Criminally Yours: Don’t Eliminate Peremptory Challenges (2023)

Jury voir dire is an art, not a science. No matter how much range you’re given to ask potential jurors questions, very few admit actual bias even if you, as the attorney, have the sense they’d be happy to convict your client based on the indictment alone.

Peremptory challenges were developed as the tool for both defense and prosecution to eliminate jurors they just don’t feel right about. I often use my client as a barometer: No. 1 looked at me funny. I’m getting a bad vibe from No. 10.


There’s so much more than just what the potential jurors say during voir dire that gives you the tipoff. It’s their body language, their attitude, their background, their neighborhood — a whole slew of information that presents itself in the moment.After you’ve done voir dire enough, it becomes instinctive, not that you’re always right, but you get a feeling in your gut —this guy’s gotta go.

Who you pick also depends on the kind of case you’re trying. I look to seat working-class guys who’ve used their fists if I’m putting on a self-defense case, but I’d be happier with more females than males if I’m defending a good-looking client with a drug habit.

Where my defense is that my client’s confession is false or that police flaked him with evidence [put evidence on him he never had], I’d always rather seat somebody who listens to Democracy Now rather than Fox news.In New York City I generally favor jurors who live in more racially mixed areas like Harlem, the Upper West Side or the funky Lower East Side as opposed to Murray Hill, the Upper East Side or Battery Park.

Am I stereotyping?You bet. But in voir dire we’ve got time limits and a job to accomplish — not only pick jurors who will be fair, but pick the ones who will acquit our client.

This is where we differ from prosecutors. They should not be loading the panel with jurors just looking for a conviction. They should be looking only for people who will be fair.

This is an important distinction between our sides. We represent one guy who we’re trying to get off.They represent the state or federal government. They’re not supposed to be gaming just for a conviction; they’re supposed to be looking to do what’s right.

That’s why they are not allowed to eliminate people merely because they are the defendant’s peers — i.e. other young, black or Hispanic males. Batson v. Kentucky got decided in 1986 to protect the integrity of the jury process by forbidding prosecutors to strike jurors just based on race.But since that time, there have been a lot of wrinkles.

Striking a black juror is absolutely fine if the prosecutor can come up with a “race neutral” reason for doing it, and that can be pretty easy to do. The juror wouldn’t look me in the eye.He smiled at the defendant.He has a brother who was arrested. He’s skeptical of police because they’ve stopped him without reason in the past. [This last reason wipes out a lot of potential black jurors.]

And, I’ve go to admit, the defense does it too. I’ve been “reverse-Batsoned” for striking too many middle-aged white guys from the panel. What’s good for the goose is good for the gander, right?

The problem is, when I strike a middle-aged white guy there’s always a host more waiting in the venire to get seated. When the prosecutor strikes a black male, there’s generally only a handful left.

The Supreme Court heard arguments last week to figure out how to know when a “race-neutral” strike is more than just a pretext.Foster v. Chatman involved a black male accused of murdering a white woman. The prosecutor struck all black panelists but insisted it was not because of their race. Notes acquired by defense counsel showed this not to be the case.Prosecutors are even instructed in training sessions how to come up with reasons for striking by race while appearing race neutral.

So how do you know when a race neutral reason is legit?

I find judges in New York to be pretty savvy on this. If the prosecutor strikes a black male because he didn’t graduate high school, but sits a white construction worker who also didn’t graduate, that’s a sign that he’s not playing fair.

But this is just the tip of the iceberg.Inner city black jurors tend to have had more negative police encounters than white city residents.That’s exactly the kind of skepticism defense counsel wants on their jury.But routinely prosecutors cite those experiences as race neutral reasons why those jurors could not be fair.

It’s not as obvious as it seems.

But please, Supreme Court, don’t eliminate peremptories in their entirety. While that would be an easy solution, it won’t solve the problem. When used properly, peremptories are one of the most important tools defendants have in getting a fair jury.

Why?Because there are a lot of potential jurors out there who won’t admit to prejudice, or don’t even know they have it. What prejudice is to one person is just day-in-the-life for another. It’s a concept open to a lot of interpretation.

In the long run, defense counsel must keep excellent notes on the jurors before they’re struck.This way when the prosecutor gets to striking his third black panelist, defense counsel can counter with details about why, although the strikes look racially neutral, they really aren’t. The pattern of striking could outweigh any race-neutral explanation.

Only with this kind of detailed parry to the prosecutor’s strikes, will judges be willing to rule it a Batson violation and re-sit a juror over the prosecutor’s objection.

Toni Messina has been practicing criminal defense law since 1990, although during law school she spent one summer as an intern in a large Boston law firm and realized quickly it wasn’t for her. Prior to attending law school, she worked as a journalist from Rome, Italy, reporting stories of international interest for CBS News and NPR. She keeps sane by balancing her law practice with a family of three children, playing in a BossaNova band, and dancing flamenco. She can be reached attonimessinalw@gmail.comortonimessinalaw.com.