Use of Peremptory Challenges and the Improper Exclusion of Juors

Ending racial discrimination in jury selection can be accomplished only by eliminating peremptory challenges entirely.  – – Thurgood Marshall

Number of Peremptory Challenges:  There’s no such thing as a free lunch and likewise, even the free strike of jurors provided by the use peremptory challenges is not its own costs and problems. However, there will be people that you cannot establish good cause to remove from the panel and will have to remove by use of peremptory challenges.  In capital cases, both the government and the defendant are allowed twenty (20) peremptory challenges.  In non-capital felony cases, the defendant is granted ten (10) peremptory challenges and the government is allowed only six (6). In misdemeanor and civil cases, each side has three (3) peremptory challenges. Federal Rule of Criminal Procedure 24 and Federal Rule of Civil Procedure 47; 28 U.S. Code § 1870, Challenges.

Under Indiana Jury Rule 18(b) “In civil cases each side may challenge peremptorily three (3) jurors.” IC 34–36–3–3(a) ( “Each party in a civil case has three (3) peremptory challenges.”).  In Indiana State Court, in capital cases, both the State and the defendant are allowed 20 peremptory challenges. In non-capital felony cases, the State and the defendant are granted ten (10) peremptory challenges.  In Class D Felony and misdemeanor cases, each side is entitled to five (5) peremptory challenges.  In all state civil cases, each side has 3 peremptory challenges.  When several defendants are tried together, they must join their challenges.  Indiana Jury Rule 18.

As to alternate jurors, one (1) peremptory challenge shall be allowed to each side in both criminal and civil cases for every two (2) alternate jurors to be seated. Id.

Race:   Peremptory challenges based on race violate the juror’s Fourteenth Amendment right to equal protection of the law and require a retrial. McCormick v. State, 803 N.E.2d 1108, 1110 (Ind.2004); Wright v. State, 690 N.E.2d 1098, 1104 (Ind.1997). A defendant’s claim of racial discrimination in a peremptory strike triggers a three-step inquiry. See Bradley v. State, 649 N.E.2d 100, 105 (Ind.1995) (citing Batson v. Kentucky, 476 U.S. 79, 96–98, 106 S. Ct. 1712, 90 L.Ed.2d 69 (1986)).

First, the trial court must determine whether the party has made a prima facie showing that the opposing party exercised a peremptory challenge on the basis of race. Batson, 476 U.S. at 96–97, 106 S. Ct. 1712. To make a prima facie case of purposeful discrimination, the complaining party must show that the excused juror was a member of a cognizable racial group and present an inference that the juror was excluded because of his or her race. McCants v. State, 686 N.E.2d 1281, 1284 (Ind.1997).

Second, after the complaining party presents a prima facie case of racial discrimination in the use of a peremptory challenge, the burden shifts to the opposing party to present a race-neutral explanation for striking the juror. Batson, 476 U.S. at 97–98, 106 S.Ct. 1712. A race-neutral explanation means “an explanation based on something other than the race of the juror.” Hernandez v. New York, 500 U.S. 352, 360, 111 S. Ct. 1859, 114 L.Ed.2d 395 (1991) (plurality). Although the opposing  party must present a comprehensible reason and offer more than a mere denial of improper motive, “the second step of this process does not demand an explanation that is persuasive, or even plausible.” Purkett v. Elem, 514 U.S. 765, 767–768, 115 S. Ct. 1769, 131 L.Ed.2d 834 (1995) (per curiam). If the reason is not inherently discriminatory, it passes the second step.  Id. “[T]he issue is the facial validity of the opposing party’s explanation. Unless a discriminatory intent is inherent in the opposing party’s explanation, the reason will be deemed race neutral.” Id. “[An opposing party] simply has to state his reasons as best he can and stand or fall on the plausibility of the reasons” proffered. Miller–El v. Dretke, 545 U.S. 231, 236, 125 S. Ct. 2317, 162 L.Ed.2d 196 (2005).

Third, the Court must determine whether the complaining party has established purposeful discrimination. Miller–El, 545 U.S. at 236, 125 S. Ct. 2317; Batson, 476 U.S. at 98, 106 S. Ct. 1712; McCormick, 803 N.E.2d at 1110. This third step involves evaluating “the persuasiveness of the justification” proffered by the opposing party, but “the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike.” Purkett, 514 U.S. at 768, 115 S. Ct. 1769.  Disparate treatment of similarly situated jurors satisfies this burden of showing the strike was racially motivated. Snyder v. Louisiana, 552 U.S. 472 (2008)(held  trial judge had acted improperly by allowing the prosecutor to peremptorily strike all African American jurors from the panel because the reasons given for striking the black jurors applied equally well to the white jurors the prosecution did not strike).

The analysis of Batson v. Kentucky has been applied in areas other than race and in civil cases. See Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991)(civil case).  Below are some examples:

Gender:  J. E. B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994), (held women could not be systematically excluded from a venire).

Sexual Orientation: SmithKline Beecham Corporation v. Abbott Laboratories, 740 F.3d 471 (2014)(held in civil case distinctions based on sexual orientation are subject to the “heightened scrutiny” standard of review and that “equal protection prohibits peremptory strikes based on sexual orientation). Given the 7th Circuit’s scathing critique of anti-gay-lesbian-transgender restrictions on marriage and their application of heightened scrutiny as part of their equal protection analysis, it seems likely that a properly supported challenge on this basis would be upheld in our local federal courts.  See Marilyn Rae Baskin V. Penny Bogan,  ___  F. 3rd  ___ (7th Cir. 2014).

So chose wisely and exercise your challenges without improper animus or bias.

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About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on November 10, 2014, in Jury Selection, Trial Advocacy and tagged , , , , , , , . Bookmark the permalink. Leave a comment.

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