Too Religious for the Jury?
A Federal Court Upholds Peremptory Challenges Based on Religious Involvement

By SHERRY F. COLB

Wednesday, Nov. 05, 2003

On October 17, the U.S. Court of Appeals for the Third Circuit ruled in United States v. Dejesus that prosecutors may use "peremptory challenges" to eliminate jurors who are very religiously involved.

This ruling raises a variety of issues concerning equal rights and stereotyping under the law. Ultimately, however, the decision is probably correct.

What Are Peremptory Challenges?

Prior to every trial, whether criminal or civil, the judge and attorneys consider a large group of potential jurors. They ultimately settle on twelve (or fewer) who will be the jury in the case (along with any alternates).

Though different jurisdictions handle the elimination of jurors in distinct ways, there are ordinarily two vehicles through which one or the other side might strike a potential juror from the pool. One is for-cause challenges. The other is peremptory challenges.

First, a lawyer may challenge a juror for "cause." In mounting such a challenge, an attorney argues that based on a person's answers to the lawyer's or the judge's questions, that person has proved himself incapable of carrying out his responsibilities as a juror. (An example of a person properly eliminated for cause might be someone who turns out to be a close friend of the accused in a criminal case or an employee of the plaintiff in a civil suit.)

Such a juror could not be trusted to engage in neutral, objective fact-finding. The number of allowed "for-cause" challenges is not set by the law. It will depend entirely on the number of potential jurors about whose ability to carry out their duties either party can convincingly raise serious questions to the judge.

The second kind of challenge is the "peremptory" challenge. This refers to each attorney's power simply to eliminate a given number of jurors at will, without providing any reason at all for their decisions.

A defense lawyer could choose, for example, to exercise peremptory challenges to eliminate people with a college education, on the theory that highly educated people are more likely to see through defense tactics. A plaintiff's lawyer, in turn, might reject members of the pool who are married, because she believes (perhaps incorrectly) that married people are less sympathetic to lawsuits than single people.

What distinguishes peremptory challenges from "for-cause" challenges? Peremptory challenges regularly rest on impressionistic (and often wildly inaccurate) overgeneralizations about people who share a common trait. In other words, they often rely on stereotypes. Challenges for cause, by contrast, must rest on articulable, persuasive, and legitimate grounds.

Permissible and Impermissible Stereotyping

When an attorney exercises peremptory challenges, she uses her discretion to reject potential jurors who are not, objectively speaking, objectionable. These people do not bring any obvious bias to the courtroom, and an attempt to eliminate them for cause would almost certainly fail.

The lawyer might nonetheless have a bad feeling about the person, dislike him personally or otherwise oppose him for reasons that - if actually articulated - would sound foolish or even offensive. Peremptory challenges thus provide each attorney with the freedom to be downright arbitrary, a limited number of times, to help craft a desired jury.

The U.S. Supreme Court, however, has placed boundaries around this freedom. In a line of cases beginning with Batson v. Kentucky, it has ruled that an attorney - in a criminal case or a civil case - may not eliminate a juror on the basis of that juror's race or sex.

Thus, as in employment law, where some jobs may be terminated for virtually any reason or for no reason at all, some reasons are nonetheless off limits. Joanna Grossman has written an excellent column for this site exploring implications of the Batson line of cases.

What is the remedy for a Batson violation? In the case of a defendant who is convicted of a crime, if a prosecutor is later shown to have eliminated jurors based on one of the prohibited grounds, then the conviction will be reversed and the defendant entitled to a new trial.

The rationale behind prohibiting some exercises of discretion is that the Equal Protection Clause of the Fourteenth Amendment protects people against invidious discrimination. Though any arbitrary decision "discriminates" between people for questionable reasons, some kinds of discrimination - on the basis of race or sex, for example - trigger particularly harsh judgment under the Equal Protection Clause.

Because of a history of persecution on the basis of these categories, the Court has held that no one serving her government as a juror should have to tolerate being the victim of such discrimination.

Since the juror has no direct remedy for this injury, moreover, the parties in the case may raise the Equal Protection claim in her stead. In the case of a criminal trial, that means that a defendant can void a conviction because of such discrimination.

Is Religion a Prohibited Ground?

The Supreme Court has yet to rule on whether striking a juror based on religious affiliation triggers the special treatment so far reserved for race and sex. If an attorney, eliminates John Doe from the pool because Doe is Catholic, does that strike violate the Constitution?

Neither federal nor state courts have reached a consensus on this question, and the U.S. Supreme Court may eventually have to resolve it definitively. There is good reason to expect, however, that discrimination on the basis of religious affiliation will be added to the list of forbidden categories, because it has historically been characterized by some of the same sorts of abuse identified with race and sex discrimination.

Religion, in legal jargon, is a "suspect classification" for Equal Protection purposes. This means that generally, the practice of religious discrimination requires a government actor to provide a compelling justification.

Is Religiosity, As Opposed to Religious Affiliation, a Prohibited Ground?

That brings us to the Third Circuit case with which this column began. In United States v. Dejesus, Jerry Dejesus was convicted of possession of a weapon by a convicted felon. Dejesus was sentenced to 110 months in prison, along with three years of supervised release and a special assessment of $100. On appeal, Dejesus argued, among other things, that his conviction should be overturned because the prosecutor impermissibly exercised peremptory challenges based on a prohibited ground, namely religiosity.

The government countered that it did not eliminate jurors based on their religious affiliation - Christian versus Jewish versus Muslim versus Hindu. Instead, it struck jurors who were highly committed to the practice of religion.

In the case of one juror, his responses to a questionnaire (distributed to everyone in the jury pool) indicated that his life included a high degree of religious involvement and revolved around the church. Based on this information, the prosecutor concluded that the juror might be excessively compassionate (and not sufficiently judgmental) towards a guilty defendant.

The Court of Appeals considered and rejected the defendant's argument that such stereotyping on the basis of religiosity or religious commitment violates the Equal Protection Clause in the same manner as stereotyping based on race or sex. It held that even if religious affiliation itself were a prohibited ground for peremptory challenges - a question on which court withheld judgment - the government's use of religiosity to strike jurors would not fall into the same prohibited category.

Religious Affiliation versus Religious Commitment

At first glance, it might seem that the Court of Appeals was drawing a distinction without a difference. After all, part of what it often means to be affiliated with a particular religious group is to observe religious commandments associated with membership in that group.

On this reasoning, it would appear disingenuous to say, for example, that a prosecutor could not eliminate Jews from a jury but could eliminate everyone who refrains from working on the Saturday Sabbath and who refrains from eating or drinking on the holiday of Yom Kippur.

On closer examination, however, the distinction may be more compelling than it seems. To eliminate people who celebrate the Jewish Sabbath and Yom Kippur is likely in fact to be a pretext for eliminating Jews. If so, then a prohibition on peremptory challenges based on religious affiliation would suffice to invalidate such peremptory challenges, for a judge could easily see through the subterfuge.

If a judge determines, however, that an attorney has sincerely applied a criterion of religiosity rather than pretextually applying a criterion of religious affiliation, then a very different (and far less historically tainted) sort of discrimination may be taking place.

Consider the following example. The prosecutor collects jury questionnaires and notes that seven potential jurors have responded "yes" to the question "Does religion play a central role in your every day life?" The prosecutor does not know from their responses whether the writers are Catholic or Protestant or Muslim or Jewish (or some combination of these or other religious affiliations). Nonetheless, she wishes to eliminate them because she believes that the greater one's commitment to religion, the less sympathetic one is to the harsh punishment of criminal offenders.

The prosecutor may well be mistaken in her assumption. One might expect that very religious people would be more, rather than less, inclined to judge misconduct harshly. The more religious a person is, one might assume (without researching the empirical question), the more willing she is to accept and enforce legal requirements that might seem excessively intrusive or moralistic.

Both assumptions might be mistaken, of course, and religiosity may have nothing to do with one's disposition toward the criminal law. But speculating about whether it does seems more like speculating about people who grew up in the Northeast, or people who enjoy watching television, than it does like stereotyping Jews or Muslims.

The question of how one practices one's religion (as opposed to the question of what one's religion is) is a question about personal preferences and priorities, and that is exactly the sort of question that we expect attorneys to ask in jury selection.

Analogue to Race and Gender: When Jurors May Permissibly Be Challenged

One way to think about religiosity is to compare it to what I would call "gender-osity" or "racial-osity," which I would define as a heightened commitment to one's identity as a member of one's gender or race.

In the case of gender, a potential juror might describe himself as a member of the "men's movement" who believes that women have encroached on male prerogatives and have turned masculine creatures into effeminate losers.

Another might describe herself as a woman whose greatest loyalty is to women and who considers herself a woman first and a citizen second. She might spend most or all of her time engaging in activism connected to her commitment to women's empowerment.

To eliminate such people from the jury pool would not reflect gender stereotyping so much as a desire to clear the jury of people holding strong ideological commitments through which they might filter their understanding of the litigated facts.

Similarly, the elimination of a white supremacist or one who identifies himself as "very white," and as racially committed to white people, should not raise the same red flags as the elimination of people based on race. Nor should the elimination of people who consider their primary commitment to be to the betterment of life for African-Americans, and who consider the U.S. government to be deeply prejudiced against African-Americans.

To be religious, gender-ous, or racial-ous is to experience one's self and one's identity in a way that might distinguish one from other members of one's religion, one's sex, or one's race. It might also generate similarities to people who are otherwise very different in their beliefs and commitments but whose identities center, respectively, on the same dimensions of their lives.

The Future: Will We See An End To Peremptory Challenges?

It may be that ultimately, peremptory challenges will fail to survive in the face of the growing number of categories that trigger suspicion under the Equal Protection Clause. Indeed, the more often an attorney is forced articulate a non-invidious reason for a peremptory challenge, the less freedom the attorney truly has to strike jurors for "any" reason, or for no reason at all.

Once scrutiny and review are the rule rather than the exception, peremptory challenges may become simply watered down versions of "for cause" challenges, in which the reasons can be somewhat less persuasive but still permissible. And maybe that is a good thing. As some have challenged the notion of firing employees for no good reason, one might argue that every potential juror has an interest in serving unless there is good cause to strike him.

For the time being, however, peremptory challenges are still available to attorneys and are still a significant source of freedom. Exercising that freedom, people hire jury consultants and otherwise attempt to guess which groups of people will be most hospitable to their charges, claims, or defenses.

As long as peremptory challenges are around, moreover, the way in which one experiences one's religion - no matter what that religion happens to be - seems as good a target as any for the exercise of such challenges. Perhaps the speculation, as I have suggested, is often incorrect, but incorrect stereotypes are not the same as invidious ones.

If people wish to assume that as a professor, I am more sympathetic to reckless drivers than pediatricians might be, then that assumption - however puzzling - does not implicate any deeply offensive strains of American history. If we are to have peremptory challenges, then this too must be allowed to flourish.


Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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