fewer challenges than the defense. Once judges have
struck ineligible jurors for cause, attorneys may still
have concerns about prospective jurors that are insuffi-
cient to justify a challenge for cause. The peremptory
challenge is intended to serve as a curative device for
removing potentially biased jurors who cannot be
removed for cause. For example, this type of challenge
is appropriate to remove a juror who has avoided
answering questions to remain on the jury, when the
attorney suspects that the juror holds a bias that could
not be demonstrated.
Peremptory challenges are legitimate provided that
attorneys are not targeting people who are members of
cognizable groups. According to the ruling in Batson
v. Kentucky(1968), attorneys may not use peremptory
challenges to exclude prospective jurors on the basis
of race. The Supreme Court recognizes that excluding
certain populations from jury service is a form of dis-
crimination and jeopardizes the integrity of the justice
system and has extended the Batsonrule to include
other cognizable groups such as gender, sexual orien-
tation, and religion. Accordingly, if a peremptory
challenge is contested by the opposing side, a reason
for the removal must be stated, and the rationale for
the challenge must be neutral to the cognizable
groups. More commonly known as the Batson test,
there are three steps taken to remedy the misuse of
peremptory challenges. First, complainants have to
demonstrate a prima facie case of discrimination, then
the court needs to uncover the prejudice motives, and
finally the attorney has to provide a valid reason for
removing the prospective juror. Recently, the Supreme
Court’s decisions have supported a more stringent
enforcement of Batson’s requirements after a chal-
lenge was found to be racially motivated, in which a
prosecutor excluded 10 of 11 qualified Black venire
members from the panel. Some insist that the courts
are unable to control the mandated use of peremptory
challenges appropriately and suggest that they should
be eliminated altogether to constrain attorney discre-
tion. However, others argue that peremptory chal-
lenges provide parties with essential protection from
the risk of partiality.
Many attorneys believe that the ability to sculpt a
jury can have considerable bearing on the outcome of
the trial. Currently, attorneys employ both traditional
jury selection and scientific jury selection techniques
to shape the jury. However, research is inconclusive as
to which approach is more likely to achieve a desired
outcome or result in a less “biased” jury. Traditional
jury selection entails reliance on attorney experienceand intuition to identify undesirable jurors, whereas
scientific jury selection identifies unfavorable jurors
by collecting case-relevant attitudes and demographic
information from the community and analyzing it
using statistical techniques. Each party then attempts
to use peremptory challenges to exclude the prospec-
tive jurors who have been identified as possessing a
bias, an opinion, a trait, or a characteristic that may be
injurious to that party. Attorneys can use challenges to
remove a potentially harmful juror; however, there are
legal limitations to these challenges. That is, attorneys
are not legally permitted to remove whomever they
like for whatever reason. While the legal purpose of
peremptory challenges is to eliminate jurors who may
be biased, in practice, peremptory challenges are used
for a variety of goals. Attorneys’ objectives may not
necessarily be to obtain a fair jury but instead to obtain
the jury that is most advantageous for their side of the
case. In contrast, the court aims to seat a jury that best
replicates the collective sentiment of the community
and that is able to be fair to both sides of the case.Traditional Jury Selection
Traditional jury selection refers to the strategies and
techniques that derive from attorney experience and
legal folklore. Traditional jury selection encompasses
strategies such as previous experience with juries,
common sense, expectations, intuition, and implicit
stereotypes. Simply put, attorneys attempt to collect
as much meaningful information as they can during
voir dire and rely on stereotypes, instinct, hunches,
and common sense to interpret that information.
However, critics of this approach opine that in some
cases, commonsense stereotypes can lead to opposite
conclusions about the favorability of a particular of a
juror. On the one hand, a prosecutor might assume
that females are ideal jurors for a rape case because
women are more inclined to identify and sympathize
with the victim and are more likely to render a guilty
verdict. On the other hand, a defense attorney might
prefer female jurors on a rape case because women
may need to believe that the victim put herself in a
vulnerable position so that they can continue to
believe that the world is just. Some civil attorneys
assume that poor jurors should be avoided because
they are more likely to make large awards of money
due to their resentment of their own situation, whereas
other civil attorneys assume that poor people would be
less likely to award such large sums because they are
not accustomed to that amount of money. TheseJury Selection——— 421J-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 421