Exercising Peremptory Challenges in Light of J.E.B
Status of Peremptory Challenges
Peremptory challenges have been under increased scrutiny since Batson v. Kentucky, 106 S. Ct. 1712 (1986), where the Supreme Court ruled that the prosecution could not use its peremptory challenges on the basis of race (i.e., challenging African-American jurors). Since Batson, a series of decisions have established that: (a) criminal defense attorneys cannot exercise peremptory challenges in a discriminatory manner, e.g., against African-American jurors, State v. McCollum, 112 S. Ct. 2348 (1992); (b) peremptory challenges may not be used in a discriminatory manner in civil trials, Edmonson v. Leesville Concrete Co., 111 S. Ct. 2077 (1991); and (c) peremptory challenges may not be used in a discriminatory manner against Latinos, Hernandez v New York, 500 U.S. 352 (1991) and Hispanics, Allen v. Hardy, 478 U.S. 255, 259 (1986). Some lower courts have extended the bar to discriminatory use of peremptory challenges to whites. See, e.g., Brown v. Neurodiagnostic Associates, P.C., District of Columbia Superior Court No. 90-CA-4171 (1992).
The Supreme Court extended its consideration of peremptory challenges to the area of gender in J.E.B. v. Alabama ex rel. T.B., 62 U.S.L.W. 4219 (U.S. 1994). It ruled that the Equal Protection Clause prohibits the discriminatory use of peremptory challenges based solely on the gender of jurors.
Under Batson and J.E.B., once a party exercises its challenges against members of a specific race or gender, the opposing party can raise an objection establishing a prima facie case of discriminatory intent. The original party is then afforded the opportunity to explain its use of peremptory challenges in a non--discriminatory manner. This explanation does not have to reflect the same level of bias necessary for a challenge for cause. It simply must be based on a characteristic other than the juror's race or gender which is not merely a pretext for a race- or gender-based challenge.
In practice, the standards to which the explanations are applied resulting from Batson and now J.E.B. challenges are somewhat unclear. The courts appear willing to recognize the basis for using peremptory challenges resulting from the opinions expressed by jurors, and challenges based on occupational status, lifestyle, or nonverbal communication of the juror may be acceptable. However, while the inability to look at the attorney or hesitancy to answer questions may be sufficiently (race-)neutral explanations for exercising peremptory challenges, People v. Mack, 128 Ill. 2d 231, 538 N.E.2d 1107 (1989), an unarticulated "feeling" based on the demeanor of the juror may not, e.g., when the juror's lack of eye contact makes the prosecutor feel uncomfortable. Wright v. State, 586 So. 2d 1024 (Fla. 1991).
In addition to the explanations offered, some courts have looked at the behavior of the parties for indications of discriminatory intent. The unequal treatment of jurors both in terms of the questioning process and the use of similar information from jurors of different races (or genders) was viewed as reflecting discriminatory intent in Brown v. Neurodiagnostic Associates, P.C., supra. Thus, consistency in the information sought (i.e., seeking similar information from all jurors) and consistency in the rationale for striking jurors (e.g., striking jurors of all races or genders with certain occupations) is important. Finally, at least one court has ruled that if there is a policy adopted by a party across cases that serves to exclude certain occupations or lifestyles, then discriminatory intent is absent. Wylie v. Vaughn, 773 F.Supp. 775 (E.D. Pa. 1991).
What is clear from these rulings is that peremptory challenges cannot be exercised in a discriminatory manner based on race or gender. The ability to articulate specific race- and gender-neutral reasons for exercising peremptory challenges is the key to successfully avoiding a Batson or J.E.B. challenge. While some commentators have said that these decisions have sounded the death knell for the peremptory challenge, the reports of its death may be premature. Stereotyping such as was addressed in Batson and J.E.B. is often employed in the absence of more useful information on jurors (e.g., their opinions and experiences). Attorneys must now seek more information and employ more sophisticated rationales for the exercise of peremptory challenges. Shifting away from stereotypes will require greater consideration of the jurors' opinions, beliefs, and experiences. Both the majority and dissenting opinions in J.E.B. point to properly conducted voir dire as the tool with which attorneys can gather the information needed so that it becomes unnecessary to rely on gross stereotypes in the exercise of peremptory challenges.
The following are some tips for conducting jury selection in the aftermath of Batson and J.E.B.
Conducting Voir Dire More Effectively
As is any case, and particularly in those cases where issues of discriminatory use of peremptory challenges may arise in jury selection, it is important to maximize the information gained through voir dire. Capitalizing on the fundamentals of conducting effective voir dire is essential to this task.
Seek information beyond basic demographics. Jurors' experiences and opinions are better determiners of juror desirability than mere stereotypes. Attorneys need to ask questions that will uncover relevant experiences and opinions of jurors. Advance consideration of potentially relevant experiences or opinions is necessary. In excessive force cases, questions that address prior experiences with discrimination, being stopped by police without a reason, knowledge of friends or acquaintances who have been injured while in police custody, and being a victim of a crime are often relevant. Also potentially relevant are the jurors' views of the likelihood that law enforcement officers would use excessive force and their views on the use of force by law enforcement officers.
In some cases, the pursuit of relevant information is likely to be beyond what normally occurs in the trial jurisdiction. Attorneys may have to seek from the court greater latitude in the questioning process, in general, or greater latitude in specific areas in order to obtain the relevant information.
Take advantage of open-ended questions. When addressing important issues in voir dire, ask questions that require jurors to express their opinions in their own words where possible. Open-ended questions, e.g., "What do you think about . . .?" or "Tell me about your experiences with (police officers)?," force jurors to reveal more about their opinions and thought processes than standard "close-ended" or "yes-or-no" type questions.
Utilize good voir dire skills. Utilize skills that enhance the jurors' willingness to disclose information about their experiences and opinions. Be supportive and empathetic duringvoir dire. Do not "interrogate" jurors. Be attentive and show jurors that you care about their answers to your questions. Also, encourage jurors to tell more about themselves and their opinions by positively reinforcing them for their openness, e.g., "Thank you," "That's interesting," or "I appreciate your candor."
Pursue questions in a consistent manner. It is important to gather information in a consistent fashion from all jurors in order to be most effective in jury selection. Sometimes attorneys do not ask many questions of jurors they assume they will remove peremptorily in the absence of grounds for challenges for cause. This practice can be self-defeating since some jurors who are initially thought to be "bad" later are discovered to be acceptable or even "good" based on their past experiences or opinions.
However, inconsistent questioning of jurors is a particularly unwise practice in trials where Batson and J.E.B. issues may arise. Failure to treat jurors of different critical groups, e.g., race, equally in the questioning process can lead to the inference of discriminatory intent in the subsequent exercise of peremptory challenges.
Several steps can be taken to support nondiscriminatory explanations for the use of peremptory challenges in jury selection. These recommendations focus primarily on record-keeping and the development of nondiscriminatory explanations for using peremptory challenges. These recommendations presume compliance with Batson and J.E.B.
Observe jurors' verbal and nonverbal behavior. Pay close attention to and record instances of undesirable verbal and nonverbal behavior of potential jurors. Place these observations into context for the judge as part of the explanation for a peremptory challenge. For example, remind the judge that a juror reacted in an undesirable manner by folding their arms or turning away from you, frowning, and avoiding eye contact when considering the topic of the presumption of innocence or the liability of the defendant.
Keep good records. Attorneys can better support their rationale for removing jurors by pointing to specific answers given or reactions exhibited by these jurors during voir direquestioning. To this end, good record-keeping is important. Through good record-keeping, these observations are available for later use in providing nondiscriminatory explanations for the peremptory challenges exercised.
Do not highlight race or gender in your records. Often recording the jurors' race and gender is useful in helping to prevent confusion by attorneys when trying to remember which jurors said what. However, highlighting the race or gender of jurors in the records kept on jurors can lead to an inference of discriminatory intent. As such, attorneys should at least avoid highlighting these characteristics and, in some cases, consider not recording this information altogether.
Articulate specific reasons for challenges. While the explanations for using peremptory challenges need not rise to the level of bias needed for a challenge for cause, these explanations must be clear, reasonably specific, and legitimate. Vague references to "not feeling comfortable" with a juror is likely not to be viewed as appropriate. Explanations should be based on more objective information, e.g., stated opinions or experiences, when available, that lead to an inference of the presence of some degree of bias. In presenting these explanations, capitalize on several features of the juror's answers, experiences, or behaviors to paint a total picture of the basis for the peremptory challenge.
In light of Batson and J.E.B., it is necessary for attorneys to become more systematic in their decision-making regarding peremptory challenges. Instead of a simple, "I don't like this juror," attorneys should ask themselves, "What is it about the juror's answers, demeanor, background or experiences that I don't like or makes me feel uncomfortable?" The answer to this question forces a decision-making process more in line with Batson and J.E.B., even if the decision appears at first to be based on a "gut" reaction. Asking this type of question also keeps in mind what information attorneys need to know in going beyond the use of stereotypes.
Be consistent. Being consistent in the manner in which peremptory challenges are exercised can go a long way in supporting explanations of nondiscriminatory intent. For example, excluding all jurors of a certain occupation no matter what their race or gender would substantially benefit an explanation of nondiscriminatory intent. As the Court suggested in J.E.B., as long as the stated reason for the peremptory challenge is not a pretext, exclusion of jurors based on an occupation or experience that is predominately associated with a particular gender, e.g., having military experience or being a nurse, may not be unconstitutional.
While consistency is desirable, it is not always possible. Just as stereotypes applied to gender and race will be overly broad, so must stereotypes being applied to such factors as occupations. All members of a given occupation may not be undesirable. When this situations arises, it is necessary to point out reasons why a potential juror was not removed by a peremptory challenge while other jurors from the same occupation were removed. The key issue again is pretext. The differentiating reason(s) for accepting the potential juror while removing others with the same occupation must be nonpretextual and brought to the court's attention.
Surveys or opinion polls and, in some cases, focus groups and trial simulations, can be used to develop profiles of favorable and unfavorable jurors. These empirically-driven profiles often qualify the gross generalizations derived from stereotypes and, in many cases, refute the utility of these stereotypes altogether. In addition, such jury research can lead to uncovering nondiscriminatory questions concerning the experiences and opinions of jurors that are more useful in the jury selection process. The results of these studies lead to better discrimination in deciding which jurors to remove without discrimination in the use of peremptory challenges.
The Court extended its prohibition against the discriminatory use of peremptory challenges to include the gender as well as the race of jurors in its ruling in J.E.B.. Batson andJ.E.B. challenges require that attorneys show that peremptory challenges were exercised in a nondiscriminatory manner and that those reasons offered for the exercise of peremptory challenges are not simply a pretext for their discriminatory use.
Successfully avoiding Batson and J.E.B. challenges requires going beyond the use of stereotypes and paying greater attention to the conduct of voir dire and jury selection. Attorneys should (a) seek more information concerning relevant opinions and experiences of jurors—even if this requires seeking expanded voir dire questioning; (b) ask "open-ended" questions where appropriate; (c) employ interviewing skills that encourage candor by jurors; and (d) be consistent in their questioning of all jurors.
In terms of jury selection, attorneys should (a) keep good records on the information jurors reveal during questioning, e.g., their opinions, background experiences, and verbal and nonverbal communication; (b) articulate specific race- and gender-neutral reasons for the exercise of peremptory challenges; and (c) be consistent in the exercise of peremptory challenges. Finally, attorneys should take advantage of the benefits provided by jury research in determining important opinions and experiences of jurors along with useful nondiscriminatory strategies for exercising peremptory challenges.