Juror Exclusion Based on Gender
Peremptory challenge based on gender:
Both federal and state law preclude exclusion of potential jurors based on gender discrimination. See J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 128 L. Ed. 2d 89, 114 S. Ct. 1419 (1994); Parham v. Horace Mann Ins. Co., 200 W. Va. 609, 490 S.E.2d 696 (1997). We held in Payne v. Gundy, 196 W. Va. 82, 468 S.E.2d 335 (1996), that
It is a violation of the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States and article III, section 10, of the Constitution of West Virginia for a party in a civil action to purposefully eliminate potential jurors from a jury through the use of peremptory strikes solely upon the basis of gender.
In the seminal decision of Batson v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 (1986), the United States Supreme Court established the framework for determining whether a peremptory strike was used for a discriminatory purpose. Id. at 80.
We adopted this three-step process in Parham:
To prove a violation of equal protection, the analytical framework established in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), involves three steps.
First, there must be a prima facie case of improper discrimination.
Second, if a prima facie case is shown, the striking party must offer a neutral explanation for making the strike.
Third, if a neutral explanation is given, the trial court must determine whether the opponent of the strike has proved purposeful discrimination.
So long as the reasons given in step two are facially valid, the explanation for the strike need not be persuasive or plausible.
The persuasiveness of the explanation does not become relevant until the third step when the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination. 200 W. Va. at 611, 490 S.E.2d at 698.