Ensuring that minority groups are treated fairly in the legal process is an important concern. The Castaneda v. Partida and Duren v. Missouri decisions enable courts to monitor the demographic composition of the selection of potential jurors using a variety of statistical techniques. This paper shows that Fisher’s exact test is appropriate for examining statistical data on peremptory challenges when Batson issues are raised. In addition to being a well-established method, it evaluates the challenges made by each party assuming the other side is fair. Thus, it is consistent with the Supreme Court’s statement in Miller-El that the defendant’s pattern of challenges is not relevant in determining whether the prosecution’s challenges were fair. Although one has the entire population of potential jurors and the number of peremptory challenges, which are regarded a sample from the venire, both the population and the sample are of small size. This limits the power of the test to detect a system in which the odds a minority member is challenged are two or three times those of a majority member. When data is available for similar or related trials, an appropriate method for combining the Fisher tests for each trial is noted. In every case where the Supreme Court found discrimination in peremptory challenges and the data is reported, even though the power of Fisher’s exact test is low, it found a statistically significant difference in the proportions of minority members of the venire and majority members removed. It also finds a statistically significant excess of African-Americans were challenged by the prosecutor in Foster. In a case where the Court did not find bias in peremptory challenges the test did not have sufficient power to detect a substantial disparity, so the Court properly did not give the statistics much weight.
The defendant’s two counts of making a criminal threat are reversed for the following reasons:
1) the trial court erred in denying defendant's Batson/Wheeler motions alleging that the prosecutor had discriminated against men in exercising peremptory challenges during jury selection;
2) purposeful discrimination in the exercise of peremptory challenges is structural error that is reversible per se; and
3) the prosecutor's failure to articulate anything about Jurors 6 and 32 as the basis for striking them after the trial court had found a prima facie case of group bias did nothing to dispel the reasonable inference that the prosecutor preferred women to men and was exercising her peremptory challenges to effect that preference.
In denying Tsarnaev's request, federal judge George A. O'Toole Jr stated that the federal rules do not allow for providing additional peremptories. As a result, Tsarnaev will have to rely on the standard 20 peremptories provided to defendants facing the death penalty. As some will recall, Dzhokhar Tsarnaev is charged with carrying out the Boston Marathon bombing.
Lawyers for Aaron Hernandez, the former professional football player now on trial for the murder of Odin Loyd, want the court to grant them additional peremptory challenges. The defense attorneys claim that they need the additional peremptories to remove so-called "stealth" jurors from the venire. In the Scott Peterson trial, several stealth or rogue jurors tried to lie their way onto the panel. Stealth jurors have a variety of different agendas ranging from thrill seeking to strong feelings for or against the defendant to a desire to cash in on their jury experience.
Some say "Black," others say "White," a prospective juror (C.D.) in a criminal case in Connecticut (State v. Edwards) said "Human." The juror's response led the prosecution to exercise a peremptory to remove her.
Not surprising, the prosecution's use of the peremptory was challenged by defense counsel pursuant to Batson. The trial court overruled the defense's objection and the state high court affirmed the defendant's conviction. The Connecticut Supreme Court ultimately determined that
"[t]he specific race with which C.D. identified… would encompass all persons, regardless of their physical characteristics, ancestry or ethnicity...Thus, the use of a peremptory challenge against an individual who identifies as being part of the human race cannot logically be facially race-based."
It should be noted that the juror appeared to be African-American which was same race as the defendant.
The article below discusses an attempt by some to reduce the number of peremptory challenges afforded criminal defendants in the state of Victoria in Australia. At present, defense attorneys have 6 peremptory challenges but some would like to see that number reduced to 3. For those seeking the reduction, they argue that fewer peremptories will lead to more diverse juries. Apparently, many of the peremptory challenges exercised by defense counsel in Victoria target women.
Outside of stories about jurors improperly using technology, the topic du jour, at least in the world of juries, is whether prospective jurors may be struck because of their sexual orientation. As discussed here, several states have or plan to introduce legislation to prohibit attorneys from using peremptory challenges to strike jurors because of their sexual orientation.
The article below talks about two California cases one state, the other federal in which the court addresses whether attorneys can strike potential jurors because of their sexual orientation. In the state case (People v. Garcia) decided in 2000, the California appellate court held that a criminal defendant's right to a jury representative of a cross-section of society was violated when prospective jurors were removed because of their sexual orientation. This same issue is now currently before the 9th Circuit Court of Appeals in GlaxoSmithKline PLC v. Abbot Laboratories. It remains to be seen how the 9th Circuit will rule and whether the case will find its way to the Supreme Court.
In People v. Eddie Thompson, the Court of Appeals of New York held that it was not ineffective assistance of counsel to keep a juror [William Peters] who was long-time friends with the prosecutor. In Thompson, the defendant, who was acquitted of second degree murder but convicted of manslaughter in the death of his girlfriend, argued that it was ineffective assistance of counsel for his attorney to fail to exercise a peremptory challenge to remove Peters. Although defense counsel did ask that the judge challenge Peters for cause, he never used one of his peremptories to strike him.
According to the court,
[i]t could be argued that counsel's decision not to use a peremptory challenge on Peters was a mistake for two reasons: because Peters, as a juror, would be biased in the prosecution's favor; and because, by not using a peremptory challenge to excuse him, counsel failed to preserve for appeal any claim that the court erred in rejecting the for-cause challenge.
The court made quick work of the first argument stating that
[it] is a weak one, because defense counsel may reasonably have thought Peters an acceptable juror from the defense point of view.
In contrast, the second argument merited more discussion. According to the court,
[c]ounsel's choice not to exercise a peremptory challenge deprived defendant of the opportunity to make that argument on appeal; under CPL 270.20 (2), where a defendant has not exhausted his peremptory challenges, a denial of a challenge for cause "does not constitute reversible error unless the defendant . . . peremptorily challenges such prospective juror."
In affirming the defendant's conviction, the court ultimately concluded that
counsel's mistake, if it was one, was not the sort of "egregious and prejudicial" error that amounts to a deprivation of the constitutional right to counsel
According to at least one NY trial judge it appears that they are. In People v. Robar, Judge Frank LaBuda of Sullivan County, NY recently declared a mistrial after the defense attorney used 6 peremptory challenges to strike jurors who had identified themselves as hunters.
The trial judge stated that hunters were "a class of people recognized by law...Yet, in this case, they are being systematically excluded." The judge went on to say that "the peers of Mr. Robar consist of a broad spectrum of people here in Sullivan County which includes hunters and people who exercise their Second Amendment right...To systematically exclude that recognized and defined class of people in a jury trial is something that raises the court's attention under [People v. Luciano, 10 NY3d 499 (1988)]."
The defendant in this case was being charged with assault for shooting another hunter who apparently mistakenly trespassed onto property that the defendant's hunting club had reserved.
The latest version of the Jury Expert is now available. This edition has a good analysis of Thaler v. Haynes, the SCT's most recent effort to clean up and clarify the world of peremptory challenges and Batson v. Kentucky.