The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the “Blind” Peremptory

This Article examines the peremptory challenge as modified by Batson and its progeny. The discussion is based in part on a survey of trial lawyers, asking them about their impressions of the peremptory challenge, Batson, and jury selection generally. The Article concludes that neither the peremptory challenge nor Batson achieve their full potential. Primarily because of time and other constraints on voir dire, the peremptory challenge falls short as a tool in shaping fair and impartial juries. While Batson may prevent some unlawful discrimination in jury selection, Batson falls short as a tool in identifying unlawful discrimination once it occurs.

The Article proposes the reform of jury selection procedures to improve both the effectiveness of the peremptory challenge and Batson. The proposal is simple: Allow the usual number of alternating peremptory challenges and allow the complete questioning of the jury panelists, but allow voir dire by questionnaire only and the exercise of “blind” peremptories. In a system of blind peremptories, jury panelists would be identified by number only, and no questions regarding cognizable group status (e.g., race, ethnicity, or sex) would be permitted. The suggested reform improves the effectiveness of the peremptory challenge in eliminating biased jurors. The blind peremptory, coupled with thorough attorney examination of the panelists by questionnaire, frees the litigant to exercise more principled peremptory challenges. The suggested reform also improves the effectiveness of Batson in eliminating unlawful discrimination in jury selection. The blind peremptory prevents unlawful discrimination in jury selection by limiting the ability of the litigants to discern the race, ethnicity, and sex of the jury panelists.