Vol. 7, No. 4, Pg. 14. Gender-Base Peremptory Strikes: A Post J.E.B. Analysis.

• Author: By the Hon. Cameron McGowan Currie and Aleta M. Pillick

South Carolina Lawyer

1996.

Vol. 7, No. 4, Pg. 14.

Gender-Base Peremptory Strikes: A Post J.E.B. Analysis

14GENDER-BASE PEREMPTORY STRIKES: A Post J.E.B. AnalysisBy the Hon. Cameron McGowan Currie and Aleta M. PillickFolklore and stereotypes often guide jury selection. Strategies are driven by a belief that male and female jurors reach different results. These attitudes persist at a time when the U.S. Supreme Court has been promoting the cross-sectional jury ideal, Taylor v. Louisiana, 419 U.S. 522 (1975), prohibiting the use of peremptory strikes in discriminatory fashion, Batson v. Kentucky, 476 U.S. 79 (1986), and fashioning a separate Fourteenth Amendment equal protection right of jurors to serve.

In J.E.B. v. Alabama, 114 S.Ct. 1419 (1994), the Supreme Court, expanding Batson v. Kentucky, 476 U.S. 79 (1986), held that the equal protection clause of the Fourteenth Amendment bars gender-based discrimination in jury selection. This rule applies to all parties in civil and criminal litigation and may be raised by any party on behalf of an excluded juror. Because gender affects every person in the population, J.E.B. has potentially broader implications than the Court's prior decisions based on race, Batson,476 U.S. 79, and ethnicity, Hernandez v. New York, 500 U.S. 352 (1991).

GENDER DISCRIMINATION AGAINST FEMALE JURORS

Stereotypes. A stereotype is a set of biased generalizations about a group or category of people that is unfavorable, exaggerated and oversimplified. It emphasizes negative characteristics of the stereotyped group and is based on the conclusion that group members hold preconceived beliefs that are often

15emotionally toned and not susceptible of modification through empirical evidence.

Juror selection manuals and lawyer folklore perpetuate stereotypes about women, insisting that women have a tendency to be emotional, submissive, envious and passive. In a 1994 interview, the New York Times reported the following beliefs of leading trial lawyers:

* women are more compassionate than men in most criminal cases but can be ruthless in sex crimes or sexual harassment cases;

* men tend to be harder on defendants;

* heterosexual men tend to respond negatively to gay men;

* male jurors are preferred in cases involving complicated financial dealings or when a conviction might lead to the death penalty or a long prison term;

* female jurors are preferred in facial scar cases because "they understand and appreciate the damage done by a scar."

Although jury selection consultants caution against stereotyping jurors on the sole basis of demographics, gender-based generalizations have a stubborn vitality among lawyers.

Overt Discrimination Recognized in the Law. At common law, women were disqualified from jury service "propter defect= sexus" or on account of the defect of sex. In the United States, it was not until the 1940s that a majority of states opened jury eligibility to women (South Carolina did not seat female jurors until 1967). In an exercise of its supervisory power over federal courts, the Supreme Court bolstered female

16 participation in Ballard v. United States, 329 U.S. 187, 193 (1946), in which it concluded federal courts could not intentionally and systematically exclude women from jury service in states in which they were eligible for service. Justice Douglas recognized the unique contribution of females to the process:

The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men . . . .Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not in a given case make an iota of difference. Yet a flavor, a distinct quality is lost if either sex is excluded.

Id. at 193.

In 1957 Congress abandoned the rule allowing state law to confer federal juror status and authorized women to sit on federal juries in all federal courts, Civil Rights Act of 1957, 28 U.S.C. § 1861. In Taylor v. Louisiana, 419 U.S. 522, 537 (1975), the Supreme Court ruled that women could neither be excluded from juries nor given automatic exemptions based on their sex. Defendants could raise this challenge even if they were not members of the excluded class, Id. at 526.

As in Ballard, the Court in Taylor grounded its decision on the defendant's Sixth Amendment right to a fair cross-section in the venire. The Supreme Court in Duren v. Missouri, 439 U.S. 357 (1979), further defined the fair cross-section requirement of Taylor and distinguished Fourteenth Amendment equal protection challenges from Sixth Amendment fair cross-section challenges.

As automatic exemptions and other barriers to female participation were dismantled, women began to comprise a significant portion of the venire. Gender discrimination in jury selection shifted from the venire to the petit jury and the use of peremptory challenges.

The vehicle by which most discrimination in petit jury seating has been accomplished is the peremptory strike. Peremptory strikes became part of the English common law in the thirteenth century but were never recognized in civil cases and were rarely used in criminal cases.

In the United States, however, peremptory challenges became commonplace in both criminal and civil suits. A widespread pattern of striking black jurors emerged in cases involving black criminal defendants, prosecutors exercised peremptory strikes...