What Should the Rules Be for Peremptory Challenges?
Over at The Jury Talks Back, JRM has a post asking for feedback on what y’all think the rules should be for peremptory challenges of jurors:
Let us suppose that virtually all experienced prosecutors in Irishtown have discovered that, all else being equal, people of French ancestry are far more likely to vote not guilty than people of Irish ancestry. Names are useful to guess what ancestry people have.
By “all else being equal,” I’m saying that if an Irish person and a French person answer the questions the same way, with the same intonations, and have the same job/marital status/everything else, the Irish person is significantly more likely to vote for guilt. Prosecutors suspect this is because the French feel oppressed by the majority Irish population. Please assume, for these purposes, that prosecutors are very likely right about the tendencies of voting, though you need not assume they are right about the reason for those tendencies (maybe the French just like surrendering.)
Should the prosecutor be permitted to use his peremptory challenges partly or wholly on the basis that the juror appears to be of French ancestry? Should the defense be permitted to throw off Irish people on the basis that they are Irish? Neither side will throw off all members of the troublesome group, but they wish to use it as a factor.
Let’s take another one: Prosecutor believes that younger jurors are less likely to convict than older jurors, and wishes to use age as a factor. Should he be able to do so? How about the defense?
And, number three: Prosecutor believes that gay jurors are less likely to convict than straight jurors. Should she be able to do that? Should the defense be able to kick straight jurors for being straight? Should the defense be able to keep a gay juror based on their orientation?
Last one: Prosecutor believes that on a rape case, male jurors are more likely to convict than female jurors. Should she be able to use gender as a proxy?
He’s careful to emphasize that he’s asking what you think the rules should be — so pay no attention to what the rules actually are.