A jury of one's godless peers.

Author:Miller, Robert T.

Reading FIRST THINGS may disqualify you from sitting on a jury, at least if a lawyer decides that such reading shows that you are too involved in the practice of your religion. Just ask the United States Court of Appeals for the Third Circuit, the federal appellate court with jurisdiction for Pennsylvania, New Jersey, and Delaware.

First, some facts. As anyone who has been through the process knows, selecting a jury is a complex business. The court starts with a large pool of prospective jurors and the judge and lawyers for the parties interview them, rejecting some and choosing others until they have a full panel, usually twelve. If, in the course of this process, a lawyer thinks that there is a good reason to exclude a prospective juror (e.g., that the juror would favor one side or the other), the lawyer may object to this person "for cause"; if the judge agrees, the juror will be excused. In addition, each side in the case is entitled to a limited number of "peremptory challenges" (the exact number of these depends on the nature and complexity of the case), which allow the lawyers to strike jurors without having to state any reason whatsoever. Writing in 1769, William Blackstone described this ancient practice of the common law as being typical of "that tenderness and humanity for which our English laws are justly famous." According to Blackstone, we must all be "sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another," and so a man on trial for his life should be given the chance to keep off the jury someone "against whom he has conceived a prejudice, even without being able to assign a reason for his dislike."

So the practice continued in the United States--until 1986, when the United States Supreme Court decided, in Batson v. Kentucky, that litigants should not be permitted to exercise peremptory challenges based on a juror's race. Such discrimination, the Court said, would violate the equal protection clause of the Fourteenth Amendment. Given the history of racism in the United States, and especially because in some Southern states litigants might collude to exclude blacks from juries entirely, there was something to be said for Batson. But the Supreme Court did not stop there. In J.E.B. v. Alabama (1994), the Court decided that sex, too, would be an impermissible basis for the use of peremptory challenges. There was much less justification for this decision...

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