American Society of Trial Consultants Takes Stand Against Elimination of Peremptory Strikes
Last year, the American Society of Trial Consultants established a Task Force on the Elimination of Peremptory Challenges. This was done in response to several factors, including
- the Arizona Supreme Court's decision to eliminate peremptory challenges;
- heightened awareness nationally of both the need to improve the representativeness of juries and improve the ability to uncover bias in venires; and
- a paper published by Arizona State University Professor Jessica Salerno and others on the limitations of standard voir dire and rehabilitation methods in uncovering and eliminating juror bias.
The Task Force’s work was adopted by the Society’s board of directors, thereby making it ASTC’s Position Paper opposing the elimination of peremptory challenges. The paper discusses the importance of both diverse and impartial juries and the need to preserve peremptory challenges to remove biased jurors not struck for cause. Importantly, ASTC recommends improvements to voir dire procedures that it believes will increase judge and lawyer ability to identify juror bias and appropriately exercise cause strikes and peremptory challenges.
9th Circuit Explains Batson Doctrine
In Hoyos v. Davis, death-row inmate Jaime Hoyos filed a petition for writ of habeas corpus attacking the exercise of peremptory strikes during his jury trial. In a lengthy opinion, the federal Court of Appeals for the 9th Circuit ruled the California court did not err (1) by failing to give the prosecutor an opportunity to explain its reasons for peremptory strikes against three Hispanic venire members; (2) by failing to conduct comparative juror analysis in evaluating petitioner’s Batson claim; (3) by determining the prosecution's use of a peremptory challenge to strike Hispanic prospective jurors did not give rise to inference of racial discrimination; and (4) by determining petitioner did not make sufficient prima facie showing of prosecution’s discriminatory use of peremptory challenges against Hispanic prospective jurors. The federal appellate court applied the presumption of correctness to the state proceedings. Its opinion is a tutorial on the proper application of the Batson doctrine in state and federal courts. Special focus is given to established federal doctrine regarding a movant’s burden of proof at the first, “prima facie case” stage of a Batson challenge. Namely, the burden is lighter than “more likely than not.” Rather, it is “evidence sufficient to permit the trial judge to draw an inference that discrimination had occurred.”
Judge Admonished for Statements Made During Jury Selection
NCSC’s Center for Judicial Ethics informs us the Texas Commission on Judicial Conduct publicly admonished Judge Justin Low for intemperate statements made during jury selection. The Commission in its Public Admonition [of Low] and Order of Additional Education found that, on May 7, 2021, while presiding over pre-qualification for jury duty, the judge referred to COVID-19 as the “China Virus” and stated, “yeah, I said it!” and “the attorneys would be upset I said that” to potential jurors. When some of the potential jurors whooped and clapped their hands for his comment, the judge encouraged their behavior by laughing and nodding. A potential juror who was Asian American stated that she felt unsafe and uncomfortable after the judge’s comment, especially considering recent Asian American hate crimes. The judge testified that he was trying to expose bias and/or prejudices among the potential jurors and that he knew it could be offensive to some potential jurors, but he was doing it for a higher purpose. The judge also called some of the pre-requisite questions “stupid” and commented, “I don’t know why I have to ask this.” The Commission also ordered the judge to obtain one hour of instruction with a mentor about courtroom demeanor.