The current state of the peremptory challenge.

• Author: Beck, Coburn R.

The peremptory challenge,(1) once defined by the U.S. Supreme Court as a challenge "exercised without a reason stated, without inquiry and without being subject to the court's control,"(2) no longer exists in the American judicial system.(3) In Batson v. Kentucky(4) and its progeny,(5) the Supreme Court ignored common sense and bastardized the English language by redefining the peremptory challenge to represent its antithesis.(6) This jurisprudence, which retains the peremptory challenge in name only, has forced trial court judges to traverse a difficult path through the complexities of equal protection claims, the uniqueness of third party standing, the dilemma of whose rights to protect, and the opaque pretext behind parties' alleged neutral use of the peremptory challenge.

These knotty concerns most recently surfaced in a split between the Fifth and Seventh Circuits.(7) The split resulted from the unconstitutional use of peremptory challenges in United States v. Boyd(8) and United States v. Huey.(9) The defendants in both cases used their peremptory challenges to strike prospective jurors solely because of the prospective jurors' race.(10) The courts differed, however, as to whether the defendants should be granted new trials due to their unconstitutional employment of the peremptory challenges.(11) This circuit split stands as a testament to the Supreme Court's misguided jurisprudence that made the long-standing peremptory challenge irrational and functionally obsolete.(12)

This Note will address the Supreme Court's whittling away of the peremptory challenge and the confusion that has resulted from its opinions. The first portion of the Note will detail the history of the peremptory challenge,(13) devoting particular attention to the Court's treatment of the peremptory, from its opinion in Swain v. Alabama,(14) to its most recent cases decided in the wake of J.E.B. v. Alabama ex rel. T.B.(15) The second part of this Note will explain the facts and holdings in United States v. Huey and United States v. Boyd and detail to what extent the cases may be factually distinguishable.(16) The Fifth and Seventh Circuits' holdings will be held as indicia of a greater confusion stemming from Supreme Court jurisprudence. This Note will then predict the probable outcome should the Supreme Court decide to resolve the issue raised by the circuit split.(17) The third part of this Note will analyze the options available to the Supreme Court in resolving the problems many critics see in the Court's current treatment of the peremptory challenge.(18) Finally, this Note will conclude by presenting the most logical, though admittedly unlikely, course for the future of the peremptory challenge.(19)

HISTORY OF THE PEREMPTORY CHALLENGE

The Peremptory Challenge v. the "For Cause" Challenge

To understand the history of the peremptory challenge, it must first be distinguished from its counterpart, the "for cause" challenge. Traditionally, the peremptory challenge permitted a party to strike a member of the venire(20) without needing to explain to the court the reasoning for the strike.(21) In contrast, the for cause challenge demands that a party give a "narrowly specified, provable and legally cognizable basis of partiality" for the strike.(22) Litigants often ground for cause challenges on a prospective juror's familial or social relationship to one of the parties, failure to meet statutory qualifications for jury duty, or other specific evidence of bias.(23)

The peremptory and for cause challenges also differ in the number allowed by the courts. A party may exercise an unlimited number of for cause challenges.(24) Peremptory challenges, however, are limited to the number specified by statute in the jurisdiction.(25) The federal courts limit a litigant to three peremptory challenges in civil cases,(26) while allowing the government six peremptory challenges and the defendant ten peremptory challenges in felony cases.(27) In misdemeanor cases, each side receives three peremptory challenges.(28) Most states have similar statutory grants of peremptory challenges.(29)

Although judges, scholars, and litigants often disagree over whether the peremptory challenge serves a worthwhile purpose in the American judicial system,(30) all seem to admit that no constitutional basis exists for the peremptory challenge. Indeed, the Court in Stilson v. Lewis(31) wrote that "[t]here is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges."(32) Unlike peremptory challenges, a trial judge cannot revoke for cause challenges because they are grounded in the Sixth Amendment's right to an impartial jury.(33) The peremptory challenge, therefore, when isolated from all of its adopted uses, is simply a tool to create an impartial jury.(34) It is for this reason that the Court has allowed trial judges to strip the parties of their peremptory challenges when the creation of an impartial jury has already been assured,(35) The peremptory challenge thus stands along side the for cause challenge to defend litigants from juror bias.

The Evolution of the Peremptory Challenge

To understand the current state of the peremptory challenge, it is necessary to unfold its long history. Few institutions of the trial court have as distinguished and time-tested a history as the peremptory challenge.(36) Scholars believe that the peremptory was born over 700 years ago.(37) The peremptory traveled with the colonists to America where it soon grew beyond its English heritage,(38) From the inception of the United States, few questioned the use of the peremptory challenge until 1965 when the Court decided Swain v. Alabama.(39)

In a six to three decision, the Court in Swain held that Alabama did not violate the defendant's equal protection rights when it employed its peremptory challenges to strike black jurors.(40) The Court arrived at this conclusion by stating:

In the quest for an impartial and qualified jury,

Negro and white, Protestant and Catholic, are alike

subject to being challenged without cause. To subject

the prosecutor's challenge n any particular case to the

demands and traditional standards of the Equal

Protection Clause would entail a radical change in the

nature and operation of the challenge. The challenge,

pro tanto, would no longer be peremptory, each

and every challenge being open to examination, either

at the time of the challenge or at a hearing

afterwards.(41)

The Court held that a defendant could successfully challenge a state's use of the peremptory challenge only by showing that the state discriminatorily excluded blacks from petit juries over a period of time.(42) A defendant's showing of such a discriminatory use of the peremptory constitutes a "prima facie case under the Fourteenth Amendment['s]"(43) Equal Protection Clause.(44) By placing this weighty burden of proof upon the defendant, the Court effectively rid itself of equal protection claims based upon the state's behavior in any one trial.

It was not until twenty years later that the Supreme Court revisited the peremptory challenge issue in its tide-turning Batson v. Kentucky(45) decision. The defendant in Batson claimed the prosecutor violated his rights under the Sixth and Fourteenth Amendments by using his peremptory challenges to strike all four black members of the venire.(46) The remaining all-white jury found the black defendant guilty.(47) The Court focused its attentions upon the defendant's equal protection claim.(48) In overruling Swain,(49) the Court found that it was not only the defendant who suffered when a court allowed race-based challenges; the excluded jurors and the community at large also felt the sting of discrimination.(50)

To detect future race-based, unconstitutional uses of the peremptory challenge, the Supreme Court created a three-part test that courts continue to use today.(51) First, the defendant must show that the circumstances surrounding a particular challenge create a prima facie case that the prosecutor challenged the potential juror on the basis of race.(52) Once the defendant establishes this prima facie case of discrimination, the burden shifts to the proponent of the peremptory challenge to provide a race-neutral reason for exercising the challenge.(53) Finally, the trial court must then determine whether the opponent of the strike has proved purposeful discrimination.(54)

In his dissent, Chief Justice Burger emphasized the deep and firmly rooted foundations of the peremptory.(55) Chief Justice Burger took pains to differentiate the case at bar from cases involving wholesale juror exclusion(56) Using a peremptory challenge to exclude individual jurors based on the facts in a particular case is vastly different from excluding an entire class of people from being eligible to be in the initial venire.(57) Justice Rehnquist echoed Chief Justice Burger's complaints, emphasizing that "there is simply nothing `unequal' about the State's using its peremptory challenges to strike blacks" because all other races and ethnic groups are subject to the same treatment.(58)

The cases following in Batson's aftermath only served to widen Batson's scope. In the 1991 case of Powers v. Ohio,(59) the Court held that Ohio violated a white defendant's rights when it exercised its peremptory challenges to exclude seven black jurors.(60) Unlike in Batson, however, the Court spent the vast majority of its opinion justifying the holding based on the wrongs suffered by the excluded jurors and not upon the rights of the criminal defendant.(61) That same year, the Court held in Edmonson v. Leesville Concrete Co.(62) that the prohibition against using race-based peremptory strikes should also apply in civil cases.(63) The following year in Georgia v. McCollum,(64) the Court extended Batson to encompass race-based peremptory challenges exercised by defendants in criminal trials.(65) The most recent extension of Batson...