Preventing Discrimination in Jury Selection

• Publication year: 2020
• Author: By William Schlaerth

Preventing Discrimination in Jury Selection

By William Schlaerth

William Schlaerth is a Supervising Deputy District Attorney for Kern County, currently assigned to the Prisons Unit. Mr. Schlaerth has 17 years of experience as a prosecutor including 75 trials, 13 of which were murders. He is a graduate of Loyola Law School and holds a bachelor's degree in history from UCLA.

An essential prerequisite to an impartial jury is that it be drawn from a representative cross-section of the community. Courts at the federal and state level have been grappling with this issue for decades in cases where prospective jurors who were members of a minority group (typically based on race or gender) were removed from venires by peremptory challenges. The law has evolved from allowing attorneys to make peremptory challenges without showing a reason (see Swain v. Alabama (1964) 380 U.S. 202) to adopting a methodology to test whether members of cognizable groups were improperly removed from juries. The process began with two cases.

In the early 1970s, a jury in Los Angeles composed entirely of White jurors, convicted James Wheeler and Robert Willis (both African Americans) of murder committed in the course of a robbery. The venire contained a number of potential jurors who were African American, each of whom was struck by the prosecution's use of peremptory challenges after he had passed for cause. The Supreme Court reversed the conviction finding that "the use of peremptory challenges to remove prospective jurors on the sole ground of group bias violates the right to a trial by jury drawn from a representative cross-section of the community." (People v. Wheeler (1978) 22 Cal.3d 258.)

In 1982, a jury in Louisville, Kentucky, composed entirely of White jurors, convicted James Batson, an African American, of burglary and receipt of stolen goods. During jury selection, the prosecutor exercised peremptory challenges against the four potential African American jurors in the venire. The U.S. Supreme Court reversed the conviction finding that "the Equal Protection Clause (of the Fourteenth Amendment) forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant." (Batson v. Kentucky (1986) 476 U.S. 79.)

These cases preclude the consideration of race in the selection of a potential juror because such considerations violate the Sixth Amendment right to an impartial jury, the Fourteenth Amendment right to Equal Protection, and the right to a trial by jury guaranteed by the California Constitution. Race is no longer the sole basis of a protected cognizable group. Courts have identified not only African Americans (People v. Gray (2001) 87 Cal. App.4th 781), Hispanics...