Understanding the Preemptory Challenges During the Jury
Selection Process Which was the Basis for the Reversal of the Dalia Dippolito
Case
By: Dr. Peter A. Barone, Esq.
In the case of Dalia Dippolito she
was
convicted of solicitation to commit first-degree murder in 2011, but the Fourth
District Court of Appeal reversed the conviction last year. A Palm Beach
County judge Thursday set her retrial for May 23. The judge has advised that the defense
attorney and the prosecution have opportunities to examine each of the
potential jurors to make a determination if the potential jurors are going to
be able to be good jurors in this particular case. One of the most important
things that both sides look for, this is especially true when the case is a
prominent or publicized case like this one, is to determine if there are
potential jurors in the pool being examined who have heard or observed or have
been exposed to a great deal of information pertaining to the case. This is
done in an attempt to determine any of the potential jurors have come to the
trial with preconceptions of the defendant being either guilty or not guilty of
the crime prior to hearing the legally admitted evidence presented by the
prosecution and the defense. This is what was not done in the first jury
selection process and caused the reversal. There are a couple of ways in which attorneys exercise the right to challenge a juror without assigning, or being required to assign, a reason for the challenge. This type of challenge is one in which the attorney’s do not have to provide a reason or cause for wanting to not allow a juror to sit on this jury and there are a certain number of these challenges. The second type of challenge that is used during the selection of a jury again can be used by both parties during the proceedings where they may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause.
Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges, however, have become more difficult to exercise because the U.S. Supreme Court has forbidden peremptory strikes based on race or gender.
When dealing with preemptory challenges in a jury selection process it is understood that the parties do not have a federal constitutional right to exercise peremptory challenges. Peremptory challenges are granted by statute or by case law and the actual number of preemptory challenges is usually determined by statute; however, there are some jurisdictions which allow the trial court to grant additional peremptory challenges. In federal court each side is entitled to three peremptory challenges and if more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges.
Peremptory challenges came under legal attack in the 1980s where several critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal defendant was also African American because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race.
The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor's peremptory challenge. The prosecutor then must "come forward with a neutral explanation for challenging black jurors." If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror and this applies to blacks, whites, Hispanics, Asians, females and males.
The Court extended this holding in criminal proceedings in two later cases. In the case of Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror in order to successfully challenge the juror's exclusion. In another case, Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the Court held that the defense's exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospective jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect. These cases demonstrate how important it is to make the jury selection process fair and free from discrimination which includes prospective jurors having been exposed to positive or negative information pertaining to the case and defendant that would have an impact on fairness.
In the United States of America the Supreme Court has also specifically forbidden peremptory challenges based on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that are prejudicial and based on historical discrimination. No overriding State Interest can justify peremptory challenges on the basis of gender. Permitting gender-based strikes could also have undermined the Batson holding, because gender might be used as an excuse for racial discrimination so again the court is seeking fairness trying to make the entire process a fair one. This was not done in the jury selection in the case of Dalia Dippolito and that is why the appellate court reversed the decision in that case.
In an extension of Batson, the Supreme Court of
Connecticut ruled that the Equal Protection Clause barred the prosecutor from
striking prospective jurors based on their religious affiliation. The court, in
State v. Hodge, 726 A.2d 531 (Conn.1999), distinguished religious
beliefs and religious affiliations. It held that litigants could strike
prospective jurors whose religious beliefs would prevent them from performing
their duties as jurors.
References
Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L.
Ed. 2d 69 (1986).
Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L.
Ed. 2d 660 (1991).
Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L.
Ed. 2d 33 (1992).
J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L.
Ed. 2d 89 (1994).
Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L.
Ed. 2d 411 (1991).
State v. Hodge, 726 A.2d 531 (Conn.1999).
