Juries, Race, and Peremptory Challenges

The vitality of the American jury system depends on having jurors who come from different backgrounds and experiences so that the jury can view the trial, whether civil or criminal, from multiple perspectives. Although the jury has been drawn from a broader swath of the citizenry over time, there are still vestiges of past discrimination.

The most visible barrier to diverse juries is the peremptory challenge, which takes place in the courtroom. This challenge, which allows lawyers on each side to remove a certain number of prospective jurors without having to give a reason, also provides a mechanism for lawyers to discriminate. Although the United States Supreme Court has said that lawyers cannot exercise peremptory challenges based on race, ethnicity, or gender, the test that the court devised is ineffective. Recently, several state courts have begun to respond; other state courts need to follow their lead.

The test used today is one that the Supreme Court created more than 35 years ago in a case called Batson v. Kentucky. In that case, James Batson, who was being tried for burglary, noticed that the prosecutor struck all the Black prospective jurors using his peremptory challenges. Batson thought this was unfair and told his lawyer to object. His lawyer said that he had no basis to object, but Batson told him to “object anyway,” and he did.

Although Batson was convicted by an all-white jury, his case was eventually heard by the Supreme Court. The court tried to preserve peremptory challenges because they were part of our jury tradition and were thought to help seat an impartial jury, but the court also tried to eliminate discriminatory peremptory challenges. According to the Batson test, a Black criminal defendant could challenge the prosecutor’s exercise of peremptory challenges if they seemed to discriminate against Black prospective jurors, but if the prosecutor gave a race-neutral reason for the peremptory challenge then the criminal defendant had to show that the prosecutor had engaged in purposeful discrimination. This was not easy to show.

Even though the Supreme Court eventually expanded the protection of Batson so that all lawyers, whether in civil or criminal cases, could not discriminate against prospective jurors based on their race, ethnicity, or gender, Batson proved difficult to enforce. Lawyers learned to give reasons that did not refer to race, gender, or ethnicity, and judges accepted those reasons without much scrutiny. In addition, Batson addressed only explicit bias, not implicit bias. In several states, lawyers did not even try to bring Batson challenges because they knew that such challenges would always be unsuccessful. Even in the most serious cases—those involving the death penalty—the court often found Batson violations, but it was unwilling to alter the test.

Recently, some state courts have recognized the deficiencies of Batson and have experimented with different ways to address them. Washington took the lead in 2018. The Washington Supreme Court convened a task force to examine jury selection and peremptory challenges; it created a rule change to make the Batson test more objective and include implicit bias. The rule change also provided that certain reasons that had been accepted in the past, even though they were applied disproportionately to Black prospective jurors, would be “presumptively invalid.” Examples of such reasons include “having prior contact with law enforcement officers” or “living in a high-crime neighborhood.” In California, the state supreme court also convened a task force to examine discrimination during jury selection, but the California Legislature acted before the task force issued its report. California followed the path taken by Washington and tried to create a Batson test that would be more objective; in doing so it protected more groups than Washington’s rule change.

In August 2021 Arizona became the first state in the U.S. to eliminate peremptory challenges effective January 1, 2022. Arizona had the example of Canada, which eliminated peremptory challenges in 2019, and which I will study by observing jury selection in Canada this semester. Justice Thurgood Marshall, who had joined the court’s opinion in Batson back in 1986, had also written separately to explain that as long as peremptory challenges existed, they would continue to be used to discriminate and only with their elimination could jury selection be free from discrimination. Arizona took Justice Marshall’s words seriously. Now it remains for other states to do so.

—By Nancy S. Marder, Professor of Law and Director of the Justice John Paul Stevens Jury Center