The twenty-fifth anniversary of Batson v. Kentucky provides an important moment to reflect on Batson and to consider how this seminal case and its progeny have affected the use and abuse of peremptory challenges. I had initially welcomed the U.S. Supreme Court’s approach to peremptory challenges in Batson back in 1986. Although Batson was a compromise preserving peremptories while seeking to address discriminatory—peremptories—it had the noble goal of trying to eliminate discrimination during jury selection. I also embraced its expansion over the years. The logic of Batson was inexorable: just as prosecutors should not be permitted to use peremptories to eliminate African Americans as jurors, so too, defense attorneys and civil parties should be similarly constrained. Just as African
Americans should not be subjected to discriminatory peremptories, so too, members of any race, ethnicity, or gender should not be subjected to discriminatory peremptories. However, over time I developed serious doubts that Batson and its progeny could achieve their central goal of eliminating discrimination during jury selection. Now, with twenty-five years of experience, we can look back and see just how ineffective Batson has been. This anniversary is an appropriate juncture to renew the call for the elimination of the peremptory challenge, echoing Justice Thurgood Marshall’s recommendation in his Batson concurrence twenty-five years ago.10
This anniversary prompts not only a reassessment of why Batson has been so ineffective over the course of twenty-five years, but also a reexamination of what any of us—lawyers, judges, and prospective jurors—can determine about individual juror bias before the start of the trial (other than the most clear-cut cases for which a for-cause challenge is appropriate). At some point during voir dire, judges typically ask prospective jurors whether they can be impartial. If they say that they can be, then they are free to serve. The only barrier to their service is the lawyer who distrusts their response and removes them through the exercise of a peremptory challenge. But this assumes that a lawyer can recognize individual juror bias, and this assumption is based on anecdotal evidence, which is undermined by empirical studies.
England, which has eliminated the peremptory challenge, offers another theory of juror bias. English barristers and judges explain that jurors will rise to the occasion and put aside their biases and perform their role as impartial jurors. When questioned about this, they suggest that most jurors can serve because they take their responsibilities seriously and will step into their role as “impartial jurors.”
An alternative theory of juror bias, which I call the “process theory,” is that various stages of the jury process will help jurors to perform their role impartially even if they began the trial with biases that the juror, judge, or lawyers failed to identify. For example, the voir dire, oath, instructions, and deliberations (particularly with a diverse jury) help jurors to put aside their biases and to perform their role as impartial jurors. According to this theory, peremptories, which limit the diversity of the jury, make it more difficult for jurors to challenge each other during deliberations, and therefore, make deliberations less of an institutional constraint on juror bias.
Under both the English and the process theories, peremptories do not play a constructive role and should be eliminated. The elimination of peremptories in England also suggests that peremptories are not inevitable, even in a jury system that has had a tradition of peremptories, as England has had and the United States still has. Moreover, peremptories are harmful to the jury system. As twenty-five years of Batson have shown, peremptories can limit African Americans’ opportunities to serve as jurors and skew the composition of the jury, particularly in capital cases. Peremptories make it more difficult to achieve juries that reflect a fair cross section of the community.
This twenty-fifth anniversary gives us an opportunity to rethink the theory and practice of peremptory challenges under Batson. Toward this end, Part I will offer three explanations as to why Batson has been so ineffective in practice. Part II will critique the American theory of juror bias, which assumes that lawyers can discern juror bias and that lawyers will exercise peremptories to eliminate so-called biased jurors. Part III will look at the English theory of juror bias, which assumes that jurors will rise to the demands of their role and be impartial. Under this theory, peremptories are no longer needed. It will also look at the process theory and consider how peremptories undermine the effectiveness of jury deliberations. Finally, Part IV will examine the ways in which we should revise our own jury-trial practice by eliminating peremptory challenges to reflect the difficulty of identifying individual juror bias and militate against the harms that peremptories cause. Even if peremptories are eliminated, for-cause challenges and voir dire should remain. For-cause challenges exclude jurors who say they cannot be impartial, and voir dire serves other, albeit unacknowledged, functions, such as transforming summoned citizens into responsible jurors and providing the first step, according to the process theory, of educating jurors about the need to be impartial.
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