Should Attorneys Use Peremptory Challenges to Address Anti-LGBT Bias?

Introduction 

Should attorneys use their precious and often limited peremptory challenges to strike potential jurors whom they perceive to be bias against the LGBTQ Community? Biases against the lesbian, gay, bisexual, transgender, and questioning (LGBTQ) community can influence jurors' decisions and lead to impartial proceedings. 

Defintion 

A Peremptory Challenge - "is one of a limited number of special jury challenges given to each party before trial. A peremptory challenge results in the exclusion of a potential juror without the need for any reason or explanation - unless the opposing party presents a prima facie argument that this challenge was used to discriminate on the basis of race, ethnicity, or sex."

A Batson Challenge - "is an objection to the validity of a peremptory challenge, on grounds that the other party used it to exclude a potential juror based on race, ethnicity, or sex. The result of a Batson challenge may be a new trial." See Batson v. Kentucky (Batson v. Kentucky is the landmark Supreme Court case for prohibiting peremptory strikes on the basis of race).


The Statistics

In order to determine whether an attorney should consider removing a potential juror for anti-LGBTQ sentiments, it is important to understand the statistics. From 2002-2008, Mattson & Sherrod (a jury research firm) assembled data from over 100 mock trials and responses from over 7,800 mock jurors studying potential jurors attitudes towards homosexuality. The results:

• Approximately 45% of people think that homosexuality is not an acceptable lifestyle. 
• Approximately 40% of people believe that gays and lesbians could change their sexual orientation and become heterosexual if they really wanted to. 
• Approximately 33% of people think that sexual orientation should not be a civil right that is protected by the government. 

With statistics such as these, peremptory challenges may be a necessary trial tactic to remove anti-LGBTQ bias from the trial proceedings. 

Case Example 

The 11th Circuit U.S. Court of Appeals of Florida remanded a case for new trial because the Federal District Court judge failed to voir dire potential jurors about same sex prejudices. 

The Court's decision states: "The district court here asked the jurors multiple questions about any biases or prejudices they might have against law enforcement. But the district court refused to ask any questions at all about prejudice on the basis of sexual orientation. Therefore, we have no way to discern whether the jury was biased against [the plaintiff] for that reason." 

Challenging Peremptory Strikes Based on Sexual Orientation

Currently, the Federal Circuit Courts are split regarding the applicability of Batson Challenges to peremptory strikes based on sexual orientation.

• The Ninth Circuit in SmithKline Beecham Corporation v. Abbott Laboratories held:
• "[P]eremptory strikes used to discriminate on the basis of sexual orientation may be challenged under Batson." 

• The Eighth Circuit, in United States v. Ehrmann  and the Eleventh Circuit, in Sneed v. Florida Department of Corrections held:
• "[E]xpressed serious doubt as to whether Batson’s scope extends beyond race and gender."

Thoughts

It will be interesting to see how this split in the federal courts will be addressed. Will the Supreme Court respond by hearing a case on peremptory strikes based on sexual orientation? With more and more Americans identifying as LGBTQ, striking venire members on the basis of sexual orientation is a pressing matter that must be addressed by the highest court in the land. 

Read more here: https://www.miamiherald.com/news/local/community/florida-keys/article186482273.html#storylink=cpy