The peremptory challenge, the method by which attorneys have traditionally been able to disqualify a limited number of venire members from jury service without having to state a reason, occupies an uneasy position in the law today. The Supreme Court has recognized that the use of peremptory challenges is "an arbitrary and capricious right, and it must be exercised with full freedom, or it fails of its full purpose."1 Nevertheless, the Court has imposed restrictions on the use of peremptory challenges, ruling that they can not be exercised in certain discriminatory ways that violate the Equal Protection Clause of the Fourteenth Amendment.2
The modern standard for judging the use of a peremptory challenge, laid out in Batson v. Kentucky, is familiar to any trial lawyer: in a "Batson hearing," an attorney wishing to dispute the exercise of a peremptory challenge must first raise the inference of discrimination.3 The opposing attorney is given the opportunity to offer a neutral (nondiscriminatory) reason for his action.4 The trial judge then determines if the reason offered is valid or merely a pretext for unlawful discrimination, in which case the peremptory challenge is not allowed.5
Just how easy is it, though, for a trial judge to make this determination? Consider the case of Thomas Joe Miller-El, who was convicted of capital murder in 1986 for killing a hotel employee in the course of a robbery.6 During voir dire the prosecutor used peremptory challenges to strike ten African Americans from the jury.7 Miller-El, an African American, argued that the peremptory challenges were exercised on account of race, but the trial judge found the race-neutral reasons offered by the prosecutor to be "completely credible [and] sufficient."8 Miller-El appealed, and in 2005 the Supreme Court granted him habeas relief.9 Justice Breyer described the appeals process as "17 years of largely unsuccessful and protracted litigation-including 8 different judicial proceedings and 8 different judicial opinions, and involving 23 judges."10 Sixteen of those twenty-three judges found Miller-El's claim to be without merit,11 but six Supreme Court Justices12 found that the prosecutor's use of peremptory challenges to remove 91% of all qualified African Americans from the jury pool did in fact violate the Equal Protection Clause.13 Though Miller-El's case is probably an extreme example, since the presence of the death penalty no doubt magnified the amount of litigation and the intensity of disagreement among judges, it still highlights the perplexing question of how to regulate the use of peremptory challenges.
In the four decades since the Supreme Court first began to cautiously apply the Equal Protection Clause to peremptory challenges in Swain v. Alabama,14 many lawyers, judges, and commentators have found its jurisprudence to be unsatisfying, to say the least.15 The root of this phenomenon may be the fact that analysis of the proper role of the peremptory challenge focuses on two distinct groups: (1) criminal defendants who are denied equal protection when tried before juries from which all members of their race have been excluded,16 and (2) potential jurors who are themselves denied equal protection when discriminated against in jury selection on account of their race.17
This wrinkle-having to take into account the rights of two different groups-adds another layer of complexity to the already difficult question of how to regulate the peremptory challenge.18 The Court's answer, as developed in Batson and subsequent cases, is a system in which the trial judge is responsible for determining if a peremptory challenge has been exercised in an unlawfully discriminatory manner.19 And although factors like the behavior of the attorneys during voir dire,20 the characteristics of venire members who were struck as compared to those who were not,21 and the circumstances of the trial22 may aid the judge, this ultimately remains a subjective determination. …