Source of the following article Persuasive Litigator.

By Dr. Ken Broda-Bahm: 


Once, as I sat in a courtroom getting prepared to assist in picking a jury, the lawyer I was working with leaned over to say, “Make sure you have some reasons for strikes written down that we would be able to show the court.” My reaction? “Of course. All of my reasons would be reasons that I would be willing to show the court.” Thankfully, the attorney’s response was, “Good.” Although I am sure it happens, in all the jury selections I’ve been involved in, I’ve never recommended or had someone recommend to me that a potential juror should receive a peremptory strike due to their race. And the law says, that’s how it should be. Not just the law, but social science as well: Demographic characteristics like race, age, or gender might be visible and obvious, but they aren’t terribly predictive of bias. Despite that, there has been a long-running concern over the use of racially-based strikes, particularly in criminal cases and particularly by prosecutors. The well-known compromise forged in the 1986 case of Batson v. Kentucky appears to be outliving its usefulness, at least in the eyes of many judges and legal commentators. Based on the Batson process, where one side is able to make a prima facie showing of a prima facie case that one or more peremptory strikes are based on racial bias, the other side has to show a race-neutral reason for their strike or strikes. The conventional wisdom, however, is that this process fails at two levels because judges often don’t see a prima facie case, and even when they do, it is easy for the striking party to come up with just about any neutral reason.

The result of the perceived popular failure of Batson is that the long-simmering distrust of peremptory challenges is now at risk of boiling over. In a recent case before the Supreme Court of Washington State, a majority concurred in lowering the standard for the prima facie case (to the point that striking the last member of any cognizable racial group now presumptive creates a prima facie case), and have called for a working group to create new rules for addressing bias outside of the Batson framework. Two judges, Mary Yu and Steven Gonzalez, went further, and joined in calling for “the complete abolishment of peremptory challenges.” Justice Gonzales said, “The use of peremptory challenges contributes to the historical and ongoing underrepresentation of minority groups on juries, imposes substantial administrative and litigation costs, results in less effective juries, and unfairly amplifies resource disparity among litigants — all without substantiated benefits. The peremptory challenge is an antiquated procedure that should no longer be used.” The criticisms and benefits of peremptory strikes can be addressed, and abolition (even in the many, many cases where race is not an issue) seems grossly overbroad. But in this post, I want to take aim at the assumption that Batson cannot work because it is too easy to come up with a pretextual race-neutral reason. It strikes as odd that within the field of law, a cathedral to the idea of persuasion through logical argument, we fear that the process simply cannot tell the difference between a reasonable basis and a wholly made-up rationale. I think it can. And further, I think that if that is what it takes to reduce the reality and the perception of biased use of peremptories, any lawyer and any consultant working with that lawyer should be prepared to defend the basis for their strikes when called upon.

The Case

Adding to many other criticism of peremptory strikes, the opinion comes from the Supreme Court of the State of Washington, City of Seattle v. Erickson. The case involved a black man charged with unlawful use of a weapon and resisting arrest who argued for a new trial based on the prosecutor’s use of a peremptory challenge to excuse the only black juror from the panel. The original trial court rejected the Batson challenge from the Defense, so the prosecutor was not required to provide a race-neutral reason. The Washington Supreme Court decision amended the Batson analysis, holding that a strike of a juror who is the only member of a cognizable racial group, itself is a prima facie showing of discrimination requiring a full analysis by the court.

At the same time, the court opened up the first step in Batson, they also shared their lack of faith in the second step. In a concurring opinion, Justice Stephens argued that even if the trial court had recognized the Defense’s prima facie case of discrimination, all that would have done is require the prosecutor to come up with a race-neutral reason, which they probably could have done. “We are unlikely to see different outcomes,” Justice Stephens writes, “unless courts are willing to more critically evaluate proffered race-neutral justifications in future cases.”

Better Reasons

That line prompted the thought, what would it look like for courts to more critically evaluate the race-neutral justifications that are offered? Beyond just testing whether the willingness of a prosecutor to stand, with a straight face and as an officer of the court, and to identify to the judge a reason other than race, evaluation should focus on whether using the strike is providing a sound reason and not just an alternate basis for a strike. 

In the Erickson case, the opinion uses the example of a case involving a hispanic defendant where the prosecutor’s offered reason for striking a hispanic potential juror was not that the juror was hispanic, but that the juror was bilingual. Without knowing more about that case, it is impossible to discern what being bilingual would have to do with bias against the state in that case, but it is reasonable to expect that any court looking at a reason like that would be able to ask three things and not just one: 

What is the reason for the strike? (The race-neutral basis). 

Why does that increase the risk of bias? 

How do you know that? 

Of course, it is still a peremptory and not a cause challenge, so defeating the argument that it is based on race should not require proving that bias is present, and also should not involve a judge substituting her own views on the merits of a strike for the party’s views. But, in my view, it is not going too far to ask for the basis and not just the claim when it comes to a race-neutral (or age-neutral, gender-neutral, etc.) reason. Experienced attorneys or trial consultants (who should also be able to speak to the court during these inquiries) should be able to provide that basis, or they should not be making that particular strike. 

So, imaginatively applying that to the idea of a bilingual juror, the judge’s inquiry and response might go something like this: 

What is the reason for the strike? 

Juror 12 is bilingual, your honor? 

Why does that increase the risk of bias? 

Several of the witnesses in this case will be testifying in Spanish and will be translated into English. A person on the jury who is fluent in both languages could find it irresistible to have their own views on what the witness ‘really’ said, and that could put this juror into the role of an ‘expert’ to the other jurors on the panel. 

How do you know that? 

We have seen it in other cases, and it stands to reason that a person cannot simply ‘shut off’ their ability to understand another language. 

Whether that reasoning would justify the strike would depend on the case and the judge. But the point here is that a belief that the second stage of Batson is ineffectual depends on the belief that reasons cannot be scrutinized by a court — and that is an odd belief for our legal system to have. When there is a reasonable basis for believing that strikes are following a racial pattern, trial lawyers should absolutely not shy away from providing a good reason, and that means going beyond a one-liner throwaway rationale.  


Other Posts on Peremptory Strikes: 


Image credit: By the author.