The Woman Juror: How we got here and the challenges we still face

 As a practice deriving from English common law, women have historically been excluded from serving on juries.  Blackstone's famous explanation for this prohibition was that the female was excluded "propter defectum sexus" - which means "on account of a defect of sex."  This is largely based on the belief that a woman's "sphere" was in the home.  Another explanation of why women were left off the jury is the idea that women were not as "rational" as men - meaning they let their emotions get the best of them.  Despite the fact that the Civil Rights Act of 1957 gave women the right to serve on federal juries, this practice was implemented throughout the United States until 1973 - when Alabama was the last state to pass legislation.  In Taylor v. Louisiana, the United States Supreme Court stated that "the Sixth Amendment's fair cross-section requirement mandated that states draw juries from venires in which women were not excluded as a class."  The court went on to explain that "community participation in the administration of the criminal law... is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system."

Original drawing for "Studies in expression. When women are jurors" cartoon by Charles Dana Gibson. First published 23 October 1902 in Life on pages 350–351.

While the Supreme Court has intervened and legislation has been passed (on a federal and state level), women are still being discriminated against during voir dire as a result of peremptory challenges.  Although the number differs between jurisdictions, attorneys have a certain number of peremptory challenges during voir dire.  Peremptory challenges differ from "for cause" challenges in that the attorney does not have to provide a reason for striking the juror.  However, if a reason is needed, it must be for a reason other than gender (or race) - which is often another characteristic of the juror and is often pretext.  There is much evidence of abuse of this device to discriminate based on race and gender.  The Supreme Court held in Batson v. Kentucky that the Equal Protection Clause of the Fourteenth Amendment governs the exercise of peremptory challenges by a prosecutor in a criminal trial.  Almost a decade later, the Supreme Couty decided to combat gender discrimination regarding peremptory challenges in the case J.E.B. v. Alabama ex rel. T. B.  In this case, the Supreme Court held that peremptory strikes based solely on gender violates the Equal Protection Clause.  Justice Blackmun stated "gender simply may not serve as a proxy for bias."  A Batson challenge can be brought if an attorney is suspected of using peremptory challenges to strike potential jurors based on their race or gender.  However the burden is largely on the proponent and these types of challenges are difficult to win. 

A diverse jury is an essential element to ensure a fair trial outcome.  Gender is only one component that makes up an individual and therefore stereotyping based on this characteristic often leads to inaccurate results.  According to one study, female jurors are more likely than male jurors to convict the defendant in a rape case.  However according to a different study, female jurors can be more skeptical of the victim than male jurors because of the shared life experiences.  Therefore, attorneys should be cautious of striking a potential juror solely based on her gender, and more concerned with asking her individualized questions during voir dire. If voir dire is appropriately conducted, reliance on stereotypes is unnecessary and illogical, because the attorney can strike potential jurors for what they actually know about the individual, instead of striking jurors for what they assume they know about the individual.