ITC Quarterly - July 1999
Bad Strike: Jury Selection Has Become Responsive
to Everybody's Rights
By David Island and Daniel P. Westman
Published in the Los Angeles Daily Journal, July 1999
Jury selection in civil litigation was significantly altered in April 1994 when the Supreme Court of the United States decided J.E.B. v. Alabama ex rel. T. B., ___ U.S. ___, 114 S. Ct. 1419 (1994). The J.E.B. court extended to gender its earlier watershed decision in Batson v. Kentucky, 476 U.S. 79 (1986), which held that a prosecutor may not utilize peremptory challenges in order to exclude African Americans from the jury solely on account of their race.
Between 1986 and 1994, several lower court decisions expanded the scope of Batson to include all races, Hernandez v. New York, 500 U.S. 352, 11 S. Ct. 1859 (1991); United States v. Chalan, 812 F. 2d 1302, 1312-14 (10th Cir. 1987), all parties in a litigation, and civil as well as criminal proceedings, Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614, 111 S. Ct. 2077 (1991). New rulings further clarified that a criminal defendant need not be of the same race as the excluded juror, Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364 (1991). Religion, socioeconomic status and place of residence have also been used to determine if an individual juror is in a cognizable group against which a discriminatory peremptory challenge is asserted, U.S. v. Santiago-Martinez, 94010350 (1995); Pemberthy v. Beyer, 92-5633; Davis v. Minnesota 93-6577; People v. Ramsbersed 6000/93; U.S. v. Somerstein 96-657. Ironically, petitioner J.E.B. was a white male. Thus, white men, who have never suffered systematic discrimination in the United States, are now a protected group.
J.E.B. philosophically reframes the jury selection issue. The court's opinion (with the exception of Justice Antonin Scalia's scathing dissent) reads as a jurors' rights manifesto. It avers and affirms that every citizen has the right to sit as a juror and must not be excused without good reason. Consequently, J.E.B. addresses not only the rights of parties but also forbids discrimination targeted at jurors.
This is a departure from prior law, which held that standing to raise the issue of a peremptory strike based on bias turned upon the race or gender of the party. See, e.g., Batson. Some cases had held that corporations could not raise Batson issues because corporations have no race or gender, Dias v. Sky Chefs, Inc., 948 F.2d 532 (9th Cir. 1991). Now corporations are just as able to raise Batson issues as any party because of each juror's right not to be excluded for prohibited reasons, J.E.B.
The downstream consequence of Batson and its progeny, generally speaking, has been to force the court system's procedures to mirror the advancement of civil rights generally in the United States as won by special cognizable groups and, ironically, as bestowed by those very courts. It could be just a matter of time before other cognizable characteristics, such as sexual orientation, obesity, religion, illiteracy, or disability, to name a few, win similar legal protection. Already by the summer of 1998, individual judges and lower courts have ruled to include such groups under the protective umbrella of both Batson and J.E.B., People v. Turner, 42 Cal.3d 711 (1986), cert. denied, __ S. Ct. ___, 1995 WL36640; United States v. Bishop, 959 F.2d 820 (9th Cir.1992).
These developments in the law are very important to all litigating attorneys and to the trial consultants who assist them. Every trial attorney should be familiar with the three relevant U. S. Supreme Court decisions: Batson; J.E.B.; and Purkett 1995 U.S.W.L. 283453. In Purkett, the court applied the 3-step Batson test (see below) and held that the prosecution's explanation was race neutral. Also, practitioners should read the California equivalent to Batson, People v. Wheeler 22 Cal.3d 258 (1978). Reading Georgia v. McCollum (505 U.S. ___ 112 S. Ct. 2348-2359 (1992), which held that the Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the grounds of race in the exercise of peremptory challenges is also recommended. Every member of the trial team needs to be up-to-date on these landmark jury-selection decisions.
Trial attorneys should also read the thoughtful current discussion on the subject by Abbe Smith, "Nice Work If You Can Get It": "Ethical" Jury Selection in Criminal Defense, 62 Fordham Law Review, pp. 523-568, November 1998, Number 2. Ms. Smith argues that "it is unethical for a defense lawyer to disregard what is known about the influence of race and sex on a juror attitudes in order to comply with Batson v. Kentucky and its progeny" (p. 531). She believes that the new ethics of expanded prohibitions against using peremptory challenges on certain cognizable group members "is at odds with other long standing and controlling ethical obligations of criminal defense lawyers" (p. 531).
Because J.E.B. challenges are on the rise, every trial attorney needs to be alerted to their potential and be skilled in how to handle them. Attorneys must avoid an unwitting (and illegal) use of discriminatory peremptory challenges and be ready to challenge the other side if they illegally use their strikes. Attorneys should know the standard for challenging the other side's discriminatory use of peremptories and for successfully defending against such a challenge.
The U.S. Supreme Court in Purkett, specified a three-step procedure required for a proper challenge. A Batson objection triggers a three step test which provides that (1) the opponent of a peremptory challenge must make a prima facie case of racial discrimination; (2) the burden of production then shifts to the proponent of the strike to come up with a race neutral explanation; and (3) if a race neutral explanation is given, the court must then decide whether the opponent of the strike has proved purposeful discrimination.
There are two main remedies, if the opponent ultimately wins the challenge at step three. First, the illegally struck juror(s) can be reinstated onto the panel, People v. Wheeler. Second, the entire venire can be dismissed with jury selection starting over, Id. Other remedies include the loss of further peremptory challenges by the proponent of the improper challenge(s), or additional peremptories given to the opponent, Id.
By merely raising a challenge to the other side's discriminatory use of peremptory strikes at certain points (say, after your opponent's fourth strike), an attorney will likely change the behavior of the opponent, who will now be loathe to continue striking prospective jurors similar to those to whose removal the attorney objected. Thus, a major strategic victory can be won because raising the challenge of discrimination will change the strike strategy of the opponent.
Voir dire assumes an even more prominent role in jury selection today. An attorney cannot develop a good reason to strike a juror, obviously, if he or she has not asked sufficiently broad and case-relevant questions of each juror. Such a turn of events is ironic in view of another set of pressures applied recently to trial attorneys by judges in an effort to speed up jury selection. With the overabundance of cases proceeding to trial and pressure from the legislature and public on the courts to be more efficient, many judges are shortening the time allowed for voir dire, discouraging attorney-conducted voir dire, and hurrying the process of making strike decisions. Thus, in deciding to strike a prospective juror without enough information, an attorney may have to rely on cognizable group stereotypes, and, as a consequence, illegally remove a juror.
As a result of these developments, using a written jury questionnaire is a good strategy to employ in most civil cases. Jury questionnaire information can help to avoid the discriminatory use of peremptory challenges. Written jury questionnaires provide consistently reliable and uniform information about each juror and also can speed up the jury selection process.
For all practical purposes, the peremptory challenge may have lost its raison d'etre. That is, before Batson and J.E.B., the trial lawyer did not need a reason to exercise a peremptory challenge. The attorney could remove a prospective juror for no reason at all, or for some private, even bigoted, reason. And the lawyer didn't have to tell anyone what the reason was. Now, it is illegal to use a peremptory strike against a prospective juror solely because of the juror's race or gender. And race and gender, as cognizable group categories, are just the beginning. Jury selection has become responsive to everyone's rights.
David Island, Ph.D., is a trial consultant with Island Trial Consulting in San Francisco.
Daniel P. Westman is a partner at Shaw Pittman LLP in McLean, Virginia.
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