Peremptory Challenges Challenge Equality

Congress and the courts have outlawed state-sponsored racial segregation in many areas. While the courts have by no means resolved the problem of racism, they have helped to forge a new national opposition to the historic system of American apartheid.

But there was a glaring exception: The U.S. Supreme Court endorsed racial segregation in jury selection, permitting the prosecution in criminal cases to exclude all blacks from juries on the basis of race. This ruling in the 1965 case of Swain vs. Alabama was the law of the land for 20 years until finally it was overturned in April. By reversing Swain in the case of Batson vs. Kentucky, the court closed the book on an embarrassing holdover from the segregation era, but criminal-defense attorneys now wonder whether the new rule will have any practical effect.

Swain and Batson both involved peremptory challenges in the jury-selection process. When attorneys exercise such challenges to potential jurors, they are not required to give a reason and the judge must dismiss the jurors. This distinguishes it from a challenge “for cause,” in which the attorney attempts to persuade the judge that potential jury members have specific biases that will prevent them from being fair. In that case the judge will dismiss various jurors only if the attorney’s arguments are persuasive.

The racial issue in the use of peremptory challenges is built into the system. Many attorneys believe that the jurors’ race is likely to affect their view of the evidence, or, in more malevolent circumstances, that certain racial groups simply could not serve as competent jurors. So it has been common practice in many jurisdictions to use the peremptory challenge to eliminate all potential jurors who are black.

The court considered this issue in Swain in 1965. If the Supreme Court had prohibited racially based peremptory challenges, it would have been necessary for criminal trial courts to hear evidence about the reason for a particular challenge in order to determine whether it was in fact racially motivated. But to require the prosecution to give reasons for a challenge appeared in 1965 to violate the peremptory-challenge concept, which does not require a stated reason.

The court upheld the purity of the peremptory challenge over the rights of black citizens by ruling that all blacks could be excluded from juries regardless of the prosecutor’s motivation. Thus there could be no basis for exploring the prosecution’s motivations for the peremptory exclusion of blacks in a particular case, although it would be open to the defense to show a historic pattern of their exclusion from juries in that community.

A few states, such as California, already had reversed this policy, based on judicial interpretations of their own constitutions. In the last term the U.S. Supreme Court essentially adopted the position that the California Supreme Court took in 1978.

In Batson vs. Kentucky the high court reversed Swain, ruling that a prosecutor may not use a peremptory challenge to exclude black jurors in the belief that their race alone makes them biased. This ruling, which applies only to the prosecution in criminal trials, establishes a test analogous to one used in employment-discrimination cases. But there is reason to believe that segregated juries will continue unless peremptory challenges are abolished.

The problem stems from the court’s procedure for determining if a prosecutor’s challenge is racially motivated. If the defense attorney can demonstrate to the judge that an appearance of racial exclusion exists--several blacks excluded for no obvious reasons, for example--then the prosecutors are given the opportunity to explain their reasons to the judge.

But this explanation does not have to show that there are genuine indications of bias on the part of the potential juror so that the juror should be challenged “for cause.” It is enough to show that the prosecutor has non-racial intuitive feelings, similar to those used in other peremptory challenges, such as the juror never cracked a smile, or that he worked in a similar job as the defendant, or hundreds of other gut reactions of the prosecutor.

In employment-discrimination cases in which the employer has fired a black employee and then says in court that the reason was incompetence, the employee’s attorney can use “extrinsic” evidence to prove that the employer is lying--such as written performance evaluations or testimony from the employee’s supervisor. However, if a prosecutor claims that she challenged a black juror because the juror “never cracked a smile” during questioning, there is no extrinsic evidence available to permit the judge to examine the prosecutor’s real motivation.

The judge will be put in the position of having to use his own highly subjective feelings about the credibility of a state official --the public prosecutor. Judges will be extremely reluctant to conclude that prosecutors have lied in open court--especially when there is no proof, the prosecutor has expressed “legitimate” reasons for the exclusion and the judge may be uncomfortable with this intervention into the privacy of peremptory challenges in the first place.

While there are no statistics on the effect of the 1978 California decision, the system seems to have changed very little. There are few reported cases in which the prosecutor’s peremptory challenges have been overturned because of allegations of racial exclusion.

For this reason Supreme Court Justice Thurgood Marshall has called for the complete elimination of peremptory challenges in criminal trials, arguing that it permits the prosecution to hide racial motives behind race-neutral pretexts. Thus Batson will be remembered for bringing the Supreme Court into a more racially enlightened era. But, as in many other areas of pronouncement by the high court, the practice of unequal treatment will continue to lurk behind a deceptive wall of theoretical equality.