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  • Writer's pictureLeslie A. Farber

Peremptory Challenge and Race

Updated: Jul 3, 2019

Peremptory challenges often are used to shape the racial makeup of a jury even though this is illegal. A Peremptory Challenge means that both the defendant and plaintiff (or prosecutor in a criminal case) can have someone removed from a potential jury without stating a reason. The number of peremptory charges varies from state to state and whether it’s a civil or criminal trial. These challenges are different from a challenge “for cause.” which is when there is a stated reason (for example, the potential juror is related to the defendant, or the same thing happened to the potential juror’s sister, etc.). Both types of challenges are tools lawyers use to try and select a jury they believe will be sympathetic to their side.

Peremptory challenges have a long legal history dating all the way back to Roman times. They continued under English common law and remained unchallenged until the twentieth century. The problem with peremptory challenges is that many times they are used to remove minorities from juries. A challenge to the use of peremptory challenges found its way to the U.S. Supreme Court thirty years ago.

In 1984, James Batson, an African American man, was convicted of burglary and receipt of stolen goods by an all-white jury. He appealed to the Kentucky Supreme court claiming the prosecutors use of peremptory challenges eliminated all the black jurors violated his rights to a fair trial by a cross section of the community as guaranteed by the Sixth and Fourteenth Amendments. The Kentucky Supreme Court disagreed with his argument and affirmed his conviction. Batson continued his appeal and the case, Batson v. Kentucky, was heard by the U.S. Supreme Court in 1986.

The Supreme Court ruled in Batson’s favor and said that prosecutors cannot dismiss potential jurors because of race, sex or ethnicity. The Court also held that, while a defendant has no right to a jury composed in whole or part by his own race, he is denied equal protection when he is put on trial before a jury from which members of his own race have been purposely excluded. As a result of this ruling, an objection to the validity of a peremptory challenge based on race is now known as a Batson Challenge.

In May of this year, the Supreme Court ruled on this issue again. In this case, Foster v. Chapman, Timothy Foster was accused of murder and robbery. During jury selection, the prosecutor used his peremptory challenges to remove all four black prospective jurors. Foster challenged these strikes as racially motivated; but the trial judge dismissed the challenge and Foster was convicted of murder.

Foster appealed, and during the process submitted a freedom of information request. Among the documents he received were the documents the prosecution had used during the jury selection process. These documents showed that the prosecution had blatantly used race to exclude potential jurors - prosecutors highlighted the names of black would-be jurors, circled "black" where it was marked on questionnaires to show the potential juror's race, and labeled them "B#1," "B#2," and "B#3." They also ranked the potential black jurors, preparing for the situation in which "it comes down to having to pick one of the black jurors."

In spite of this evidence, the Georgia Supreme Court rejected Foster’s Batson Challenge, saying he had failed to show intentional discrimination. The U.S. Supreme Court disagreed and overruled the Georgia Supreme Court by a vote of 7-1. It said the Georgia court’s finding that Foster had failed to prove purposeful racial discrimination was “clearly erroneous” and "the focus on race in the prosecution’s file plainly demonstrates a concerted effort to keep black prospective jurors off the jury,". The Court ruled that Foster was eligible to have his Batson Challenge reevaluated. This ruling could open the door for other defendants in similar situations to have their Batson claims re-evaluated.

The contents of this writing are intended for general information purposes only and should not be construed as legal advice or opinion in any specific facts or circumstances.

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