Challenging the Challenge: A Look at Peremptory Strikes

Arguably, all people have felt excluded from something at one point or another.  Perhaps you look at your social media and see a group of your friends all spending time together without you.  Perhaps you were denied a promotion you could have sworn you earned.  The feeling is unpleasant.  Armed with this feeling, and possibly a bit of anger, you may choose to confront those that would seek to exclude you, like that friend or supervisor.  But the answer that you get may leave you questioning if the stated reason for the exclusion was the true reason.  In a social context, you can choose to brush this feeling off, or push back at the risk of burning a bridge.  In the legal context, there might be another option: challenge the challenge.

The juror challenge is a legal mechanism used in selection of a trial jury.  One type of challenge is the challenge for cause, where an attorney seeks to disqualify a potential juror for a given reason such as bias, prejudice, or prior knowledge that would prevent impartial evaluation of evidence presented throughout the course of the trial.  A second type of challenge, and the one at the center of today's blog post, is the peremptory challenge.

Peremptory challenges are limited in number, and are intended to be a "no questions asked" challenge, where a juror is excluded without the need for the attorney who used the challenge to give a reason or explanation.  But just like your intuition may send signals of doubt when you are excluded, the opposing attorneys' intuition may lead them to the conclusion that the peremptory challenge was used to exclude someone for an "off-limits" reason.

Peremptory challenges are considered invalid when used to exclude a juror based on their race, national origin, or sex.  Some jurisdictions also disallow strikes based on ethnicity, sexual orientation, and religion.  Those faced with what they think may be an invalid challenge can choose to essentially challenge the challenge by way of a Batson challenge.  So, how does this work?

BATSON 101

1. Make a motion: The doubtful attorney makes a motion to the court for a Batson challenge.  There is no need for them to wait until the entire jury is empaneled; as long as the attorney feels they can establish an inference of discriminatory intent, they can raise their doubts about their opponent's challenge.
2. Make your case: The attorney's job now is to make a prima facie case of purposeful discrimination.  This means first showing that the juror is a member of a protected, cognizable group.  For example, let's say this Batson challenge-savvy attorney is a criminal defense attorney, and the prosecutor used all their peremptory challenges to remove female jurors; women are a protected, cognizable group based on their gender.  Now, the defense attorney must show that this fact, along with any other circumstances, creates an inference that the prosecutor used their strikes exactly for that reason--because the jurors were female.  In our example, striking all the women is a pattern that works in the defense attorney's favor when making his or her argument to the judge.  The defense attorney also should note any particularly harsh or targeted questions used against the females in the prosecutor's voir dire, or perhaps the failure to ask females any questions at all.  In some places, the defense attorney may also show that the prosecutor has a historical bad habit of striking women jurors. 
3. Listen: Now the prosecutor must defend their strike by giving any other reason for striking the juror.  What gender-neutral explanation is there for the strikes?
4. Get a ruling: Ultimately, it is on the defense attorney to prove discriminatory intent.  Based on the arguments, if the judge feels that they have done so, the Batson challenge should be granted.  If the judge feels they have not, then the Batson challenge should be denied.  Note that it is also very important for the defense counsel to preserve their record, regardless of the judge's ruling, as improperly denied Batson challenges are granted automatic reversal on appeal.
5. Re-seat the struck juror: If the attorney's Batson challenge is successful, the remedy in many jurisdictions is to have the juror that was discriminated against seated once more.

The process now being outlined, you might ask, why does this matter?  We want (and the Constitution demands) juries that are impartial.  Impartial juries are necessary for both getting a fair picture of the community represented in the jury box and just fairly deciding the case itself, without biases.  The goal of a Baston challenge is admirable, clearly.  Unsurprisingly, however, no legal tool is without its flaws.

CHALLENGES WITH BATSON CHALLENGES

• The notorious pretext: It is easy enough for an attorney to come up with a race-neutral, origin-neutral, or gender-neutral explanation for their peremptory challenge, even if that explanation is untrue.  It can be difficult to draw the line between legitimate explanations and explanations that are mere pretexts for discrimination.  This reduces the number and efficacy of challenges to begin with.
• Not everyone is protected: As of now, jurors can still (in theory) be discriminated against based on some innate characteristics, such as physical disability.
• The law is not uniform: Not every jurisdiction has the same rules concerning Batson challenges.  Attorneys should do their best to be informed on their jurisdiction's case law.
• Misuse: As noted by one Supreme Court Justice, there is some risk in Batson challenges (or lack thereof) being examined at a much later date.  Because discrimination of jurors based on a protected status or improper denial of a Batson challenge are grounds for a conviction to be overturned, impartiality in jury selection may give rise to a host of new appeals.  A review of a voir dire from twenty years ago for appeals purposes would surely not be an easy task.
• Uncertainty: Legal scholars have a hard time analyzing use of peremptory challenges.  Quantifiable data is hard to come by.  The call on whether to motion for or grant a Batson challenge can be equally if not more difficult for attorneys and judges.

With this knowledge in mind, it might come as no surprise that the same Justice referenced above just broke a three-year silence to comment on Batson challenges.  So, if you must, go forth and challenge the challenge!

If you would like to share your thoughts on Batson challenges or their difficulties, post a comment below.

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