Posted on Aug 19, 2013

A recent decision in Washington turned into a debate on the use of peremptory challenges in jury selection. Although the upheld the conviction of Kirk Saintcalle, the used the case to discuss the use of peremptory challenges, with some judges suggesting they should be abolished.

Peremptory challenges are strikes given to each side in a case which allow them to remove jurors for any reason they choose. In 1986 the Supreme Court in Batson v. Kentucky, placed restrictions on the use of such strikes, holding they could not be based solely on race. Saintcalle relied on the decision in challenging  his conviction, pointing out that the State removed the only black juror on his jury panel.

Several judges suggested that race is often a factor in jury selection, whether it is concsious or unconcsious. Justice Gonzalez wrote:

“Peremptory challenges are used in trial courts throughout this state, often based largely or entirely on racial stereotypes or generalizations,” Justice Steven Gonzalez wrote. “As a result, many qualified persons in this state are being excluded from jury service because of race.”

In the end, the court suggested that rules may be necessary to ensure that race is not an issue in the decision to remove an individual juror. 

While the decision is an interesting one, and you have to applaude the court for recognizing the problem, the practical effect is probably zero. Under Batson the lawyer must show the strike was not motivated by race, which generally means pointing out a reasonable explanation why the decision was made. If race was an unconcious factor, it is almost impossible to ferret that out. Trial court judges would have to be given authority to second guess the decision, which would provide its own set of problems. So in the end, the real value of the this decision may be that the court initiated the discussion.