By Priyal Thakkar
Right to an impartial jury is a fundamental canon of the criminal justice system in America, which makes jury selection an extremely vital process. After the voir dire, the questioning of potential jurors, each lawyer can ask the judge to dismiss a potential juror for cause if the lawyer believes them to be prejudiced. The judge makes a determination and may or may not grant the request.
Additionally, a lawyer can also use a peremptory challenge. A peremptory challenge is a jury selection tool that both parties can use to strike potential jurors without stating a reason. The concept of peremptory challenges likely originated in the Roman times when each side would choose hundred jurors and then eliminate fifty from the opposite side’s ranks, resulting in a panel of a hundred jurors. However, there is no explicit right to peremptory challenges in the United States Constitution.
Some scholars believe that peremptory challenges allow litigants to secure a fair and impartial jury, gives the parties control over the jury selection process, allows attorneys to search for biases without fear of alienating potential jurors, and serves as an insurance policy when a judge denies a for-cause challenge against a potential juror. Conversely, Carl Imlay views unrestricted peremptory challenges as “the last bastion of undisguised racial discrimination in the criminal justice system.” Peremptory strikes became the enabling tool for widespread discriminatory elimination of potential jurors. It offered prosecutors and defense attorneys the opportunity to strike potential jurors on the basis of race. However, it was not until 1980’s that peremptory challenges were examined legally.
In 1965, the Supreme Court ruled in Swain v. Alabama that peremptory challenges do not need to be justified. Twenty years later, in Batson v. Kentucky the Supreme Court outlined a three-step inquiry to address the concern of racially motivated peremptory challenges.
- Defendant must establish a prima facie case of purposeful discrimination.
- Once a prima facie case has been established, the burden shifts to the prosecution to provide a neutral, nondiscriminatory reason for the peremptory challenge.
- The judge reviews the record and determines whether the challenge is racially motivated and as such unconstitutional.
However, the bar for establishing a Batson challenge is high. To establish a prime facie case, the party making a Batson challenge must prove three things.
- That the stricken juror belongs to a protected group;
- That the opposing party used a peremptory strike against a member of that protected groups;
- And the facts and circumstances created an inference that the opposing party struck the juror because of race, gender, or national origin.
Justice Marshall’s concurrence in Batson pushes for the elimination of peremptory challenges entirely as he believed the decision in Batson would not “end the racial discrimination that peremptories inject into the jury-selection process.” First, the defendant cannot attack the discriminatory use of peremptory challenges unless the challenges are flagrant enough to establish a prima facie case. Where only one or two black jurors survive the challenges for cause, “the prosecutor need have no compunction about striking them from the jury because of their race.”
Second, when a defendant establishes a prima facie case, trial courts face the difficult burden of assessing the prosecutors’ motives. The prosecutor can easily offer “facially neutral reasons” for striking a particular juror. Easily generated explanations like juror seemed “uncommunicative,” or “never cracked a smile,” etc. have been sufficient to discharge the prosecutor’s obligation to justify. This effectively renders the protections afforded by the majority in Batson a mere illusion because trial courts are ill equipped to second-guess the reasons proffered by the prosecution. Because peremptory strikes can ordinarily be exercised for any purpose, including an irrational one, the bar for defeating a Batson challenge is extremely low.
Two significant reasons for the failure of Batson in eliminating the practice of using peremptory challenges in a discriminatory manner are the mechanism to distinguish between race-neutral and pretextual reasons for exercising a strike and its ignorance of implicit bias. The behavioral theories that undergird Batson are that “considerations of race can be purged from the jury selection process, lawyers will be aware of their motivations for striking particular jurors and will report these reasons honestly, and judges will be able to distinguish between honest and dishonest explanations.” However, these assumptions are inconsistent with advances in cognitive social psychology.
Judge Hoffman contends that the benefits of the peremptory challenge system are outweighed by the damage which that system causes to the most basic principle of an impartial jury. He argues that peremptory challenges never had any legitimate purpose, and the extraordinary conditions that gave rise to them do not exist today. He further states that peremptory challenges reflect a deep distrust of prospective jurors and are wholly inconsistent with the trust the system reposes on sitting jurors. Lastly, the challenges reflect a simplistic view of human biases. Peremptory challenges force judges and lawyers to engage in amateur anthropology. It is also futile as it disregards the fact that each juror brings with them a complex constellation of biases that cannot be set aside or surrendered to the “rational persuasion of fellow jurors.”
In a 1987 training video, an assistant district attorney in Philadelphia told new prosecutors, “When you do have a black jury, you question them at length. And on this little sheet that you have, mark something down that you can articulate later…You may want to ask more questions of those people so it gives you more ammunition to make an articulable reason as to why you are striking them, not for race.” In 1996, an Illinois appellate judge joked, “New prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations’ or ‘20 Time-Tested Race-Neutral Explanations.’” Unfortunately, his statement was not far from the truth.
Plenty prosecutors are armed with ready-made lists of “race-neutral” reasons for striking Black jurors that include tips for concealing implicit and explicit bias through trial tactics to avoid the appearance of racism.At their core, the manuals instruct prosecutors to strike jurors based on “group bias.” Group bias is “the assumption that certain jurors are biased merely because they are members of an identifiable group.” Hence, training prosecutors to rely on groups characteristics such as occupation, age, marital status, or education allows them to use those characteristics as proxies.
Given the blatant bad faith use of peremptory strikes and its impact, perhaps the only way to remedy their discriminatory use is to abolish them. Criminal defendants have the constitutional right to be tried by a jury of their peers. Prosecutor’s use of peremptory strikes is a direct attack on this right, with very grave consequences. It is a well-documented fact that all-white mock juries are more likely to convict a minority defendant than racially diverse juries. Moreover, peremptory strikes encourage lawyers to act on “hunches,” effectively taking their decisions vis-á-vis jury selection out of the realm of logical reasoning and facilitating the manifestation of biases. Abolishing peremptory strikes not only restores some semblance of order the justice system operates on, but also upholds constitutional values regarding jury selection.
 Carl H. Imlay, Federal Jury Reformation: Saving a Democratic Institution, 6 Loy. L. Rev. 247, 270 (1973).
 Batson v. Kentucky, 476 U.S. 79 (1986).
 Batson v. Kentucky, 476 U.S. 79, 102-03 (1986).
 Id. at 105.
 Id. at 106.
 Id. at 106.
 Id. at 106.
 Aliza Cover, Hybrid Jury Strikes, 52 Harv. C.R.-C.L. L. Rev. 357, 368 (2017).
 Caren Morrison, Criminal Law: Negotiating Peremptory Challenges, 104 J. Crim. L. & Criminology 1, 4 (2014).
 Morris B. Hoffman, Peremptory Challenges Should be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L. Rev. 809, 810 (1997).
 Id. at 845, 848.
 Id. at 854.
 Id. at 859.
 Id. at 864.
 Id. at 859.
 Elisabeth Semel et al., Whitewashing the Jury Box: How California Perpetuates the Discriminatory Exclusion of Black and Latinx Jurors, Berkeley Law (2020), https://www.law.berkeley.edu/experiential/clinics/death-penalty-clinic/projects-and-cases/whitewashing-the-jury-box-how-california-perpetuates-the-discriminatory-exclusion-of-black-and-latinx-jurors/.