The United States Supreme Court recently reversed a death penalty conviction in Foster v. Chatman, where the prosecutor clearly exercised peremptory challenges in order to eliminate blacks from the jury. While the case is an extreme example of a Batson violation, I agree with Justice Marshall’s concurring opinion in Batson the best way to eliminate inappropriate use of peremptory challenges is to eliminate peremptory challenges. The history of their use since Batson simply shows that Batson has done little to control misuses of such challenges.
Peremptory challenges have a long history more closely related to justice by combat than to justice by equal protection of the law. In no area of twenty-first century law must a judge accept a hunch or a whim as a proper legal argument. Since, for example, lack of eye contact (one of the prosecutor’s excuses in Foster) is not a protected legal class, a challenge on that basis is legally proper as long as the challenger is consistent and does not leave evidence behind showing he was – to use the most polite word – misleading the court (as in fact happened in Foster). While lack of eye contact is not an absurd reason, one can easily imagine an absurd reason that, absent evidence that it is not the real one, a judge would have to accept. For example, “I didn’t like the carefree way the prospective juror came into the courtroom for questioning.”
We all know peremptory challenges can be used for absurd reasons or for reasons that mask a real, improper one. Indeed, it is hard to believe the prosecutor was so stupid in Foster, because an improper Batson challenge is so easily concealed.
Peremptory challenges have even less justification in Connecticut than elsewhere. In the state courts, Article First, § 19 of the Connecticut Constitution guarantees the right to individual voir dire by counsel. This right gives the lawyers ample opportunity to quiz potential jurors carefully to determine any bias that would provide a proper basis for a challenge for cause. This Connecticut state court procedure is to be distinguished from procedure in federal and other state courts, where voir dire by the judge is often perfunctory and too accepting at face value of a prospective juror’s answer to a question.
Lawyers on both sides of cases love peremptory challenges. Lawyers trust their hunches, even ones they cannot articulate very well. But hunches have little to do with equal justice and quite a lot to do with unequal justice. The place for hunches is outside the courtroom – for example, in whether to bring a case, or whether and on what terms to settle – but once the case is in the courtroom, a proper argument before a judge should not be based on “I have a hunch.”
This position does not mean an objection that has more than a hunch but less than traditional good cause should be denied. In U.S. v. Martinez, 67 M.J. 59 (2008), the U.S. Court of Appeals for the Armed Forces applied a “liberal grant mandate” to disqualify a juror for cause consistent with its prior cases involving implied bias. If Connecticut were to adopt a similar “liberal grant” rule, the more persuasive aspects of the right to make a peremptory challenge would be preserved and the less persuasive aspects would be discarded.