For the past couple weeks, I’ve been in an out of federal court for jury duty. I went in last week, and told them I could serve because of two doctor’s appointments, so they told me to come back this week. I spent two days in court, and after sitting in the jury box for two days, I got dismissed on a pre-emptory challenge, which basically means the lawyers for the state or for the defense were able to dismiss me without giving a reason. Below is a little background on pre-emptory challenges; they are not without controversy, especially with regard to race and gender. I found a nice description from this website. Here is an excerpt:
During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause. Parties also may exercise a limited number of peremptory challenges. These challenges permit a party to remove a prospective juror without giving a reason for the removal.
Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges, however, have become more difficult to exercise because the U.S. Supreme Court has forbidden peremptory strikes based on race or gender.
Parties do not have a federal constitutional right to exercise peremptory challenges. Peremptory challenges are granted by statute or by case law. The number of challenges is usually determined by statute, but some jurisdictions allow the trial court to grant additional peremptory challenges. In federal court each side is entitled to three peremptory challenges. If more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges.
Peremptory challenges came under legal attack in the 1980s. Critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal defendant was also African American because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race. This constituted racial discrimination and a violation of the Fourteenth Amendment’s equal protection clause.
The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor’s peremptory challenge. The prosecutor then must “come forward with a neutral explanation for challenging black jurors.” If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror.
The Court extended this holding in criminal proceedings in two later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror in order to successfully challenge the juror’s exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the Court held that the defense’s exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospective jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect.
The Supreme Court has also forbidden peremptory challenges based on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that are prejudicial and based on historical discrimination. No overriding State Interest justified peremptory challenges on the basis of gender. Permitting gender-based strikes could also have undermined the Batson holding, because gender might be used as an excuse for racial discrimination.
In an extension of Batson, the Supreme Court of Connecticut ruled that the Equal Protection Clause barred the prosecutor from striking prospective jurors based on their religious affiliation. The court, in State v. Hodge, 726 A.2d 531 (Conn.1999), distinguished religious beliefs and religious affiliations. It held that litigants could strike prospective jurors whose religious beliefs would prevent them from performing their duties as jurors.
Functionally, this is a VERY hard winning standard. It doesn’t have to be a compelling explanation, or an explanation that’ll satisfy the jury. It just has to be a neutral explanation. What happens is that prosecutors–funny thing!–seem to just so happen to have neutral explanations ALL THE TIME. Batson challenges are rarely successful.
My mom informed me in high school, based on her experiences, because I am a college educated woman I will basically never have to serve jury duty. I will always be magically dismissed. Thus far, the only times I’ve been called for it have been when I was out of the state, so I haven’t had this experience yet.
What constitutes a neutral reason, anyway?
Your mother is wrong. My wife has a college degree and she served a few months ago on a jury for 3 weeks in a civil dispute. Basically, someone was injured on a job site, and the issue was how much responsibility was due to the injured person, how much was due to the person driving the vehicle that injured them, how much to the owner of the job site, and who would have to pay how much. Very complex. After the trial, the judge told them it was one of the best jobs she’d seen any jury do in such a case.
I’ve been to five hearings on Wheeler-Baston challenges on cases sent back to their trial courts by the Court of Appeals and two had their convictions vacated. The excuses given by prosecutors for kicking off Black jurors can be very creative.
Oh, I kicked off this Black juror because he’s a postal worker and you know, they’re highly stressed and because of them, we have the term, postal.
Then he seats a White juror who works in the postal system.
Or, social workers are “bleeding hearts” who defend the underdog, about a Black juror who’s a social worker.
Then seats a White social worker.
The judge denied the four Wheeler-Baston motions but the Court of Appeals sends it back and the convictions of four defendents are overturned.
Btw, the national postmaster was so furious when he heard about the remarks about postal workers he sent an angry letter to the D.A.’s office.
laura,
I think at one point in time your point about being college educated (having an undergraduate degree) would be true, but I don’t think that is true anymore.
The case I was on was really complicated, and it included numerous defendants. They must have gone through 100 jurors, and the majority of them had college degrees. They ended up keeping several college educated people. I think I college education doesn’t mean as much as it did in the past.
I think it probably still does apply to PhD’s and people with some types of Master’s Degrees, but not a BA.
Yeah, I think this is incredibly easy to get around. I watched carefully to see the race of the people they dismissed in this case.
Here’s what was interesting to me (keep in mind I watched approximately 100 jurors come and go over a 2 day period):
In the beginning the jury pool was much whiter, but after the dismissals for cause it became much more diverse. It was very clear that whites, especially those with more education or higher paying jobs, were much more likely to be proactive in trying to get themselves dismissed (which was funny because the judge just sent them back down to be seated on another jury). Keep in mind I know their class because they often used their jobs as excuses, and at some point the judge asked questions about jobs and education levels. There appeared to be a clear interaction with race and class that ended up making the jury much more racially diverse and less educated by the time we reached the final 42 jurors, which was the point at which the defense attorneys and prosecution were able to make their pre-emptory challenges. I thought this was an ironic twist given the fact that all of the defendants were people of color, and I knew at that point that they couldn’t possibly dismiss all of the people of color.
If I remember correctly, there were 2 black jurors left, 2-3 Asians, and 2 Latinos. This was out of either 18 or 20 jurors for the final trial.
laura – it depends on where you live. my mother lives in a suburban county where there just aren’t that many trials and she always gets bumped because she’s married to a lawyer who practices in the county. I live in NYC, where even being a lawyer who practices in the city doesn’t automatically mean you won’t be seated on a jury. It also depends on the personal preferences of the attorneys. I know DAs who prefer educated jurors because they find it easier to explain their case to them.
sailorman – you’re right about the prosecutors, but defense and plaintiff’s lawyers (in civil cases) do exactly the same thing when it helps them
My sister served on a criminal tax case jury and she was college educated. But anyway, the likelihood that you will serve on a jury depends largely on the size of the jury pool. Believe me, in the District of Columbia there is a good chance that any given jury will have not only college but law school graduates serving. If you started trying to disqualify them judges would be breathing down your neck as an attorney — it’s hard enough to empanel juries without disqualifying people for “sociological” reasons. For instance, people with convictions are often excluded by law — so there are a whole lot of people who already can’t serve. When you add the legitimate reasons (nursing mom, severe medical conditions), personal contacts (knows the lawyer or the party or the witnesses), you whittle down the pool really fast.
When I was in law school, small southern city, not only did one of my professors serve on the jury, but the dean of the law school was on the same jury. I guess the lawyers figured that if you had one prof he would dominate, but two would cancel each other out. Or something like that.
The really insidious “selection” that takes place usually occurs in places with reasonably large jury pools.