[Nancy Gertner] Kenji Yoshino asks whether it is better to eliminate peremptory challenges altogether rather than risk their use in a discriminatory fashion. I understand the problem; Snyder , the Supreme Court’s recent peremptory challenge case, dramatized it. Still, because of what I know of the real world of criminal trials, I would not throw out peremptory challenges.
Peremptory challenges are more likely to be based on stereotypes of all kinds where the voir dire process has been inadequate. The more information you have about someone the less likely you are going to stereotype him or her. The problem is that voir dire in federal court is usually limited. (State courts are different; some, like Connecticut, have a long tradition of elaborate voir dire . Some federal courts mirror the more elaborate voir dire of the states in which they are located, but that is the exception not the rule.) Typically, a juror’s self-assessment of partiality or impartiality is the end of the analysis. So, until courts recognize the significance of a searching voir dire , lawyers will never be able to ask the kind of questions that really elicit bias on the part of the juror. (When I was a practicing lawyer, the only mandated question about race in the courts of Massachusetts was, “are you sensible of any bias or prejudice you might have ” a question often asked to the jurors as a group. It was an approach hardly likely to elicit a meaningful response from the jurors. In fact, it reminded me of an AA meeting; the jurors were expected to stand up and say, “My name is John Smith and I am a racist.” Happily, the Massachusetts has changed its jury selection procedures.)
Of course, one might say if we had a more searching voir dire , why would we ever need peremptory challenges. The only answer is that peremptory challenges represent the system’s safety valve—because the very process of jury selection may alienate a juror, because there may not be enough time to ask all of the relevant questions of a juror, because in high profile cases one may suspect a juror to have been influenced by 24/7 news coverage but the juror denies it, etc.
I recognize the contradiction—if after lots of questioning you don’t have a rational basis for a cause objection, you are more likely to challenge a juror based on hunches, gut feelings, and of course, bias. Still, the very possibility of a Batson challenge has an impact on the exercise of peremptory challenges. In addition, perhaps after Snyder the courts will do a better job of monitoring. For every Snyder there were a thousand cases where courts have been unwilling to second guess the prosecutor. It was enough if the prosecutor offered any old reason so long as it was ostensibly race neutral; it didn’t have to make sense. (The Supreme Court literally said that in a 1995 case, Purkett v. Elem .) This included “I got the feeling that the juror didn’t want to be here,” or another where the juror seemed “squishy on the death penalty,” or made a funny face, or looked bored.
Whether Snyder augurs a change is an open question. It was, after all, a death penalty case. At times it appears that there is death penalty jurisprudence and then all other criminal prosecutions. In addition, as we have seen to a degree in sentencing, there are Supreme Court pronouncements which are effectively ignored by the lower federal courts.