Since the Supreme Court's opinion in Batson v. Kentucky, the rules and tools available to lawyers for selecting juries have changed dramatically from what they had been for decades in American courtrooms. The Court's well intentioned effort in Batson to attempt to eliminate racial discrimination from the process of jury selection set in motion a series of modifications in lawyer decision making which have changed how lawyers fill the jury box. Prior to Batson, the sacrosanct tool known as the peremptory challenge had been virtually unassailable as a jury selection weapon. Abuses by prosecutors, particularly in the southern United States, had prompted concerns that some improper uses of the challenge should be easier to prove. Batson provided more flexibility by lowering the "crippling burden of proof" that had existed for many years. In doing so, however, the Court has raised serious questions about the proper role of juries and the responsibilities of lawyers as both attempt to do their job making important decisions in the justice process.
In the decade that followed the Batson decision, the Court spawned a number of opinions that have made the rules of jury selection so difficult to understand that even a lawyer who ethically seeks to follow the law may have considerable problems deciding what the law will permit. This circumstance has been further complicated by how the Batson rules affect a lawyer's obligation to attempt to select the best possible jury to hear the case on behalf of his client. The lawyer's ethical obligation to be a zealous advocate will often place him in direct conflict with the current jury selection law.
Indeed, Batson and its progeny have developed into a system of rules that not only encourage, but often require, lawyers attempting to select juries to lie to judges, clients, other lawyers, and even to themselves as they navigate the conflicting goals presented on the roily waters of jury selection.
This Article is an attempt to address the ethical tragedies that have been created by a system that encourages lawyers to manufacture better race-neutral reasons for why they have excluded a particular juror. A lawyer may engage in this enterprise whether he is trying to intentionally disguise illegal conduct or merely attempting to assure that he is not perceived as engaging in improper jury selection practices. Either way, the legal profession can ill afford to further erode the public's confidence in its integrity and honesty. In my view, a system that creates this kind of dishonesty is at least as costly as the system of racial or gender discrimination that the rules seek to avoid; especially when there are better alternatives to resolve the problems.
For decades, race, gender, and a host of other demographic factors have played a substantial role in jury selection. Litigants have used these factors to predict which jurors might be favorably disposed to their case. The concern is not simply the gamesmanship of advocacy, but contemplates important policy questions as well. Permitting litigants to have a substantial role in selecting the decision maker or shaping the decision making body bolsters respect for, and legitimacy of, the outcome of a trial. This is particularly true in criminal cases where the jury is charged with the awesome responsibility over a person's liberty, or even life or death.
I propose that the jury selection process be changed to permit the criminal defendant, at his option, to actually select from a pool of qualified jurors, people he believes are favorable to his case. I would permit the prosecutor to respond to that choice by making a choice of his own, limited by the number that the defendant has directly selected. In this way I believe we can remove much of the cat and mouse game of lawyers offering contrived reasons for challenging jurors.
This process will also clarify the host of questions raised by the use of jury selection professionals which, I believe, under the current law may well be illegal, since the advice they provide often relies on demographic data that includes assumptions and stereotypes about race and gender.
I will also propose several reforms that focus on the education of the jury and the information lawyers receive about the jurors through the voir dire process. I will also present reforms designed to stimulate greater community education and inclusiveness in jury pools by requiring teenagers seeking their driver's license to complete mandatory juror citizenship training in order to instill the importance of the jury system in our country to the next generation of decision makers.
My hope is to place the concern over discrimination in jury selection in its proper context with the need for legitimate advocacy. Justice will be better served by replacing the current system which invites and tolerates dishonesty. Through these reforms, it is my hope to strengthen the greatest jury system in the history of civilization.
Catch Me If You Can! Resolving the Ethical Tragedies in the Brave New World of Jury Selection, 32 New England Law Review 343 (1998) (lead article)