Restrictions on the Discriminatory Use of Peremptory Challenges (From Jurywork - Systematic Techniques - Second Edition, P 4.1 - 4.33, 1983, Beth Bonora and Elissa Krauss, ed. - See NCJ-90582)

• NCJ Number: 90585
• Author(s): T Meyer; A Sparer
• Date Published: 1983
• Length: 33 pages
• Sale Source: Clark Boardman Company, Ltd
• Language: English
• Country: United States of America

Annotation

This analysis of recent State court decisions prohibiting the use of peremptory challenges to exclude identifiable groups focuses on the California Supreme Court's decision in People v. Wheeler (1978) and the implications of these rulings for defense courtroom strategy.

Abstract

The two black defendants in Wheeler were accused of murdering a white, and the prosecution used his peremptory challenges to strike every black from the jury. The Court's decision prohibited exclusion solely on the basis of group membership, announced principles to guide application of this rule, surveyed sixth amendment case law governing the accused's right to a jury drawn from a representative cross-section of the community, and outlined procedures for establishing and rebutting a prima facie case of group discrimination. As a practical matter, cognizability is restricted to groups which are or have been counted. Massachusetts' Supreme Judicial Court subsequently adopted the Wheeler view in Commonwealth v. Soares, but also defined groups protected under the new rule as those based on race, creed, national origin, and sex, required the moving party to demonstrate a pattern of conduct revealing group bias, and permitted trial court judges to disallow peremptory challenges as an alternate remedy for misuse. Several State courts have reevaluated the use of peremptory challenges since Wheeler and Soares. Although some have rejected their doctrines, the decisions generally reveal an increasing readiness to protect the defendant's right to a fair and impartial trial through interpretation of the State constitution. Wheeler-Soares is more likely to benefit the defense than the prosecution, and courtroom tactics should be guided by three objectives: to influence the prosecutor to forego certain challenges that he or she would otherwise make, to successfully challenge the prosecutor's use of peremptory challenges, and to establish a trial record that will require or invite reversal on appeal. The safest and most useful strategy is objecting to the discriminatory use of peremptory challenges from the outset, although a preferred approach in some cases may be unobstrusively building a record and waiting until the prosecutor has excused several group members before objecting formally. The article includes 46 footnotes.