In the United States of America the prosecution and defence take part in a jury selection process for criminal and civil trials. In capital murder cases this can take weeks, even months, and is often a very tactical and important part of winning the case for both sides. During the jury selection process, in which 12 jurors will be chosen, both parties may remove potential jurors using an unlimited number of challenges for cause, for reasons such as bias, and a limited number of peremptory challenges, for which you do not need to provide a reason.

I had the opportunity to attend a lecture this week with speakers including private and public defence attorneys, a Senator and a Judge. The subject of the lecture was the case of Batson v Kentucky 476 U.S. 79 (1986), a case in which the prosecutor used his peremptory challenges to remove all four African Americans from the jury pool. The defence challenged the removal of these jurors as violating the petitioner’s right to an impartial jury and the equal protection clause of the 14th Amendment to the Constitution. The jury convicted the petitioner for burglary and receipt of stolen goods. On appeal, the Supreme Court held that the state is not permitted to use its peremptory challenges to automatically exclude potential members of the jury because of their race. The court said:

“The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.”

This decision has allowed for prosecution or defence to make a ‘Batson challenge’ during a trial if it is believed that a juror has been removed due to their race. This has now been extended to include gender, however, it does not extend to religious views, sexual orientation or age. I raise these specifically as they are ‘protected characteristics’ under the Equality Act 2010 in the UK.

The judge that spoke at the lecture commented that in his three years of sitting he has never had a Batson challenge made before him and he attributed this to two things; the first is that attorneys do not know how to make a challenge and the second is that jurors are more forthcoming in their views and are therefore struck out for other reasons than race. Another speaker commented that when a Batson challenge is raised, whether you are black or white, awkwardness and embarrassment can descend on the courtroom. I was fascinated to hear that race can still create such a divide in cases and it is still a taboo even amongst professionals; that an attorney may not act in their client’s best interests because they are worried about appearing discriminatory themselves or offending their opponent. From what I have observed, the jury selection process can result in difficult and biased decision-making and I would advocate that it is not a fair process. However, if it is to remain (which is very likely) then it would seem only fair to the petitioner and the jurors that peremptory challenges are disregarded and only challenges for cause remain.

See more on Alice's blog.