Document Type


Publication Date

Fall 2022




Boston Bar Association




Four decades after the Supreme Judicial Court ("SJC") first proscribed certain group-based peremptory challenges, eradicating unlawful discrimination in jury selection has gained renewed interest. Yet so long as Massachusetts retains the inherently flawed three-step "Batson-Soares" test, lawyers seeking to exclude jurors for impermissible reasons will proceed virtually undeterred.

The solution is not to abolish peremptory challenges, as Arizona did in 2022. When exercised lawfully, they enable litigants to remove jurors they legitimately perceive as biased where a challenge for cause, due to its narrow scope, legally cannot. Eliminating peremptories would provide the parties little opportunity to influence who decides the case, yielding that power to the one person with no stake in the verdict and who before trial is unaware of the precise evidence, arguments, and jurors' reactions thereto that will follow.

Nor is the answer in a criminal case to strip prosecutors of peremptories, a notion even Justice Thurgood Marshall-the Supreme Court's most outspoken critic of peremptories-rejected. There is no more justice in permitting a defense attorney to discriminate against individuals because of their race, ethnicity, gender, or sexual orientation than in allowing a prosecutor to do the same. Furthermore, as the Supreme Court noted in Gera v. McCollum, 505 U.S. 42 (1992, just as a conviction tainted by discriminatory jury selection erodes society's faith in the system, its confidence is "undermined where a defendant, assisted by [group-based] discriminatory peremptory strikes, obtains an acquittal." Attorneys on both sides of the aisle have an equal responsibility to eradicate, not perpetuate, unlawful discrimination.

Instead, the key to curbing discriminatory peremptory challenges is to root out those motivated by implicit, not merely explicit, bias by compelling attorneys to justify them with immediate explanations, and to overhaul the means by which trial and appellate judges evaluate their legitimacy.

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