defendant had the burden of proving that a prosecutor has demonstrated a pattern of striking qualified African-American jurors with the result that no African-American persons are ever allowed to serve on juries.(30) Recognizing that the peremptory challenge safeguards the right of the accused to a fair trial and is a capricious device exercised on the basis of minimal knowledge about each juror, the Court held that a prosecutor's act of striking African-American veniremen in one isolated case does not constitute a violation of equal protection.(31)

      Twenty-one years later, in Batson v. Kentucky,(32) the Court rejected the evidentiary burden that the Court in Swain prescribed and instead ruled that "a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at defendant's trial."(33) The Court added that since the Court's decision in Strauder, states no longer have laws that facially discriminate against minority jurors.(34) Therefore, it is important to scrutinize the manner in which state officers, such as criminal prosecutors, administer statutes defining juror qualifications.(35) Justice Powell, writing for the majority,(36) stated that to establish a prima facie showing of purposeful discrimination in the administration of peremptory challenges, defendants: (1) must demonstrate that they are a member of a cognizable racial group and that the state has used peremptory challenges to strike potential jurors of the defendant's own race; (2) may rely on the fact that the use of peremptory challenges in jury selection allows discrimination to occur; and (3) must show that the facts raise an inference that the prosecutor excluded potential jorors solely because of their race.(37) Once a defendant makes the requisite showing, the burden shifts to the state to provide race-neutral...

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