The Yale Law Journal

June 2019

Jury Selection as Election: A New Framework for Peremptory Strikes

Criminal ProcedureConstitutional LawCivil Procedure

abstract. Peremptory strikes are a longstanding subject of controversy. Critics concerned with the continued discriminatory use of peremptory strikes after Batson v. Kentucky have called for their elimination. Defenders of peremptory strikes have resisted elimination by pointing to the value of impartiality that they believe peremptory strikes serve. Both sides of the controversy, this Note argues, have missed an additional value served by peremptory strikes: democratic legitimacy. The selection of jurors is analogous to the election of political representatives. Political elections give citizens a say in order to help legitimate the state’s coercive power. Likewise, jury selections give parties a say in order to help legitimate the trial’s coercive power. Viewing peremptory strikes through the lens of democratic legitimacy helps us to understand previously unjustified features of peremptory strikes—including the varying numbers of peremptory strikes across offenses and between parties, the default rule that parties need not justify their strikes, and the resistance to eliminating peremptory strikes in favor of expanded strikes for cause. But viewing peremptory strikes through this lens also highlights the need for certain reforms to current practices. The Note urges that we eliminate peremptory strikes by prosecutors in criminal proceedings and by the state in civil proceedings. Barring elimination, the Note asks us to require reasons for prosecutorial and state peremptories and to limit their numbers. It also asks us to give more peremptories to civil parties threatened with deprivations of liberty, on the theory that such deprivations require greater democratic justification than deprivations of property.

author. Yale Law School, J.D. expected 2020; University of Oxford, D.Phil. 2018; Yale College, B.A. 2013. I am deeply grateful to Ralf Bader, Doni Bloomfield, Micah Bloomfield, Stephen B. Bright, William N. Eskridge Jr., Jonathan Gould, Jonathan Green, Hon. Goodwin H. Liu, Daniel Markovits, Hon. Jeffrey A. Meyer, Thomas Sinclair, Kate Stith, James Q. Whitman, and Gideon Yaffe for their formative discussions and valuable comments on earlier drafts; and to Daniel Strunk, Christine Smith, Zoe Jacoby, and the Yale Law Journal for their excellent edits.