chevron-down Created with Sketch Beta.

Litigation News

Winter 2022, Vol. 47, No. 2

Will Striking Peremptory Challenges Remove Bias in Juries?

Kelso Lorne St. Jacques Anderson


  • Changes in the rules regarding jury selection are raising questions about the propriety of peremptory challenges nationwide. 
  • Broadening the scope of an objection or eliminating such strikes as to race or sexual orientation may not lead to an impartial jury.
  • The U.S. Supreme Court established the standard for a prima facie showing of discriminatory use of peremptory challenges in the 1986 landmark case Batson v. Kentucky.
Will Striking Peremptory Challenges Remove Bias in Juries?
skynesher via Getty Images

Jump to:

Changes in the rules regarding jury selection are raising questions about the propriety of peremptory challenges nationwide. In one development, the Massachusetts Supreme Judicial Court held that striking a juror based on his or her sexual orientation is constitutionally prohibited. The ruling has expanded the reach of the 35-year-old U.S. Supreme Court case Batson v. Kentucky, which sets forth the standard for a prima facie showing of discriminatory use of peremptory challenges in jury selection. In another decision, the Arizona Supreme Court ordered that peremptory challenges be eliminated altogether. ABA Litigation Section leaders are divided as to whether peremptory challenges remain necessary to empanel an impartial jury of one’s peers, or whether they may reinforce stereotypes about a person’s race or sexual orientation.

The Original Framework: Batson v. Kentucky

The U.S. Supreme Court established the standard for a prima facie showing of discriminatory use of peremptory challenges in the 1986 landmark case Batson v. Kentucky, in which an all-white jury tried and convicted a black defendant of burglary and receipt of stolen property. The prosecution had used its peremptory challenges to strike all four black members of the venire. The Court held that the lower court’s seating of an all-white jury violated the defendant’s Sixth Amendment right to a jury of his peers and Fourteenth Amendment Equal Protection right. While a defendant is not entitled to have a jury completely or partially composed of people of his or her own race, the Court held, the prosecution cannot use its peremptory strikes to remove jurors based on race.

Evaluating Race-Based Objections: Commonwealth v. Carter

Massachusetts’s highest court recently built on Batson by clarifying how discriminatory purpose may be proven—or not—in this context. In Commonwealth v. Carter, following two mistrials, a jury convicted two black defendants of murder. Both defendants were in their 20s. One was male, the other female. On appeal, the defendants alleged that the trial court had erred in allowing the prosecution’s peremptory challenges of five jurors, four of whom were black, despite the defendants’ objections.

At trial, the prosecution had exercised 14 peremptory challenges, including 3 to strike black males, before the defendants objected to a challenge to a black female juror. The trial judge concluded that, since the prosecution had already challenged white female jurors, and two black females were already seated on the jury, the defendants had not established a prima facie case of discrimination as to the black female.

The defendants also disputed the prosecution’s peremptory challenge to a second black female. At that point, the prosecution had used 4 of its 17 peremptory challenges to strike black jurors. The trial judge noted that 5 of the 10 selected jurors were black. Therefore, the judge concluded, the defendants had not made a prima facie showing of discrimination as to the prosecution’s peremptory challenge of the second black female.

As to the third black juror stricken by the prosecution—a male—the defendants objected on the grounds that that juror was one of a few on the panel who could qualify as a “peer” of the defendants, since that juror was in his 20s like the defendants and could probably relate to their life experiences more so than the black jurors seated then, who were all in their 50s. The trial judge was unpersuaded and found that 6 of the 12 then-seated jurors were black and that peremptory challenge objections do not extend to the age of a juror. Further, the trial judge noted, four of the seated white jurors were in their 20s.

Finally, the defendants objected to the prosecutor’s peremptory strike of a fourth juror, who was a black female. The trial judge did not question dismissal of this juror either, noting that 5 of the 14 seated jurors at that time were black.

Consideration of “All Relevant Circumstances”

On appeal, the Massachusetts high court examined the burden-shifting approach in peremptory challenges at both the federal and state levels. Quoting Commonwealth v. Henderson, it explained: “[T]he burden is on the objecting party to establish a ‘prima facie showing of impropriety.’” A single objection to a peremptory challenge may be enough to establish a prima facie case.

Once a litigant has established a prima facie showing of discriminatory purpose, the burden shifts to the challenging party to articulate a race-neutral reason for attempting to strike the juror, according to the court. A judge must then determine whether the proffered race-neutral reason for striking the juror is “adequate” or “genuine.” Citing Batson, the court noted that a judge must consider “all relevant circumstances” to determine whether an opponent of a peremptory strike has satisfied his or her prima facie burden of establishing discriminatory purpose for the strike. No “undue weight” should be placed on the racial composition of the jury as proof that no discriminatory purpose exists, said the court, since that “would send the unmistakable message that a prosecutor can get away with discriminating against some African Americans.”

However, quoting its own precedent in Commonwealth v. Robertson, the Carter court noted that it “may consider the absence of a neutral reason” when reviewing the trial record to determine the propriety of an exercise of a peremptory strike.

The supreme court concluded that the lower court had erred in focusing heavily on the fact that a certain number of black jurors were already seated in its evaluation of the peremptory strikes of the four black jurors. But it was ultimately the third black juror that triggered reversal of the defendants’ convictions. According to the court, that juror “did not give any answers during voir dire to raise any concerns,” yet “the judge did not require the prosecutor to give a race-neutral reason for his peremptory challenge.” Since there was no adequate race-neutral reason in the record for the strike of this juror over the defendants’ objection, the Carter court concluded the defendants had made a prima facie showing of race discrimination, which the prosecution failed to rebut.

Extending Batson to Sexual Orientation

Revisiting Commonwealth v. Smith, in which a defendant was unsuccessful in establishing a factual record sufficient to challenge the strike of a transgender or homosexual juror, the Carter court announced that sexual orientation is protected under Batson and under its own analogous precedent, Commonwealth v. Soares, in addition to race.

In Carter, the prosecution struck a juror who referenced a “domestic partner.” The defendants objected on the basis that the juror “may be considered gay.” Noting that the phrase “domestic partner” may refer to a heterosexual or homosexual person, the trial judge chose not to consider the defendants’ objection.

Citing Soares and J.E.B. v. Alabama ex.rel. T.B.—the U.S. Supreme Court precedent that extended Batson to peremptory challenges based on gender—the Carter court held that peremptory challenges based on a prospective juror’s sexual orientation are constitutionally prohibited. Even so, the court concluded there were “insufficient facts in the record” to support the defendants’ view that the prosecution’s strike of the fifth juror was based on her sexual orientation.

Potential Effects of Batson Expansion

Carter is not the first court to apply Batson in the context of sexual orientation, according to J. Dalton Courson, New Orleans, LA, cochair of the Litigation Section’s Access to Justice Committee. Citing SmithKline Beecham Corporation v. Abbott Laboratories, in which the U.S. Court of Appeals for the Ninth Circuit extended Batson to sexual orientation discrimination, Courson says he is optimistic that still other courts will become more attuned to such discrimination. “As time progresses, I think we will see more courts prohibit the striking of jurors on the basis of perceived sexual orientation or gender identity,” Courson surmises.

Yet another Section leader expressed measured optimism about the utility of Batson in preventing various discriminatory uses of peremptory challenges. “I hope that the change [extending Batson to sexual orientation discrimination] will lead to greater diversity on juries,” offers Cassandra B. Robertson, Cleveland, OH, chair of the Section’s Appellate Subcommittee of the Civil Rights Litigation Committee.

Robertson believes, however, that Carter will not make much impact on how peremptory challenges are exercised. “For example, even though a lawyer couldn’t strike someone based on their sexual orientation, they could still presumably strike someone based on political views or occupation,” she says. “This is essentially the weakness underlying the peremptory strike system—there is usually a non-discriminatory basis that can support striking the same potential juror,” Robertson adds.

Practical Concerns

The Batson expansion raises additional concerns regarding application of the case in this new context. “Batson was one step in seeking to eliminate the practice of peremptorily challenging prospective jurors based on their status as a member of a protected class, but there were problems in the application of Batson over time, which created challenges for practitioners as they tried to thread the needle created by an endless stream of Batson decisions from various state and federal courts, often with inconsistent reasoning and results,” explains John P. Hutchins, Atlanta, GA, cochair of the Section’s Trial Practice Committee.

In a separate concurrence in CarterJustice Lowy addressed the fact that race and gender, unlike sexual orientation, is visually apparent. He suggested that instead of requiring an opponent of a peremptory strike to provide evidence of “all relevant circumstances,” the opponent’s burden should be “timely objection to a peremptory challenge made on the basis of [a] protected class.” Otherwise, Justice Lowy cautioned, inquiring into a juror’s sexual orientation and allowing use of sexual stereotypes would be among the pernicious ways for an opponent to a peremptory challenge to meet his or her burden of establishing a prima facie case.

Courson is concerned that “in cases where a party suspects that its opponent is challenging jurors based on perceived sexual orientation or transgender status, the [Batson] test leaves the challenging party with no good options. If jurors have not openly disclosed such information, the test requires the challenging party to employ stereotypes about jurors,” he observes. “Alternatively, however, if the court only permits challenges to jurors who have openly shared their orientation or gender identity, the court risks permitting discrimination against some jurors.”

Eliminating Peremptory Challenges May Not Resolve Batson Shortcomings

At least one state has eliminated peremptory challenges entirely, ostensibly to address shortcomings that have occurred from the uneven application of Batson and its progeny there. In its Order Amending Rules 18.4 and 18.5 of The Criminal Procedure, and Rule 47(e) of the Rules of Civil Procedure, effective January 1, 2022, the Arizona Supreme Court is eliminating peremptory challenges in both civil and criminal cases in the state. Section leaders generally agree that eliminating peremptory challenges may not be the best way to empanel an impartial and fair jury.

“I don’t believe that eliminating peremptory challenges is a positive change or the answer to ensuring full participation by all persons in the jury process,” opines Darryl A. Goldberg, Chicago, IL, chair of the Section’s Trial Evidence Subcommittee of the Criminal Litigation Committee. “As trial lawyers, I’ve heard others refer to it as practicing intuition; you often go with your gut or the visceral reaction you get when a juror looks at you or your client to exercise a peremptory challenge. Eliminating peremptory challenges may limit your ability to screen out biased jurors,” Goldberg says.

Echoing Goldberg’s view, other Section leaders believe that the elimination of peremptory challenges may do more harm than good. “I happen to believe that peremptory challenges are a vitally important part of the jury selection process,” emphasizes David I. Schoen, Montgomery, AL, chair of the Criminal Law Subcommittee of the Civil Rights Litigation Committee.  “I believe they are an invaluable tool for weeding out jurors who the trial lawyer can tell have an agenda but are clever enough to conceal it and do not present grounds for a challenge for cause.” Schoen is mindful of the difficulty in preventing prohibited-use peremptory strikes in jury selection but thinks one solution could be “greater leeway in and broader use of voir dire, preferably attorney-conducted voir dire.”

The absence of control over jury selection is another disadvantage of eliminating peremptory challenges, says Alexander Wharton, Memphis, TN, cochair of the Section’s Criminal Litigation Committee. “When explaining potential outcomes to clients, attorneys will now have to say, ‘I have no idea nor do I have any reasonable degree of control over what kind of jury we will get,’” Wharton adds.

Robertson expressed cautious optimism as to whether Arizona’s elimination of peremptory strikes will gain traction in other states. “I don’t think other states will act to eliminate peremptory strikes right away, but I do think they will pay a great deal of attention to what happens in Arizona,” Robertson opines. “If the experiment is successful in improving jury diversity, then I would expect other states to follow Arizona’s lead,” Robertson predicts.