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The Use of Peremptory Challenges for
Discrimination in The Administration Of Justice
Annotated Bibliography

Stacey S. Jackson

3rd Year Law Student
The University of Dayton School of Law
Fall, 1998



This annotated bibliography attempts to provide an overview of the evolution of legislation and caselaw that relates to the use of peremptory challenges as a form for discrimination in the administration of justice. During the last century, blacks were often the victims of discrimination in the jury selection process, but in 1880, the Supreme Court struck down a state statute that denied blacks the right to sit for jury service with its ruling in Stauder v. West Virginia. The Court held that based on the 14th Amendment, it was unconstitutional to try a black defendant before a jury that had excluded all blacks solely because of their race. 

After this ruling by the Court, prosecutors found a new way to exclude blacks from jury service by the use of peremptory challenges. Prosecutors began to abuse peremptory challenges purposely to exclude blacks from jury service. It was not until Swain v. Alabama, that the Supreme Court granted certiorari to resolve this issue. It its ruling it held that there will be a presumption of legitimate use by prosecutors, but that defendants could overcome this presumption by establishing a prima facie case for discrimination. To prove a prima facie case the defendant had to demonstrate that the prosecutor had a history of systematically excluded blacks for jury duty. It was an accomplishment that the Court recognized that abuses did exist in the use of peremptory challenges, but the downside was that the ruling created an almost insurmountable burden on the defendant to override the presumption. The following annotated bibliography provides an in depth look at the caselaw in which this issue was argued.

The uncertainty continued for years until the Supreme Court decided to clarify the law relative to this issue. In 1986, the Court's ruling in Batson v. Kentucky stated that under the 14th Amendment, it was unconstitutional for prosecutors to exercise racial based peremptory challenges to exclude jurors where the excluded jurors and the criminal defendant shared the same race. This ruling brought clarity to this issue and also resolved the question of how the 14th Amendment may apply.

Caselaw is also presented in which the courts have recognized that jurors also have a 14th Amendment claim relative to this issue. The courts have suggested that citizens have a right guaranteed to them by the Equal Protection Clause under this amendment that gives them the right to participate in the judicial process in the form of jury service.

Over the course of the next eight years, lower courts and the Supreme Court continued to expand the use of the Batson case and others to continue to restrict any type of discriminatory use of peremptory challenges during voir dire. The following bibliography includes recent caselaw in which the Court has ruled that criminal defendants must not use peremptory challenges in a discriminatory manner. In Edmonson v. Leesville Concrete Company, the Supreme Court ruled that the Batson standards also apply to parties in civil actions. Most recently, the Court has concluded that even gender cannot be a sole basis for exclusion from a jury. The new debate over this issue is whether intersectional status such as gender and race be restricted as a basis for discriminatory use of peremptory challenges. At this time, no case has come before the Supreme Court on this issue. 

In addition, there still is debate over the issue of the peremptory challenge system. It has a long history in our courts, but many believe that it is time for its elimination from our justice system. My opinion is that peremptory challenges should stay in the justice process, but be monitored by the standards and procedures promulgated by these cases and statutes. Like Justice Marshall, many individuals support the idea of abolishing the peremptory process outright. This may stop one evil, but open the door to many other evils and opportunities for discrimination. There are others that suggest that it is fair for attorneys to use discriminatory peremptory challenges because everyone is subject to them. This argument is feckless based on the idea that any discrimination is wrong, no matter how much or who it is implemented against.

In conclusion, a person's right to be able to participate and be a part of the criminal and civil justice process via jury duty is a recognizable right and thus should be protected by the courts. In addition, and equally important is the right of a criminal defendant to be judged by an impartial and representative group of his or her peers. This right is of significant value and should be treated and protected with the utmost of diligence. Any small inconvenience experienced by the trial court should be endured to protect these important rights.

The following annotations are included in this bibliography:

U.S. CONST. Amend. V.

U.S. CONST. Amend. VI

U.S. CONST. Amend. XIV

18 U.S.C.A. 243

28 U.S.C.A. 1861 et seq.


Batson v. Kentucky, 476 U.S. 79 (1986)

Commonwealth of Pennsylvania v. Martin, 336 A.2d 290 (1975)

Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)

Georgia v. McCollum, 505 U.S. 42 (1992)

J.E.B. v. Alabama, 511 U.S. 127 (1994)

McCray v. New York, 461 U.S. 961 (1983)

People v. Kern, 75 N.Y.2d 638 (1990)

People v. Wheeler, 583 P.2d 748 (1978)

Powers v. Ohio, 499 U.S. 400, 111 S.Ct. 1364 (1991)

Strauder v. West Virginia, 100 U.S. 303 (1879)

Swain v. Alabama, 380 U.S. 202 (1965)

Thompson v. United States, 469 U.S. 1024 (1984)

United States v. McDaniels, 379 F. Supp. 1243 (1974)

Wilkerson v. Texas, 493 U.S. 924, 110 S.Ct. 292 (1989)


Claims of Discrimination in Civil Jury Selection

Criminal Law & Procedure---Peremptory Challenges

Jury Selection is Sure to be a Challenge

Reaching the Final Chapter in the Story of Peremptory Challenges,

Trial Practice-Peremptory Challenges

Trial Tactics and Techniques-Discriminatory Challenges

What's So Magical About Black Women? Peremptory Challenges At the Intersection of Race and Gender

Stacey S. Jackson is a third-year law student at the University of Dayton School of Law in Dayton, Ohio. He graduated cum laude in 1996 from Albany State College in Albany, GA, with a B.S. degree in Criminal Justice. Stacey plans to practice criminal law upon graduation from law school.



U.S. CONST. Amend. V.

This statute provides relief as an amendment to the United States Constitution. It states that no person shall "be deprived of life, liberty, or property, without due process of law". There is a violation of this amendment when there is a minority criminal defendant on trial and circumstances show that the state has purposefully used peremptory challenges to strike minority jurors. 

Many of the criminal defendants in this position have used this statute as a basis of appeal to seek a new trial. Unfortunately, recent and past caselaw has placed a tremendous burden on the defendant to prove his case for relief. This statute attempts to provide relief in federal courts and in conjunction with the 14th Amendment in state courts as well. 

U.S. CONST. Amend. VI

This statute is an amendment to the United States Constitution. Within its language, every person in the United States is guaranteed the right to be tried by an impartial jury of the State and district courts. This Constitutional amendment provides one of the reasons for outlawing any type of racial bias or prejudice in the jury box.

The 6th Amendment shall guarantee that the defendant shall have the right to be tried before a jury that represents a fair cross section of the community. A violation exists when discriminatory peremptory challenges are used to cut away at this right in an attempt to exclude certain groups from jury service. 

U.S. CONST. Amend. XIV

 This statute is an amendment to the United States Constitution. Within its language, every person in the United States is guaranteed Equal Protection of the Law. The statute provides that "no state shall make or enforce any law" that shall deny a person of the rights that are guaranteed by the United States Constitution.

The argument against the use of peremptory rights to strike potential jurors because of race rests on the fact that any victim; white or black has been denied equal protection under the law. Specifically, they are being denied the equal right to be judged by an impartial jury, thus the purposeful denial of the rights guaranteed in the 6th Amendment. This statute guarantees protection for criminal defendants in state courts.

18 U.S.C.A. 243

This particular statute is a rule of criminal procedure that covers the exclusion of jurors because of race or color. The statute states that a person shall not be rightfully disqualified or removed for jury service in any United States court if they possess all of the qualifications proscribed by law. The statute also sets a maximum fine of $5,000 for anyone violating this rule. 

Under the color of this statute, it seems that not only attorneys are subject to sanctions under this statute, but any officer of the court. Any attempt to use discriminatory tactics to purposeful exclude jurors regardless of color solely based on race is in violation of this rule. This statute not only covers attorneys, but also those individuals that work for the county who may be in charge of creating the potential jury list for service or those individuals who actually summon potential jurors. 

28 U.S.C.A. 1861 et seq.

This is the codified version of the Jury Selection and Service Act of 1968. Although this statute specifically deals with the process and methods of selecting the jury venire, it is an important tool in creating an argument against any discriminatory practices in jury selection. The language of the law is that "No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status". 

It is true that this particular statute does not cover peremptory challenges, but one may argue the principles that it attempts to enforce be carried into the courtroom during voir dire. An attempt to break away from the promulgated ideas of this statute would make it unnecessary and moot. 

Strauder v. West Virginia, 100 U.S. 303 (1879)

This case represents the beginning of the battle for equal protection for defendant relative to the right to have their case presented before an impartial jury. In this particular case, a black defendant and former slave was tried and convicted in state court for murder before an all white jury. After the trial, the defendant challenged his conviction based on a West Virginia law that excluded blacks from jury panels and that this law violated his rights under the Equal Protection clause of the 14th Amendment. The Supreme Court reversed the conviction based on statutory interpretation of the 14th Amendment.

Throughout its opinion, the Court relied on the intent of the 14th Amendment and other related amendments. The Court focused on the fact that these amendments had the purpose of guaranteeing the rights of those citizens who had been denied certain basic human rights for many years. 

The Supreme Court made it clear that the state's policy of rejecting blacks the right to become members of a jury without any other reason than their skin color was a violation of the defendant's rights under the 14th Amendment. This particular case laid the foundation for the Court's efforts in eradicating racial discrimination in jury selection.

Swain v. Alabama, 380 U.S. 202 (1965)

This case involved a black defendant convicted of rape in the state court of Alabama. The defendant was tried and convicted before an all white jury. The prosecutor purposefully struck the only blacks that were eligible to serve on the jury by using peremptory challenges. Swain appealed his conviction based on the systematic exclusion of blacks from juries and the continual use of preemptory challenges by the government to exclude blacks as potential jurors. The Supreme Court denied relief. 

The Supreme Court's denial of Swain's relief struck a major blow for the progress that minorities had made in attempting to guarantee equality relative to having fair and impartial juries. It created almost insurmountable barriers in attempting to prove purposeful discrimination by the state. The Court's reasoning in this case was feckless, at best. The Court ignored the fact that not one black had served on a jury in the history of that particular county. The Court operated on the assumption that the prosecutor had removed the eligible black jurors for legitimate reasons and not because of race. The trial court did not require the state to make a reasonable rebuttal to the argument that the state removed the individuals because of race. The court did establish the requirements for establishing a prima facie case for discrimination, but the presumption given to state attorneys created difficult barriers.

United States v. McDaniels, 379 F. Supp. 1243 (E.D. LA 1974)

In this case, the defendant was granted a new trial based on a different form of relief. Although the Appellate Court felt that the defendant, McDaniels, could not prove the "systematic exclusion" of blacks, he was granted a new trial based on Rule 33 of the Federal Rules of Criminal Procedure. The rule allows a new trial to be granted "in the interests of justice".

On appeal, McDaniels used statistical evidence from trials occurring two years previous to his to attempt to show the "systematic exclusion" of blacks from the jury. Where the case involved a black defendant, the statistics showed that 69% of the challenges used by the government were against blacks. Additionally, out of the 53 cases involving black defendants over the previous two years, only 5 of those cases the government challenged no blacks and blacks actually had an opportunity to serve on juries. The court determined that this evidence was not conclusive because the racial make-up of the jurors that actually served was representative of the racial percentages represented by the list of registered voters within the district. This case is another example of the high standard that defendant must meet to get judicial relief. 

Commonwealth of Pennsylvania v. Martin, 336 A.2d 290 (1975)

In the Martin case, an all white jury convicted the defendant of murder, robbery, and other related charges. The record shows that eight of the Commonwealth's fourteen peremptory challenges were used to exclude all of the available blacks that could possibly sit on the jury for Martin's trial. Upon appeal, the conviction was affirmed.

The opinion of the court made specific reference to the standard presented by the Swain case. The court stated that the weakness of the Swain standard is that it requires a showing of a systematic exclusion of blacks from the jury, but it fails to offer relief when the discriminatory use of peremptory challenges is made on a selected basis. The court also uses the argument in the Swain opinion that provides the presumption that the prosecutor's for the State is making a challenge to obtain a fair and impartial jury. This presumption is very difficult to overcome for someone asserting purposeful discrimination. I feel that it is unfair to give such a presumption to a prosecuting attorney, which assumes that they can do no wrong. 

People v. Wheeler, 583 P.2d 748 (1978)

The Supreme Court of California decided to reverse the murder convictions for two defendants. The defendants charged were two black males and the victim was a white male. After a number of blacks were removed for cause, the prosecutor continued to strike every black person from the jury with peremptory challenges and the result was an all white jury. The case was of first impression in the California courts.

The defense objected to the peremptory challenges at trial and moved for a mistrial. The judge never required the State to explain why they were proceeding in such a way. On appeal, the court ruled that a prima facie case was made by the defendants at trial and that the trial court erred in not requiring the prosecutor to respond to the allegations. The trial court was wrong in denying the motion for a mistrial without a rebuttal showing that the prosecutor based their challenges on non-prejudicial grounds. 

McCray v. New York, 461 U.S. 961 (1983)

In this particular case, the Supreme Court held that further review of the issue of peremptory challenges used to exclude blacks for juries needed further consideration by lower courts. The Supreme Court decided to consider it at another time and denied review. I believe that the Court's denial of cert. was prejudicial to those individuals who may have had valid claims at that time, but for the fact that the Court simply did not want to address the issue. For the Court to say that they were going to allow the various States to serve as "laboratories" and battle over this issue makes it seem that these criminal defendants were used as genie pigs for the Court. 

In the dissenting opinion Justices Marshall and Brennan stress the point that in these types of cases there may be a violation of a criminal defendant's right to an impartial jury, a right guaranteed by the 6th Amendment. The Supreme Court should have had the initiative to grant cert. to this case and finally resolve the ambiguity surrounding the Swain case and other cases involving similar issues. 

Thompson v. United States, 469 U.S. 1024 (1984)

The defendant appealed his conviction based upon the notion that the prosecuting attorney excluded individual potential jurors based upon the fact that they were black and the defendant was of the same race. The Supreme Court denied the defendant petition for writ of certiorari. Although the Court denied cert., it important to make note of Justice Brennan's dissenting opinion. 

In Swain v. Alabama, Justice Brennan held with the majority that the prosecution's right to use peremptory challenges in any particular case involving a black defendant had to remain free of equal protection scrutiny. In this opinion, Justice Brennan states that the Court's holding in Swain has been misconceived over the years. This is true because the effect of the decision is that it allows that the presumption that blacks will automatically be partial to a black defendant because both belong to the same race. Justice Brennan argued that the time was ripe to reconsider Swain and finally resolve the issue. The importance of the case is the realization by Justice Brennan of the importance of this issue and the need of the Court to resolve such an issue. 

Batson v. Kentucky, 476 U.S. 79 (1986)

This case eased the burden placed on those who attempt to challenge the basis for peremptory challenges during the jury selection process. During voir dire, the prosecutor used his peremptory challenges to strike all four blacks from the venire, resulting in an all white jury. Counsel for the defense objected and moved that the jury be discharged because the removal of the black jurors violated the Sixth and Fourteenth Amendments. In this case, as in others, the trial court rejected defense counsel's motion without requiring the prosecutor to give neutral grounds for using the peremptory challenges against blacks. The Supreme Court reversed the conviction. The Court also used this opportunity to reaffirm the idea that by denying a person participation in jury service because of his race, the State unconstitutionally discriminated against the excluded juror. [EN1] The Court also expressed its feelings on how discrimination in the jury selection process also effects the public's confidence in the justice system. 

The Court takes the time to lay out the circumstances in which a defendant provides a prima facie case for discrimination. At such time, the State will then have the burden shifted to them to give neutral reasoning for striking black jurors. The Court specifically states that the Equal Protection Clause forbids the States to strike blacks from the jury pool on the assumption that they will be partial or bias because the defendant is black. Although some administrative duties and costs may burden the courts, but it is a necessary price to pay for Equal Protection. 

Wilkerson v. Texas, 493 U.S. 924 (1989)

In this case, a black defendant was convicted of murder by an all-white jury and later sentenced to death. The prosecution used 4 of its 12 peremptory challenges to strike all of the black potential jurors. The defendant later appealed stating that the prosecution's use of peremptory challenges to strike all of the black potential jurors was purposeful discrimination. The trial court allowed a Batson hearing and during such hearing, one of the prosecutors admitted that race played a role in striking individual jurors, but it was not a major or deciding factor. The Texas Appellate Court accepted the prosecution's rebuttal and justification and affirmed his conviction. The Supreme Court denied a writ of certiorari.

In his dissent, Justice Marshall states that the state court clearly omitted the prosecutor's open admissions that race played a part in the peremptory challenges when the court ruled on the case. He also uses this case as an example of the ineffectiveness of the standards in Batson, and how the "neutral explanation" opportunity given to prosecutors or parties accused of discrimination undermines the standards in Batson.

People v. Kern, 75 N.Y.2d 638 (1990)

This New York case added a new twist to the evolution of cases relative this particular subject. In this particular case, a group of white teenagers were accused and convicted of murder of a black victim and of assault against another black victim. The defendants argued that neither State nor federal statutes prohibit a criminal defendant from exercising racially discriminatory peremptory challenges. The court had to decide whether the procedures articulated in Batson be applied to limit the exercise of peremptory challenges by the defense if they are being used to exclude a particular racial group from the jury. 

The Court held that the standards given in Batson applied and that purposeful discrimination in exercising peremptory challenges, whether by the prosecution or the defense was a violation of New York's Equal Protection Clause and Civil Rights Clause. In its reasoning, the court affirmed the notion that citizens have a civil right to serve on a jury if they meet the qualifications. In Batson, the Supreme Court declined to answer whether the Equal Protection Clause restricted the exercise of peremptory challenges by defense counsel. In previous cases, to prove discrimination, the complaining party must show that State action was involved in the discriminatory act. The court reasoned that there was State action because the State is "inevitably and inextricably" involved in the process of jury selection. The State summons jurors for duty, the right to exercise challenges is conferred by State statute, and the Judge enforces the discrimination by excusing the juror. This case was important because it referred to the scope in which the principles in Batson may be possibly applied. 

Powers v. Ohio, 499 U.S. 400 (1991)

The Supreme Court had to decide whether a white defendant could object to the prosecution's use of peremptory challenges to exclude black jurors was a violation under the Equal Protection Clause. The Court held that the objection was indeed valid and thus held that the defendant's conviction demanded reversal. The defendant had standing to raise the third party equal protection claims of the excluded jurors.

The Court reasoned that under the Equal Protection Clause, a criminal defendant could raise these types of objections whether or not the defendant and the excluded jurors were of the same race. In its reasoning, the Court held that the Batson decision served many purposes and that the protection of criminal defendants from discrimination in jury selection was only one of the many protections provided for in the decision. In addition, the Court stated that the Batson decision recognized that the use of discriminatory peremptory challenges deprived excluded jurors the right to participate in civil life. This was indeed a major victory not only for the protection of criminal defendants, but also for the protection of the rights of minorities to participate in the criminal justice process. 

Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)

Up until this point, many of the cases where an objection raised for discriminatory use of peremptory challenges involved criminal cases. In this particular case, the Supreme Court had to decide whether the standards and procedures used in these cases applied in the context of civil cases. In this matter, the plaintiff, a black construction worker, sued a concrete company in a personal jury claim for negligence. The defendant used two of its three peremptory challenges to strike two blacks from the prospective jury. The plaintiff objected and asked the court to require the defendant to give a race-neutral based explanation for striking the two blacks. The court refused to do so, stating that the Batson standards did not apply in civil proceedings. 

The Supreme Court disagreed with the trial court, reversed, and remanded the case. The Court held that excluding a potential juror solely on the grounds of race violates that person's equal protection rights. Peremptory challenges are authorized by the state, thus any discriminatory use of these challenges by the defendant denotes state action, providing that this procedure take place under the watchful eye of the Equal Protection Clause. In addition, the process of voir dire involves the performance of a governmental function. The Court also sustained the right for a private civil litigant to raise the equal protection claim of an excluded juror. 

Georgia v. McCollum, 505 U.S. 42 (1992)

In this case, the Supreme Court reversed a Georgia court's decision that allowed criminal defendants to use peremptory strikes in a discriminatory manner. The Court granted certiorari to review the issue and finally resolve the issue. If the State can show a prima facie case of racial discrimination by the defendants, the defendants will then have the burden of providing a racially neutral explanation for the peremptory challenges.

The Court reasoned that when peremptory challenges are used to discriminate against a person, they violate the protections provided by Batson. The Court did hold that the rights of the criminal defendant are not violated by these standards. A criminal defendant's right to effective counsel and trial by jury guaranteed him by the Sixth Amendment is not violated in anyway. The result is that whether civil or criminal, state or defense, any discriminatory use of peremptory challenges is prohibited.

J.E.B. v. Alabama, 511 U.S. 127 (1994)

The case in question broadened the scope of the Equal Protection Clause relative to peremptory challenges. The Appellant was a defendant in a civil complaint for paternity and child support. At the conclusion of the trial, the Appellant was ruled the father of the child and ordered to pay child support. The Appellant seeks an appeal based on the State's use of peremptory challenges to exclude all males from the jury. The trial court denied the Appellant's objection at trial.

The Supreme Court reversed the decision of the trial court. The basis for its decision was that the Equal Protection Clause also prohibits the use of gender stereotypes excluding males or females from a jury. Like race, gender cannot be tolerated as a medium for discriminating against potential jurors. Whether male or female, black or white, every qualified citizen has a right to participate in the criminal justice process.

Karen M. BrayReaching the Final Chapter in the Story of Peremptory Challenges, 40 UCLA L. Rev. 517 (1992)

This article provides a historical look at the use of peremptory challenges and the history of caselaw and theory that has evolved in an effort to halt their use in discriminatory ways. The article provides an excellent discussion of the standards discussed in the Swain v. Alabama and Batson v. Kentucky cases. 

The author argues that development of caselaw surrounding this issue will not only clog up the criminal justice system by consuming valuable time, but also create extra expense and trial delay. The author believes that the standards do not protect against discrimination due to the loopholes and ambiguity in certain standards and with the extra burden of court delay. The author also gives an insight to reasons for abolishing the peremptory challenge system. I will agree that the system does have its flaws, but it must be tolerated to protect the interests of justice and the interests of the public. 

Jean Montoya, What's So Magical About Black Women? Peremptory Challenges At the Intersection of Race and Gender, 3 Mich. J. Gender & L. 369 (1996)

This article also goes into in depth discussion of the history and caselaw relative to the use of peremptory challenges. In conflict to Ms. Bray's article, this article proposes that Batson hearings on peremptory challenges do not consume a considerable amount of court time. The article also provides a critical critique of the pros and cons of the Batson standards. In addition, this article discusses the possibility of broadening the scope of peremptory challenge limitations to include challenges that intersect on a combination of gender and race standards.

The article mentions United v. Nichols, [EN2] where there was an accusation that the State's prosecutor purposely excluded the intersectional group of black women from the jury. The trial court denied relief for the defendant, stating that a prima facie case under Batson was not present. The lower federal and state courts have given opinions on the issue and they all have given different answers. The author argues that the issue is ripe for the Supreme Court to grant review. I will agree that the time is now. Using intersectional grouping of wealth, status, race, and gender provides opportunities for instituting racism and the courts must expand Batson's scope to terminate discrimination.

Criminal Law & Procedure---Peremptory Challenges, Chicago Daily Law Bulletin, July 22, 1992

This article provides a look into how the Batson v. Kentucky, 476 U.S. 79 (1986) standard was used in an Illinois state court relative to a Defendant's claim for relief for the alleged discriminatory use of peremptory challenges. During jury selection, the prosecution used three of its seven peremptory challenges against black men and three others against three white men. Four blacks still served on the jury. The defendant attempted to use this evidence to establish a prima facie case for discrimination.

This attempt by the defendant was not clearly enough evidence to cause the burden to be shifted to the state to justify the use of its challenges. The defendant's circumstances lacked the necessary element of purposeful discrimination by the state that is needed to shift the burden. Thus, the court denied relief after hearing arguments from the defense and prosecution. 

Tony Mauro, Jury Selection is Sure to be a Challenge, USA Today, September 26, 1994, at A2

This particular article provides an outlook to how significant the role of peremptory challenges play in a highly publicized and racially explosive case. The author goes into detail to explain the role of peremptory challenges in our justice system and then explains how it could possible make a huge impact in the legal strategy for both prosecution and defense. 

The article goes further to explain how each objection by either side relative to a challenged juror could be the basis for an appeal or reversal of judgment. The author also provides examples of recent cases in which a conviction was overturned due to the discriminatory use of peremptory challenges. 

Aaron J. Broder, Trial Tactics and Techniques-Discriminatory Challenges, New York Law Journal, July 1, 1991

The author of this article attempts to describe the ruling in Edmonson v. Leesville Concrete Co. He also attempts to explain the effect that this type of ruling will have on the criminal justice system. The author clearly shows support to the ideas that Justice Scalia's dissent in the Edmonson case conveys. The author also mentions the effect that it may have in cases where peremptory challenges are questioned based on gender, but the primary focus of the article is relative to racial considerations.

The author emphasizes the idea that the Edmonson ruling will eventually burden the court because too much time and energy will be focused on deciding the motives of the participants in the case and less time will be focued on the merits of the case. The author also points out that the standard is too broad in scope and will hinder attorneys from making otherwise fair peremptory strikes.

I strongly disagree with the author's viewpoint. The trial judge will have the legal knowledge to dismiss any feckless arguments brought by either party. This ruling will only make more judges and attorneys cautious and that the rights of parties should be protected and that our justice system should not have room for any types of discrimination or racism.

Joseph and Robert Kelner, Trial Practice-Peremptory Challenges, New York Law Journal, December 28, 1993

The authors of this piece reflect the idea that it is nearly impossible to free the jury of all bias. They continue to support the ideas for which the Batson v. Kentucky ruling emphasized. The article makes the assertion that the Batson decision has to serve a multitude of purposes for ending all types of racism or bias on the jury. The authors state that the rule was intended to eliminate prejudices, not just minimize them. To support their argument, they specifically point out the rationale expressed in People v. Bolling, 79 NY 2d 317, a New York Court of Appeals case. 

The article quotes Judge Bellacosa's concurring opinion in the Bolling case that makes reference to the idea that there is an inadequacy in the peremptory process and that it should be eliminated to ensure a non bias jury. Judge Bellacosa refers to Justice Marshall's concurring opinion in the Batson case that the remedy offered in the Batson case may not be enough. 

I will agree that more strict standards are needed, but the dissolution of the peremptory challenge process is not the answer. I hope that skilled trial attorneys can look through the often superficial attitudes and answers that potential jurors give during voir dire to attempt to "weed out" jurors that harbor some prejudices. In addition, judges must be relied upon to uphold the standards and not allow superficial justifications offered by prosecutors or any parties upholding their conduct. 

Gregg J. Borri, Claims of Discrimination in Civil Jury Selection, New York Law Journal, August 15, 1994, 

This article notes the role of peremptory challenges not only in criminal cases, but in civil cases as well. The article specifically analyzes the rationale provided in Ancrum v. Eisenberg, 1994 N.Y. App. Div. LEXIS 6364 (1st. Dept. 6-21-94), a New York Appellate case. In this particular case, the Appellate Court remanded the case for a new trial after an appeal based on the discriminatory practice by counsel in striking black jurors. The case was remanded because the judge was not present during voir dire and there was no formal record of questioning by either party of the panel of potential jurors. The article discusses the practical applications that the court's ruling will have on the way that state courts handle the process of voir dire if the case is upheld on further appeal. 

The author goes into further explanation on the standards that a party has to show to provide a prima facie case for discrimination. There is an ongoing debate of whether peremptory challenges can be justified based upon employment, age, and socio-economic status. An adopted standard rule of justification for peremptory strikes is important and must be established if an attorney is required to provide race-neutral rebuttal arguments for why jurors may have been stricken. 




1. Carter v. Jury Commission of Greene County, 396 U.S., at 329-330[Back]

2. 937 F.2d 1257 (7th Cir. 1991)[Back]