In order for any criminal trial begins, a jury must be selected. But how a jury is chosen why certain prospective jurors are excluded is not limitless. Generally, when jurors are selected from a pool (called the “venire”) they can be excluded “for cause” or because either the defendant’s attorney or the prosecutor exercised a “peremptory challenge.” A peremptory challenge is where one party excuses a prospective juror from being seated on the jury. The use of peremptory challenges, however, is not without its limits.
The Equal Protection Clause of the 14th Amendment to the United States Constitution and Article 12 of the Massachusetts Declaration of Rights place limitations on the use of peremptory challenges. Generally, a party cannot exercise a peremptory challenge of a prospective juror if the reason is based by virtue of their membership in or their affiliation with particular defined groupings in the community, such as race, sex or religion.
When a party challenges the opponents use of a peremptory challenge, the judge must evaluate the objection based on a 3-step process:
- The burden is on the objecting party to make a showing that overcomes the presumption that the peremptory challenge was properly made. Usually this is established if there has been a pattern of excluding members of a group; or that it is likely that individuals are being excluded solely on the basis of their membership in that group. This is not a tremendously high burden to show, and may even be satisfied on one peremptory challenge, especially where the challenged juror is the only member of his or her protected class in the entire jury pool.
- If the judge so finds, then the party who exercised the peremptory challenge has the burden to prove that there was a “group-neutral” reason for the challenge; and
- The judge then evaluates the whether the proffered reason is “adequate” and “genuine”.
A recent example of an unlawful peremptory challenge occurred in a Massachusetts murder trial that resulting in the conviction of the defendant. On appeal, the defendant raised the issue that his murder conviction was unlawful because “the Commonwealth improperly excluded black men from the jury” from the use of improper peremptory challenges. In that case, the prosecutor used a peremptory challenge on the first black man who was a potential juror and the defendant’s attorney objected to the prosecutor’s attempt to remove the black juror. The trial judge, however, determined that the prosecutor’s peremptory challenge was proper, stating that he did not find any discriminatory pattern in the prosecutor’s peremptory challenges – and as such, did not inquire about the prosecutor’s reasoning.
Later on in the jury selection process, the defendant’s attorney raised a second objection to the prosecutor’s used of a peremptory challenge to exclude a man from the Dominican Republic. A discussion ensued about the race of this juror’s race, with all parties disagreeing if he was black, hispanic, or some other race. Unable to decide how to consider this juror’s race, the judge ruled that he did not see a pattern because “there were two black women on the jury.”
In reversing this defendant’s convictions for first degree murder, the Massachusetts Supreme Judicial Court held that judge abused his discretion in finding no pattern after the defendant’s second objection to the Commonwealth’s use of peremptory challenges on black men.
Further, the SJC rejected the trial judge’s reasoning that because there were already to black women on the jury that there was no indication of a pattern. First, the defendant was not challenging all black people from the jury- he challenge was specific to black men. Second, the makeup of who was on the jury is not dispositive on the issue if there was a pattern; rather, the totality of circumstances must be taken into account. Additionally, on the issue where the parties could not agree on the race of the prospective juror in question, the trial judge should have presumed that the juror was a member of the protected class at issue.
Cases such as this are important to highlight because criminal defendants expect to be a tried by a “jury of their peers”. The issue for many minority defendants is that, in many counties across the Commonwealth of Massachusetts, it is very difficult to obtain a racially diverse jury pool. In most of the jury trials I have participated in, I have seen for myself that the vast majority of the jury pool consists of white prospective jurors. For minority criminal defendants, and in order to ensure their due process rights to a fair trial, that prospective jurors are not removed by peremptory challenges. based solely on their race.