Ethics in Jury Selection: Responding to a Strike Challenge

Selecting a jury is one of the first and most critical parts of a trial.  The goal of jury selection is to identify the prejudices and biases that may harm your client.  The next step is to “de-select” and excuse, to the extent possible, those from the jury pool that hold those prejudices or biases.

Potential jurors may be excused by the court for “cause,” such as if they are unable to be fair or impartial based on their past experience or background.  Each side also gets a limited number of peremptory strikes.  Peremptory strikes are made when a party chooses to excuse a potential juror because it believes that person will not be favorable to its side.

One ethical consideration in jury selection is that a party may not strike a potential juror solely on the basis of race or gender.  This was first decided in Batson v. Kentucky, 479 U.S. 79 (1986).  The Batson case held that the equal protection clause of the U.S. Constitution limits a party’s ability to exercise a peremptory strike solely on the basis of race.  Later cases extended this prohibition to strikes on the basis of gender or economic status. 

Thus if a party believes that its opponent has used a peremptory strike on the basis of race or gender, it may challenge that strike to the trial judge.  This is called a Batson challenge.

In responding to a Batson challenge, the party that made the strike must give a clear and reasonably specific explanation of legitimate reasons for the strike.  Acceptable explanations can include the stricken person’s:

• overt hostility or sympathy to one side;
• past experience with the subject matter of the case;
• inattentiveness;
• lack of candor in answers;
• demeanor or dress; or
• age or experience.

As part of the determination of the challenge, the judge could review the attorneys’ notes taken during jury selection.  If a jury consultant is participating, the consultant’s notes may be reviewed as well. 

In some courts, if a Batson challenge is upheld, all the offending party’s peremptory strikes may be stricken.  In other places, jury selection may start over again with a new pool.  Either way, it can be a severe penalty that may seriously affect who gets seated on the jury.

Batson challenges are rarely successful.  However, a mere attempt to challenge may heighten attention to the issue and it could affect later peremptory strikes. 

Tim O’Neill was a featured speaker on ethical considerations in jury selection at the recent American Conference Institute’s Drug and Medical Device Litigation conference.