BARUH: Peremptory challenge can remove jurors for racist reasons

Opinions Column: Vox Signata


Of all our civic responsibilities, jury duty is probably the most boring. Most of us show up to a courthouse to sit for too many hours with too many strangers while doing not too much of anything. Is there a way to survive the boredom of jury selection? Here’s one recommendation: Keep your eyes open for the undercover racism that’s almost bound to show up in the selection process.

Normally, selecting a jury proceeds as follows: Prospective jurors receive a notification that they’ve been selected for jury duty from the court. These prospective jurors come to the court, where they are asked a series of questions to determine their fitness for serving on a jury. Some people are eliminated outright for time-related reasons such as an upcoming exam that cannot be pushed off or business that must be completed before a certain date. Others are eliminated because they may have mental disabilities or have medical conditions that would prevent them from serving on a jury. Still others are excused because they cannot be impartial — they might know the police officer testifying or they feel strongly about a particular law (jury nullification, a topic for another time, can cause for removal). This last group, the jurors who are excused because of an articulated reason, are said to be “challenged for cause.”

You might think that after all of the jurors who could be challenged for cause are removed, that the trial would proceed with the 12 jurors in the jury box. Not so fast. Lawyers for both the prosecution and the defense have a tool that can help them change the jury to their liking. It’s called the peremptory challenge, and it allows the lawyers to remove jurors without giving a reason why. Every state in the union allows a certain number of these challenges, and it’s not too hard to see why lawyers love it. If you’re a lawyer and you have a gut feeling that one of the jurors will never agree with you, the peremptory challenge is a quick and easy way to make sure that juror doesn’t serve.

But while the peremptory challenge can be incredibly useful, it can also allow lawyers to remove jurors for racist reasons. For example, a prosecutor can think (erroneously) that black jurors never vote guilty, and strike a juror simply because they’re black. But striking a juror because of their skin color violates the juror’s right to serve on a jury and mars the whole trial with discrimination, to the detriment of the prosecution, the defense and the juror. To prevent discrimination, the Supreme Court in Batson v. Kentucky gave attorneys a way to fight a wrongful peremptory challenge. In a three-step process, the lawyer fighting the challenge would have to bring evidence that the peremptory challenge was used to remove the juror because of the juror’s race. Next, the attorney who wanted to remove the juror has to provide a race-neutral reason why they wanted the juror removed. After both sides have their say, the judge has to determine if the attorney who used the peremptory challenge did so illegally (i.e., because of the juror’s race).

While the Supreme Court’s solution can be helpful for fighting discrimination, it isn’t strong enough to prevent racist lawyers from removing jurors because of their race. Attorneys, at least the ones worth their fees, can easily think of race-neutral reasons for striking a juror (“he gave me a funny look, your Honor”). And once an attorney gives their reason, it can be difficult for the judge to say definitively that racism was the motivation behind the peremptory challenge. This means that attorneys can, with little difficulty, remove a juror simply because they have the wrong skin color.

The simplest thing to do would be to take away the peremptory challenge. It’s not a constitutional right, and some have argued that it is strange to deprive someone of their right to sit on a jury without telling them why. But the peremptory challenge does serve a legitimate purpose, and it can help both sides feel confident that the jury doesn’t contain people who dislike them. So what can we do to make sure that the peremptory challenge is used correctly?

One possibility is to allow the judge to challenge the peremptory challenge. Judges have as much if not more experience than the lawyers in the case, and are unbiased observers of the demeanor of everyone in the room. Their situational awareness can be critical for determining if a lawyer is removing a juror wrongly. But right now only the lawyers can fight against the abuse of the peremptory challenge. Getting the judge involved won’t solve all of the problems facing the peremptory challenge, but it can go a long way to removing the harmful discrimination that continues to cast a pall over our criminal justice system.

Yosef Baruh is a School of Arts and Sciences junior majoring in economics and minoring in computer science. His column, "Vox Signata," normally runs on alternating Mondays.

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