By Dr. Ken Broda-Bahm:
Once, as I sat in a courtroom getting prepared to assist in picking a jury, the lawyer I was working with leaned over to say, "Make sure you have some reasons for strikes written down that we would be able to show the court." My reaction? "Of course. All of my reasons would be reasons that I would be willing to show the court." Thankfully, the attorney's response was, "Good." Although I am sure it happens, in all the jury selections I've been involved in, I've never recommended or had someone recommend to me that a potential juror should receive a peremptory strike due to their race. And the law says, that's how it should be. Not just the law, but social science as well: Demographic characteristics like race, age, or gender might be visible and obvious, but they aren't terribly predictive of bias. Despite that, there has been a long-running concern over the use of racially-based strikes, particularly in criminal cases and particularly by prosecutors. The well-known compromise forged in the 1986 case of Batson v. Kentucky appears to be outliving its usefulness, at least in the eyes of many judges and legal commentators. Based on the Batson process, where one side is able to make a prima facie showing of a prima facie case that one or more peremptory strikes are based on racial bias, the other side has to show a race-neutral reason for their strike or strikes. The conventional wisdom, however, is that this process fails at two levels because judges often don't see a prima facie case, and even when they do, it is easy for the striking party to come up with just about any neutral reason.
The result of the perceived popular failure of Batson is that the long-simmering distrust of peremptory challenges is now at risk of boiling over. In a recent case before the Supreme Court of Washington State, a majority concurred in lowering the standard for the prima facie case (to the point that striking the last member of any cognizable racial group now presumptive creates a prima facie case), and have called for a working group to create new rules for addressing bias outside of the Batson framework. Two judges, Mary Yu and Steven Gonzalez, went further, and joined in calling for "the complete abolishment of peremptory challenges." Justice Gonzales said, "The use of peremptory challenges contributes to the historical and ongoing underrepresentation of minority groups on juries, imposes substantial administrative and litigation costs, results in less effective juries, and unfairly amplifies resource disparity among litigants -- all without substantiated benefits. The peremptory challenge is an antiquated procedure that should no longer be used." The criticisms and benefits of peremptory strikes can be addressed, and abolition (even in the many, many cases where race is not an issue) seems grossly overbroad. But in this post, I want to take aim at the assumption that Batson cannot work because it is too easy to come up with a pretextual race-neutral reason. It strikes as odd that within the field of law, a cathedral to the idea of persuasion through logical argument, we fear that the process simply cannot tell the difference between a reasonable basis and a wholly made-up rationale. I think it can. And further, I think that if that is what it takes to reduce the reality and the perception of biased use of peremptories, any lawyer and any consultant working with that lawyer should be prepared to defend the basis for their strikes when called upon.