Document Type

Article

Publication Date

Summer 2017

Abstract

Modern jury selection is pulled in two directions. Equal protection prohibits racial discrimination, but the traditional peremptory strike permits exclusion of a juror without explanation. To reconcile this tension, the Court developed the Batson framework, requiring lawyers to articulate ex post race-neutral justifications for suspicious strikes. But many doubt Batson's efficacy at uncovering latent discrimination. During the 2015-16 term, while recognizing a Batson violation in Foster v. Chatman, the Supreme Court counter-intuitively reinforced this concern. Foster is the rare case in which prosecutors documented in writing their reliance on race. A framework that depends on such transparency is weak and ineffective. And the systemic persistence of discrimination, three decades after Batson was decided, has convinced many that the only solution is to eliminate peremptory strikes in their entirety.

In this Article, I offer an alternative strategy. I introduce a new mechanism to reform - but not entirely eliminate - the system of peremptory challenges: the "hybrid jury strike." Hybrid strikes would fall in between traditional peremptory challenges, which may be exercised at the party's discretion, and challenges for cause, which may be granted only upon an adequate showing of juror bias or other basis for disqualification. Hybrid strikes would require ex ante justification but not a conclusive showing of bias; they could be used to exclude a set number of jurors who survived non-pretextual and meaningful cause challenges. Hybrid strikes could replace traditional peremptories wholesale or could be leveraged asymmetrically - for example, by preserving traditional peremptories for the defense while permitting only hybrid strikes for the prosecution.

Hybrid strikes offer an intermediate approach between the status quo and complete abolition of peremptory challenges. They would meaningfully curtail discrimination while preserving the most legitimate function of peremptory challenges: to foster jury impartiality by providing a buffer zone for cause challenges when evidence of bias is credible but insufficient or when judges erroneously reject them.

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