What Is the Purpose of a Peremptory Challenge ?
Historically the peremptory challenge allowed a lawyer to strike a certain number of prospective jurors without having to state a reason.
The peremptory challenge in the United States is said to have been used by states to resist the desegregation forced upon them by the federal government. Morris B. Hoffman, Peremptory Challenges Should be Abolished: a Trial Judge's Perspective, 64 U. Chi. L. Rev. 809, 849 (Summer 1997).
The original purpose of the peremptory challenge in England was to balance the playing field against the Crown's unlimited ability to eliminate prospective jurors.
However, Judge Hoffman argues, the peremptory challenge in America has no such noble purpose because of our racial history. Id. at 844.
Once the civil rights movement resulted in elimination of Jim Crow laws enforcing segregation, Judge Hoffman contends, the peremptory challenge continued to serve as an efficient final racial filter to ensure all-white juries. Id. at 829.
The case against peremptory challenges on racial grounds may be a bit overstated because, irrespective of its use in some jurisdictions to deny African-Americans full participation in the legal system, it remains well entrenched in jurisdictions that have no history of resistance to civil rights.
What if a trial lawyer infers from the social sciences that members of certain racial or ethnic or religious groups are, on average, more likely than not to be favorably disposed to a client's kind of cause? As a zealous advocate in an adversary system, the lawyer may, and arguably should, consider that characteristic in determining which potential jurors to strike.
This is especially true where, as in Missouri, little trial time is given to allow the lawyers to question jurors extensively to determine their actual individual attitudes. the lawyers gain some minimal information about jurors' attitudes and perceptions in the voir dire examination, but usually not enough to counter the preconceived notions that the lawyer brings to the courtroom.
The peremptory challenge brings up a tension between two of a prosecuting attorney's ethical duties - the duty zealously to represent the client and the duty to seek justice, not merely to convict.
If the enforcement of Batson is lax, then it is fairly easy for the prosecuting attorney to let the duty zealously to represent the client override the duty to seek justice. Preventing racial discrimination in jury selection is part of seeing that justice is done. See Berger v. United States, 295 U.S. 78, 88, 79 L. Ed. 1314, 55 S. Ct. 629 (1935).
But this part of justice may not be done where the prosecutor believes that justice requires conviction of the defendant, although this belief should not trump other ethical norms.