Who Can You Strike from a Jury?
The most important point to learn is whether the prospective juror is humane. This must be discovered in more or less devious ways. As soon as "the court" sees what you want, he almost always blocks the game. Next to this, in having more or less bearing on the question, is the nationality, politics, and religion of the person examined for the jury. If you do not discover this, all your plans may go awry.
- Clarence Darrow, “How to Pick a Jury” (1936).
We’ve written before about Batson v. Kentucky, [1] the Supreme Court case prohibiting parties from striking potential jurors because of their race. While attorneys are typically permitted to use so-called “peremptory challenges” to strike a set number of potential jurors without offering any explanation, Batson established a process to challenge those strikes where it appears that race is the motivation.
But even racist attorneys are not foolish enough to admit to striking jurors because of their skin color. So, under Batson, we have a process where a judge asks the attorney “Did you strike that juror because of race?” and the attorney replies “No, of course not, I struck the juror because of X.” And before the court can reject the strike, it must essentially conclude that the attorney has told a wildly implausible lie.
So how is this going? Not great. In 2022 the state of Arizona concluded that the process of evaluating strikes was so unworkable that it was better to get rid of strikes entirely rather than try to reform the system. Alternatively, several other states, following the example of Washington State, have adopted more stringent rules for evaluating strikes than Batson requires. These rules generally shift the burden of proof to the striking attorney to demonstrate that he or she is not discriminating or permit the court to overrule a strike where there is an “appearance” of bias – that is, without a literal finding that an attorney is a lying racist.
But the talk of burdens and standards obscures a more fundamental question. Who are you allowed to strike from a jury? And what precisely is the purpose of the exercise?
Following Batson, the Supreme Court expanded the scope of its prohibition in several key cases. In Hernandez v. New York, [2] the court held that factors associated with “ethnicity,” and not merely literal “race” were impermissible bases for a strike. A few years later in J.E.B. v. Alabama, [3] the Supreme Court added gender as an impermissible basis for a strike. Notably, J.E.B. was not about discrimination against women – rather the state in that case had used nine of its ten strikes against men to ensure an all-female jury. Why? It was a paternity case seeking to hold a deadbeat dad accountable for child support.
If you’re versed in antidiscrimination law, you might assume that all of the typical protected characteristics would swiftly follow. After all, if you can’t do something on the basis of race or gender, you usually cannot do so because of age, religion, disability, veteran status, etc. But when it comes to jury selection, that’s not quite right.
Take religion. If you refuse to hire someone because of their religious affiliation (and have 15 employees), that’s usually a fairly clear violation of Title VII and similar state and local antidiscrimination laws. But the Supreme Court has never held that striking a juror based on their religious beliefs is prohibited. And while some lower courts have, the decisions are often more nuanced than you might expect.
Consider United States v. DeJesus. [4] In that case, federal prosecutors in New Jersey tried a defendant for illegal possession of a firearm. In picking a jury, the prosecutors struck two black men from the panel. When challenged about the strikes, the prosecutors explained that they had struck the men because they had strong religious beliefs. One of the men was a deacon in his church who taught Sunday school and had multiple religious degrees. The other was an officer and trustee of a different local church whose only hobbies were church activities.
The trial court accepted the explanation and rejected the challenge. On review, the defendant argued that even if the prosecutors were telling the truth, that excluding jurors because of their religious beliefs would be unconstitutional under the logic of Batson. The Court of Appeals for the Third Circuit saw it somewhat differently:
Because we affirm the District Court's finding that the government's strikes were based on the jurors' heightened religious involvement rather than their religious affiliation, we need not reach the issue of whether a peremptory strike based solely on religious affiliation would be unconstitutional. Bates and McBride did not state their religious affiliations during voir dire. Of course, it is certainly fair to infer, as DeJesus has done on appeal, that the jurors are Christian based on their questionnaire responses. But the government did not refer to the religious affiliation of either juror in articulating its reasons for striking Bates and McBride. Instead, the government said that their unusual amount of religious activity suggested strong religious beliefs, which could prevent them from convicting the defendant. The District Court agreed, stating that: “faced with a prospective juror whose answers to neutral questions regarding hobbies, pastimes, reading materials, television programs and the like reveal a rather consuming propensity to experience the world through a prism of religious beliefs, it is rational for a prosecutor to act upon the concern about the reluctance to convict.” [5]
Several other courts have drawn a similar distinction, between striking a juror based on “religious affiliation” and striking a juror based on “religiosity.” [6] But while there is a logic to this reasoning, as a legal standard it seems fairly unworkable. Some denominations have, by their very nature, more “religiosity” than others. A potential juror who is Hassidic or Amish is highly unlikely to describe themselves as “non-practicing” or “mildly religious.” And even among faiths with more diversity in adherence, the line between being “affiliated” with a faith and being “religiously involved” is extremely arbitrary. Claiming that “religiosity” rather than “religion” is the basis for a strike is a bit like saying “no I didn’t strike the juror because he was Black; I struck him because he’s particularly involved with Black folks.” As a result, the courts are mixed on the issue, with some states holding that jurors cannot be struck based on their religious beliefs, others holding that they can, and still others, like the Third Circuit, coming out in the “well, maybe sometimes” camp. [7]
So, if race and gender are out and religion is a maybe, what categories are fair game for peremptory challenges? Federal courts have rejected Batson-like challenges to strikes based upon living in a city, being a college student, being a young adult, being a blue-collar worker, or having “less education” than others on the panel. [8] In a remarkably comprehensive survey of Batson challenges between 1986 and 1993, Professor Melilli at Albany Law School identified sixteen categories of “non-discriminatory justifications” that were most frequently accepted by the courts:
Prior Involvement with Criminal Conduct or Litigation
Behavior During Voir Dire
Possession of Extrajudicial Information or Bias
Difficulty Following Instructions
Age
Employment or Training
Economic Characteristics
Family Situation
Education and Intelligence
Location of Home, Workplace or Other Activities
Incapacity
Personal Appearance
Prior Jury Service
Gender
Miscellaneous Characteristics
Neutral Explanation Did Not Involve Any Objection to the Challenged Venireperson [9]
Of these, gender is an artifact of the period prior to the J.E.B. v. Alabama decision. But the other explanations are likely to still find use today. On matters like “behavior during voir dire” Professor Melilli further broke down the categories in a way that is also illuminating:
Inattentive
Wished to Avoid Jury Service
Hostile Toward the Lawyer Who Later Exercised the Challenge
Responsive to Opposing Lawyer or What Opposing Lawyer Said
Timid
Unfavorable Impression
Inattentive to Lawyer Who Later Exercised Challenge
Strange
Friendly Toward Opposing Party
Answered No Voir Dire Questions
Assertive
Gave Vague or Evasive Responses
Liberal or Lenient
Eager to Serve
Emotional [10]
While it’s hard to imagine trying to defend against a Batson challenge by saying “Yeah, but Judge, he was strange,” I have a certain sympathy for the explanation. Some really weird folks show up to voir dire. Ideally you want to make your strikes based on thorough questioning of the panel, but if you’re starved for information, “seems really strange” is probably at least as good a predictive category as “he’s a postal worker.”
In a somewhat similar fashion, the New York State courts published guidance on Batson challenges in 1996, listing explanations that courts should consider legitimate and explanations that should be considered as likely pretext for discrimination. On the legitimate side:
(1) the juror's having a job that is police-related;
(2) the juror gives inconsistent statements regarding his or her leanings;
(3) prior criminal jury service by the juror;
(4) the juror's familiarity with the defendant;
(5) the juror's familiarity with the crime scene;
(6) the juror's statement that he or she cannot be fair;
(7) the juror is employed in a creative field;
(8) the juror's lack of mental capacity;
(9) the juror's criminal record;
(10) the juror's membership in a sympathetic religion;
(11) the juror's knowledge of the language that is to be interpreted;
(12) the juror's expressed disapproval of the defendant not testifying;
(13) the juror's tardiness;
(14) the juror's related expertise;
(15) the juror's equivocal attitude about having been assaulted;
(16) the juror's displeasure concerning past dealings with the police;
(17) the juror's friendliness with a policeperson. [11]
And on the pretextual side they include:
(1) the juror's employment;
(2) the juror's being an employee in a hierarchical company;
(3) the attorney's concern for a balanced jury;
(4) the juror's living in the same or an adjacent community;
(5) the juror's being too old or too young;
(6) the attorney's lack of time to question the juror;
(7) the attorney's belief that the juror would not be fair;
(8) the juror's lack of strength;
(9) the juror's clothing, where other juror's clothing was not an issue;
(10) the attorney's general reassurance that the strike was in good faith;
(11) the attorney's feeling that the juror “did not appeal” to him or her. [12]
This list received a fair amount of criticism, notably from Judge Motley in the Southern District of New York, who characterized it as a “how-to guide” for prosecutors looking to evade Batson challenges. [13] While pointed, this criticism may be close to the mark. For example, prosecutors in North Carolina were found to be literally using a pre-typed “cheat sheet” titled “Batson Justifications” with things to say if asked why they were striking black jurors. [14]
Obviously, you should not strike jurors because of their race, either as a legal matter or a trial strategy. But at the end of the day, what is the purpose of the exercise? What is your goal in culling potential jurors from the pool? In this, I can do no better than Clarence Darrow in his 1936 essay, “How to Pick a Jury.”[15]
The litigants and their lawyers are supposed to want justice, but in reality there is no such thing as justice, either in or out of court. In fact, the word cannot be defined. So, for lack of proof, let us assume that the word "justice" has a meaning, and that the common idea of the definition is correct, without even seeking to find out what is the common meaning. Then how do we reach justice through the courts? The lawyer's idea of justice is a verdict for his client, and really this is the sole end for which he aims.
[1] 476 U.S. 79 (1986).
[2] 500 U.S. 352 (1991).
[3] 511 U.S. 127 (1994).
[4] 347 F.3d 500 (2003).
[5] Id. at 510.
[6] See, e.g., State v. Fuller, 356 N.J.Super. at 812 A.2d 389, 397 (N.J. App. 2002) (finding permissible a peremptory strike based on prosecutor's inference from juror's traditional Muslim clothing that juror was religiously devout and therefore likely to be defense-oriented); State v. Purcell, 18 P.3d 113, 122 (Ariz. App. 2001) (holding strike constitutional because it was based on juror's personal beliefs rather than religious affiliation); Card v. United States, 776 A.2d 581, 594-95 (D.C.Ct.App.2001) (finding strike based upon inferred allegiance to Louis Farrakhan related to a “genuine race-neutral concern regarding the potential juror's desire to hamstring any possible conviction.”).
[7] Thomas Marten, Politics, Religion, and Voir Dire, 68 Drake L. Rev. 723, 747 (2020).
[8] Vivien Toomey Montz ; Craig Lee Montz, The Peremptory Challenge: Should It Still Exist? An Examination of Federal and Florida Law, 54 U. Miami L. Rev. 451, 462 (2000).
[9] Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges, 71 Notre Dame L. Rev. 447, 485 (1996).
[10] Id. at 488.
[11] Minetos v. City Univ. of New York, 925 F. Supp. 177, 184 (S.D.N.Y. 1996)
[12] Id.
[13] Id. at 184-85 (“listing in this manner has the unfortunate effect of creating a how-to guide for defeating Batson challenges. Such guidelines do not ensure that juror strikes are not racially motivated—only that advocates are on notice of which reasons will best survive judicial review”).
[14] You can see it online at: https://www.aclu.org/cases/north-carolina-v-tilmon-golphin-christina-walters-and-quintel-augustine?document=north-carolina-v-tilmon-golphin-christina-walters-and-quintel-augustine-batson
[15] Available at: http://law2.umkc.edu/faculty/projects/ftrials/DAR_JURY.HTM.
