Whither Peremptories Part Deux

In his post earlier this week, my colleague, Lawrence Friedman, highlights Chief Justice Margaret Marshall’s concurrence in Commonwealth v. Rodriguez, where she ponders whether it is time to either eliminate or further restrict the use of peremptory challenges. The use of peremptory challenges, particularly by the prosecution in a criminal case against members of a cognizable group, certainly can create all kinds of mischief.

The fear, of course, is that the prosecution will use these challenges to eliminate members of a minority race from the jury. This problem is particularly acute when there are few minority members on the jury venire and when they share the same racial or ethnic background with the defendant. The Supreme Court sought to address these concerns in Batson v. Kentucky. There the Court created a three-step burden shifting mechanism whenever the prosecutor uses a peremptory challenge to eliminate a member of a cognizable group.

First, the defendant must show that he or she is a member of a cognizable racial group and that the prosecutor has used the peremptory challenge to remove members of the jury that share the defendant’s race. If this is established, the defendant is entitled to the irrebuttable presumption that the exercise of peremptory challenges constitutes a practice that permits those who are of a mind to discriminate to do so. Finally, the defendant must show that these facts and circumstances raise an inference that the prosecutor used the peremptory challenge to exclude the venireman from the petit jury on the account of the venireman’s race. Once this prima facie showing is made, the burden shifts to the prosecution to show there was a race-neutral reason for exercising the peremptory challenge against the veniremen.

Some have contended that requiring the prosecutor to articulate a race neutral reason for the challenge effectively eliminates the prosecutor’s peremptory challenge of racial minorities. However, experience, and subsequent Supreme Court opinions have shown that, even after Batson, the prosecutor’s peremptory challenge is alive and well and prosecutors intent on using the peremptory challenge to eliminate jurors based on race often can convincingly mask their reasons.

Perhaps what Chief Justice Marshall laments is that it is still all too easy for the prosecution to do an end-run around the Baton protections. In looking for ways to enhance these protections, Chief Justice Marshall would do well to consider two additional Batson enhancements found in the military context.

First, the military has eliminated the requirement that the defense make a prima facie showing of discrimination. Under military legal precedent, if the defendant is a member of a cognizable group, whenever the prosecution exercises a peremptory challenge against a member of the defendant’s race, upon objection by the defense, the prosecution must articulate a race neutral reason for the challenge. In essence, any time the prosecution uses a peremptory challenge to eliminate a cognizable member of the defendant’s racial group the presumption of improper motive exists. This automatic presumption alone forces the prosecution to think long and hard about the way they exercise peremptory challenges.

Second, the prosecution’s race neutral reason must not only be genuine, it cannot be unreasonable or implausible. This requirement that the race neutral reason be both reasonable and plausible is a departure from the Supreme Court’s holding in Purkett v. Elm, which only requires the prosecution’s reason to be genuinely not racially motivated. The problem with that approach, of course, is that racial motivations can easily be masked by seemingly genuine but implausible reasons. Accordingly, military case law imposes this further restriction on the prosecutor’s claimed race neutral reason to help prevent an end run around Batson’s requirements.

It seems to me that these additional protections strike a fair balance and preserve the legitimate use of peremptory challenges and they provide valuable guidance to courts seeking to give real meaning to Batson’s protections—all of which may alleviate Chief Justice Marshall’s concern that the process of discovering Batson violations is too time-consuming to make it worthwhile.

Victor Hansen