Posted on: 3/14/2012
Clair F. Rush, Rush & Sabbatino
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Peremptory challenges are sacrosanct among trial attorneys because they permit a potential juror to be excused "without a reason stated, without inquiry and without being subject to the Court's control." Swain v. Alabama, 380 U.S. 202, 219 (1965). Ask any trial lawyer and he or she will tell you that these challenges are necessary to protect litigants from covert extremist jurors.
Peremptory challenges can and are, however, often times improperly invoked to excuse jurors for discriminatory reasons. No better tool exists for excusing a whole class of persons from jury duty than the peremptory challenge. When it comes to jury selection we lawyers can be a lazy bunch content to bypass the hard work of assessing a juror's attitudes, beliefs and life experiences in favor of relying upon legal "lore" about what type of stereotypical juror will or will not be "good" for our client in a particular case.
In Batson v. Kentucky, 476 US 79 (1986), a divided United States Supreme Court sought to put an end to this type of profiling. The Batson Court held that the Equal Protection Clause of the Fourteenth Amendment forbids prosecutors from challenging potential jurors on the assumption that members of one particular racial group will be unable to impartially consider the State's case against another member of that group.
In a seven to two decision authored by Justice Louis Powell, Jr., the Court articulated a three prong test for identifying a racially discriminatory peremptory challenge. First the proponent of the objection must establish a prima facie case of purposeful racial discrimination. Next, the proponent of the strike must offer a neutral explanation for the challenge. Finally, the proponent of the challenge must then show that the "neutral explanation" is pretextual and that the real reason for the strike was the challenged juror's race. The burden of proof in any challenge rests with the party alleging the intentional discrimination.
In the years since it decided Batson the US Supreme Court has issued a steady stream of decisions that have afforded protection to an ever widening pool of litigants and potential jurors while refining the manner in which Batson challenges are to be evaluated.
The US Supreme Court's Expansion of Batson
In Powers v. Ohio, 499 U. S. 100 (1991), the Supreme Court ruled that a prosecutor's use of peremptory challenges to excuse black jurors violated the equal protection rights of both the white defendant and the potential black jurors and that a defendant need not be of the same race as the potential jurors in order to raise a successful Batson challenge. The Supreme Court thereafter held in Georgia v. McCollum, 505 U.S. 42 (1992), that Batson prohibits criminal defense attorneys as well as prosecutors from exercising racially motivated peremptory challenges.
In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court ruled that private litigants in a personal injury lawsuit are also prohibited from excluding a potential juror solely on the grounds of race. Thereafter in J.E.B. v. Alabama, 511 U.S.127 (1994) the Court further expanded Batson to forbid discrimination based on gender. Finally, in Hernandez v. New York, 500 U.S. 352 (1991) and United States v. Martinez- Salazar, 528 US 304 ( 2000) the Court strongly implied in dicta that counsel may not excuse potential jurors on the basis of their national origin.
The Evolution of the Three Step Batson Analysis
Establishing a Prima Facie Case
In order to establish a prima facie case of discrimination the party asserting a Batson challenge must marshal the facts so as " to permit the trial judge to draw an inference that discrimination has occurred." Johnson v. California, 545 US 162 , 170 (2005). The proponent of a Batson challenge must make a record of the racial, ethnic or gender composition of the panel from which the jury was selected, the number and nature of the strikes exercised, the strike percentage of both parties and the panel percentages.
Unfortunately, there are no bright line tests for determining what types of evidence will establish a prima facie case of discrimination. Facts that lawyers commonly point to include: (1) a disproportionate use of challenges against members of a particular group; (2) the use of peremptory challenges to severely reduce the representation of members of a cognizable group in a venire panel where they already constitute a low venire percentage; and (3) the use of peremptory challenges to reduce the number of members of a cognizable group on a jury panel where the group constitutes a majority on the jury panel.
A Neutral Explanation
Once the Court determines that a prima facie case of discrimination has been established, the party making the strike is required to come forward and present a neutral explanation for the challenge. The explanation offered by the proponent of the strike need not be persuasive or even plausible, rather it must be facially neutral. See, Purkett v. Elem, 514 U.S. 765 (1995). Examples of facially neutral reasons for a strike include the prospective juror's age, occupation, educational background, prior litigation experience, family circumstances, demeanor, and professed attitudes, beliefs and life experiences.
Proving Discrimination and the Pretextual Nature of the Explanation
After the proponent of the strike offers a neutral explanation, the party advancing the Batson challenge has the burden of establishing that the reason or reasons proffered are pretextual. A Batson objection based on numerical arguments alone will not establish a prima facie case of discrimination. Such a challenge must be supported by factual assertions or comparisons that would raise an inference that discrimination has occurred. In this regard, the Courts have considered : (1) the failure to challenge similarly situated jurors who do not belong to the cognizable group; (2) the absence of any apparent relationship between an issue in the case and the challenged juror's background ; (3) differences in the manner in which jurors who are members of the cognizable group are questioned ; and (4) whether the challenged jurors are heterogeneous having in common only their membership in the cognizable group. See generally, Snyder v. Louisiana, 552 U.S. 472 (2008) and Miller-El v. Dretke,545 U.S.231 (2005).
A party asserting a Batson challenge should be prepared to present fact based arguments that demonstrate that his or her adversary has treated similarly situated jurors differently, when exercising strikes. Counsel should explore whether the reasons given for the contested strike fit together properly with the reasons given for the other strikes. Differences in the length and quality of questioning of similarly situated but diverse jurors often times establish the pretextual nature of the explanation. Where the reason advanced for the challenge is amorphous i.e. " a gut feeling," lack of eye contact, immaturity, etc. counsel asserting the challenge should argue that these reasons are highly suggestive of an improper motive and should be deemed patently insufficient.
Tips for Making and Defending Batson Challenges
When confronted with a case in which your adversary utilizes peremptory challenges in a discriminatory manner, you should be prepared to make a full and complete record of the challenge. In such cases counsel should:
1. MAINTAIN COPIOUS AND ACCURATE NOTES Make sure that you have an accurate breakdown of the racial/gender/ethnic composition of the panel. Document the ages, family situations, language fluency and demeanor of all jurors so that you can create a record demonstrating that the proffered reasons for a peremptory challenge are pretextual given the existence of similarly situated jurors on the jury panel.
2. DEMAND A JUDGE In those jurisdictions where jury selection is not conducted before a judge demand that a judge preside over the proceedings. If there is ever a time to have a judge involved in jury selection, this is when it is most appropriate. Do not agree to accept a ruling on a Batson challenge from a law secretary, court attorney or judicial hearing officer. Their "decisions" are not subject to appellate review.
3. DEMAND A COURT REPORTER It is essential when making a Batson challenge that counsel preserve the record for appellate review. Demand a court stenographer. Each of the potential jurors should be identified by name, and a statement should be made regarding those aspects of their backgrounds that impact the Batson challenge you are claiming. When developing the record make sure to state the breakdown of the composition of the panel and the number and the nature of the strikes used by both parties.
4. MAKE YOUR CHALLENGE PROMPTLY A Batson motion should be made at or about the time that the discriminatory challenge is made. It cannot be asserted after the jury is empaneled. Request the Court to instruct the jury clerk not to release jurors who have been previously excused for potentially discriminatory reasons. If the Court agrees with your argument that the juror was improperly excused, the relief is to seat the contested juror. This clearly can not be done if the juror has already been excused from jury service. This procedure ensures that if your Batson challenge is successful, the challenged juror will be seated on your jury.
5. CONTINUE TO PRESS YOUR CLAIM Once a Batson challenge is made counsel should continue to press the claim through the remainder of the voir dire process. The failure to renew a Batson motion in response to new facts that demonstrate an improper use of a peremptory challenge may be construed to constitute a waiver of the objection
6. DON'T ACCEPT THE JURY If your Batson challenge is denied, advise the Court that the jury will not be "satisfactory" to your client. Request the opportunity to make this objection on the record , outside the presence of the jury, prior to the formal swearing in of the jury panel.
When defending against a Batson challenge attorneys should be guided by the following principles:
1. DON'T DO IT Demographics have historically been shown to be poor predictors of jury behavior. In any given jury panel, one can find individuals of similar age, race, gender and ethnicity, whose opinions on issues will vary wildly. Exercising peremptory challenges on the basis of specious profiling, short changes your client because the stereotype is ultimately unreliable.
2. MASTER THE ART OF JUROR DESELECTION The most critical skill in jury selection is learning how to eliminate for cause jurors who are leaning against you from the start. In order to identify such jurors it is essential to create a climate where jurors feel free to discuss their attitudes and predispositions without fear of judgment or ridicule. One of the most effective ways of creating such an atmosphere is to share with the jurors some belief or attitude that you harbor that would make it difficult for you to sit as a juror in a particular case. Attorneys should use open ended questions to probe a juror's attitudes, beliefs and life experiences. By focusing on such neutral issues, a skilled lawyer should be able to uncover biases and prejudices that would prevent that juror from sitting on the jury. By eliciting this information you can lay the ground work for allowing the juror to talk him or herself off of the jury on the grounds that he or she cannot provide an unqualified assurance of impartiality. Should the juror respond that he or she nonetheless believes that he or she can be fair and impartial, the attorney prospectively defending the Batson charge, must request the Judge to excuse the juror for cause. Should the court refuse to excuse the juror, a peremptory challenge can be made and justified for the reasons set forth in the initial challenge for cause.
3. REQUEST MORE TIME FOR VOIR DIRE When confronted with a case that may have Batson issues, request more time to question the potential jurors.
4. DON'T BE BULLIED Some attorneys in an attempt to gain an unfair litigation advantage will threaten to make a Batson challenge to deter you from excusing jurors who they perceive to be receptive to their position. Lawyers threaten to make Batson challenges because they have a chilling effect. Many attorneys become flummoxed in their voir dire questioning and exercising of strikes after threatened with a Batson challenge. Keep your eyes on the ball; continue to explore the attitudes, beliefs and life experiences of your jurors so that you can identify and challenge those jurors who will not be able to fairly and justly hear your case.