Massachusetts State House.
Boston Bar Journal

Point/Counterpoint: Peremptory Challenge

November 07, 2022
| Fall 2022 Vol. 66 #4

Peremptory Challenge Should be Reserved for the Defendant

By Rosemary Scapicchio

Numerous voices have been raised recently regarding eliminating or limiting peremptory challenges in the face of their discriminatory use. I argue that peremptory challenges should be abolished in criminal cases for the prosecution and preserved for the defendant to ameliorate the implicit bias that permeates the criminal justice system.

Current Law Governing Discriminatory Peremptory Challenges

The use of peremptory challenges to exclude prospective jurors solely because of bias presumed to derive from their membership in a discrete protected class is prohibited by both Art. 12 of the Massachusetts Declaration of Rights, see Commonwealth v. Soares, 377 Mass. 461 (1979), and the Equal Protection Clause of the Fourteenth Amendment, see Batson v. Kentucky, 476 U.S. 79 (1986). Both the federal and Massachusetts Constitutions prohibit a party from exercising a peremptory challenge based on race. See Commonwealth v. Jones, 477 Mass 307 (2017) .

“[O]nce a party contesting a peremptory challenge rebuts the ordinary presumption that the challenge was properly used by making a showing of an improper basis for the challenge, the challenging party must provide, if possible, a neutral explanation establishing that the challenge is unrelated to the prospective juror’s group affiliation.” Commonwealth v. Harris, 406 Mass. 461, 464 (1991). The burden of making a prima facie showing “ought not be a terribly weighty one.” Commonwealth v. Jones, 477 Mass. 307, 321 (2017). It is merely a “burden of production, not persuasion.” Id., quoting, Sanchez v. Roden, 753 F.3d 279, 302 (1st Cir. 2014). “Judges [should] think long and hard before they decide to require no explanation…for [a] challenge.” Id., quoting, Commonwealth v. Issa, 466 Mass. at 11 n.14 (2013). In Commonwealth v. Carter, 488 Mass. 91 (2021), Justice Lowy advocated for the elimination of the first step of the Batson challenge to protect against unconstitutional peremptory strikes by prosecutors based on sexual orientation.

Factors for courts to consider when determining whether to require a group-neutral reason for a challenge “begin[] with the number and percentage of group members who have been excluded,” which, under certain circumstances, is sufficient to make the requisite prima facie showing. Jones, 477 Mass. at 322. Other factors include: the possibility of an objective group-neutral reason for the strike or strikes; any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck; differences among various members of the allegedly targeted group who were struck; whether those excluded are members of the same protected group as the defendant or the victim; and the composition of the jurors already seated. Id.

Despite all the overturned cases resting upon improper Batson and Soares challenges, there is little question that prosecutors continue to strike disproportionate numbers of prospective Black and brown jurors from serving on criminal trials. See W. DeCamp and E. DeCamp, It’s Still About Race: Peremptory Challenge Use on Black Prospective Jurors, 57 Journal of Research in Crime and Delinquency Issue I (February 2020); Illegal Racial Discrimination in Jury Selection: A Continuing Legacy, 4 Equal Justice Initiative (2010). Equating a defendant’s due process right that his or her jury be bias-free and impartial with the government’s interest in the prosecution of crime ignores the racial bias that is evident in jury selection, and unfairly tips the scale of justice in favor the Commonwealth. With courts having acknowledged how implicit bias infects and interferes with a defendant’s right to a fair trial, including the Supreme Judicial Court in a letter to the judiciary and bar on June 3, 2020, it is time to address the legally sanctioned “whitening of the jury,” once and for all. Commonwealth v. Long, 485 Mass. 711 (2020).

Due Process: The Power of the Government v. The Rights of a Defendant

As an initial matter, the idea that the government is entitled to peremptory challenges is not supported by our Constitution. See Abbe Smith, A Call to Abolish Peremptory Challenges by Prosecutors, 27 Geo J. Legal Ethics 1163 (Fall 2014) (hereinafter “Smith”). The Bill of Rights was enacted to invest individual citizens with rights to temper the power of the government. Because the power of the state is plenary, individual citizens needed the means to protect themselves from government overreaching. That protection was given life in the form of the Bill of Rights. Extending individual rights reserved for the people to the very state whose power is thereby intended to be checked unfairly empowers the government and stands the core aspirations of the Constitution on their head.

The history of peremptory challenges illustrates the point. From 1305 to the 1800’s, peremptory challenges were permitted exclusively to defendants under both English and American law. See Charles J. Ogletree, Just Say No!: A Proposal to Eliminate Racially Discriminatory Uses of Peremptory Challenges, 31 Am. Crim. L. Rev. 1099 (Summer 1994). By 1800, all thirteen of the original states reserved peremptory challenges for defendants alone. See Smith, supra. In Virginia, prosecutor peremptory challenges were not allowed until 1919. Id. The purpose of reserving peremptory challenges to defendants was not to slant a jury to acquit the defendant, but rather to protect a defendant’s right to be tried by a jury that was fair and impartial. See Susan Bandes, Taking Some Rights Too Seriously: The State’s Right to a Fair Trial, 60 S. Cal. L. Rev. 1019 (May 1987).

The government plainly has no due process right to be tried by a fair and impartial jury. Prosecutors do not need to be protected from the power of the government, because they are the government. There is no need for the government to be protected from an “arbitrary and oppressive government” equal to the need of a defendant to be protected against the government. See Smith, supra. Giving the government both the power over a defendant and the right to peremptory challenges does not level the playing field; it tilts the playing field in favor the government and denies a defendant his rights to due process and a fair trial.

The Imbalance in Power Has Resulted in the Government Exercising Race-Based Challenges that Violate a Defendant’s Right to Due Process and a Fair Trial

When the government has both the power and the right to exercise peremptory challenges, it does so in a way that is unfairly adverse to a defendant. There are counties where prosecutors have excluded nearly 80% of African Americans qualified for jury service. See Smith, supra. Because prosecutors continue to strike disproportionate numbers of prospective African-American jurors from service on criminal trials, Black and brown defendants continue to be tried by all-white or majority-white juries in the 21st century. See Batson v. Kentucky, 476 U.S. 79, 102-03 (1986) (Marshall, J., concurring).

In Flowers v. Mississippi, 588 U.S. __, 139 S. Ct. 2228 (2019), the Supreme Court acknowledged that Batson recognized the need to protect defendants from the power of the government. The Flowers Court also acknowledged that the central goal of the Fourteenth Amendment was to end racial discrimination by governmental actors. Id. Batson and Soares challenges, however, have failed to protect defendants from implicit racial bias on the part of the government. Justice Marshall recognized the flaws in Batson and noted that the decision’s greatest defect is its assumption that the courts are capable of detecting race-based challenges to Afro-American jurors. See Smith, supra. By assuming good faith on the part of all involved, Baston’s mandate requires the parties to confront and overcome their own racism. Batson, 476 U.S at 102 (Marshall concurring). If the courts themselves are tainted with implicit bias, a trial judge’s ability to recognize such bias in a prosecutor’s exercise of a peremptory challenge appears questionable at best. By courts failing to recognize and correct race-based challenges by prosecutors, “whitened” juries are stripped of minority representation, do not represent a fair cross-section of the community, and fail the test of fairness and impartiality commanded by our Constitution.

The Elimination of All Peremptory Challenges Infringes on a Defendant’s Right to Due Process and a Fair Trial

Eliminating all peremptory challenges for both the government and the defendant is not the answer. Depriving defendants of peremptory challenges will leave the criminally accused at the mercy of the vast power of the government. In general, defense peremptory challenges do not tend to be exercised against Black and brown venire-persons. See Smith, supra. On this basis alone, preserving the peremptory for defendants while denying it to prosecutors should lessen the incidence of racial discrimination in jury selection.

The Elimination of Prosecutor Peremptory Challenges Promotes Bias-Free Jury Selection

The one-way elimination of peremptory challenges for the government will restore the defendant’s right to a fair and impartial jury. It is well documented that prosecutors use peremptory challenges to strike prospective jurors who are African American. And it is beyond peradventure that race matters in jury selection. Verdicts rendered by diverse juries are more thoughtful and reliable than those of overwhelmingly white juries. See Smith, supra. A disproportionate number of Black and brown defendants are tried by non-diverse juries. See Samuel R. Sommers, Race & the Decision Making of Juries, 12 Legal & Criminological Psychol. 171, 181 (2007). The racism thus embedded in the criminal justice system plays a significant role in jury empanelment.

In Massachusetts, for example, prosecutors are allowed to run the criminal history records of prospective jurors, over the defendant’s objection, and then seek to challenge a juror for cause based on his or her criminal record. If the “cause challenge” is denied, a prosecutor is then permitted to exercise a preemptory challenge to that juror. See Commonwealth v. Grier, 490 Mass. 455 (2022). Because Massachusetts courts have recognized the over-criminalization of Black and brown citizens and acknowledged that Black and brown citizens are more likely to be detained and arrested than white ones, see Commonwealth v. Long, 485 Mass. 711 (2020), allowing the Commonwealth to run juror records and then strike for cause on such basis is itself a form of self-perpetuating racism. Non-diverse juries are more likely to convict Black and brown defendants, and the striking of those with criminal records from jury service via the peremptory challenge diminishes the likelihood of diversity on the jury. This is the stuff of systemic racism in criminal justice.

If the goal of the Fourteenth Amendment is to root out race discrimination by government actors, then prohibiting the government from exercising preemptory challenges known to reflect racial bias is a sensible way to further this important constitutional interest.

For decades now, the court system has caused an unconstitutional skewing of the rights of the criminally accused by adopting the notion that a fair trial requires the rights reserved for individual defendants be extended to the government. The elimination of all government peremptory challenges, which are far too often raced-based, will result in more diverse juries and protect a defendant’s constitutional right to a fair and impartial jury.

Rosemary Curran Scapicchio is a highly experienced criminal defense attorney in Boston, Massachusetts. She has been trying serious felony cases in the State and Federal court for 30 years. She also has a very successful appellate practice.

Let’s Not Throw the Baby Out with the Bathwater

By Judge Linda E. Giles (Ret.)

 The peremptory challenge has been a recognized part of our American jury system for more than 232 years. Law of April 30, 1790, c. 10, sec. 3, 1 Stat. 119 (1790). It was not until 36 years ago, however, that the United States Supreme Court, in Batson v. Kentucky, 476 U.S. 79 (1986), first articulated a standard for addressing the illegitimate use of peremptory challenges to discriminate against protected classes. As jurists and practitioners know, cutting the Gordian knot of unbiased jury selection has been a lengthy process. Based on my own 29 years of experience as a trial judge, I can attest that it also has been a difficult one.

The oft-cited case of Commonwealth v. Jones, 477 Mass. 307 (2017), is illustrative. (This author was the trial judge.) In reversing the defendant’s first-degree murder conviction, the Supreme Judicial Court relied on an unheralded, habeas review opinion of the federal First Circuit Court of Appeals, Sanchez v. Roden, 753 F.3d, 279 (1st Cir. 2014), to conclude that, henceforth, trial judges must consider six factors when evaluating whether the party challenging a peremptory strike has made a prima facie showing of impropriety. Jones, 477 Mass. at 322.[1] Throughout his lengthy, multi-court odyssey, the defendant preserved his BatsonSoares[2] objection and maintained that the Commonwealth had exercised strikes of young Black men from the jury unconstitutionally. Nevertheless, a Massachusetts Superior Court judge and a Massachusetts Appeals Court panel on direct review thereafter, see Commonwealth v. Sanchez, 79 Mass. App. Ct. 189 (2011); a United States District Court judge on remand from the First Circuit Court of Appeals, see Sanchez v. Roden,  2015 WL 461917 (D. Mass. Feb. 4, 2015); and even the First Circuit Court of Appeals itself on its second look, see Sanchez v. Roden, 808 F. 3d (1st Cir. 2015), all determined that the defendant had failed to establish a BatsonSoares violation. Not until the Supreme Judicial Court reviewed the defendant’s subsequent motion for post-conviction relief did Mr. Sanchez prevail. See Commonwealth v. Sanchez, 485 Mass. 491 (2020). Even then, the Court acknowledged that “it is easy to see how the [pattern of conduct] language of Soares continues to sow confusion.” Id. at 510.

The difficulty in applying the BatsonSoares framework faithfully, however, does not lead me to believe that we should throw the baby out with the bathwater and eliminate peremptory challenges altogether. First, challenges for cause are inherently limited in scope: such challenges require a stated reason. Preserving peremptory challenges allows the trial attorneys to retain some measure of control over jury selection, especially in cases where they intuit that the venireperson is being disingenuous or deluded about her/his/their ability to be fair. Second, peremptory strikes afford litigants a chance to exclude jurors they believe will be unfavorable to their side and thereby achieve a fairer and more “middle ground” jury. Third, maintaining only challenges for cause vests all the power in the hands of well-intentioned but fallible judges, who know far less about the upcoming evidence than the attorneys. Peremptory challenges serve as a fail-safe measure when a judge is (or reasonably is perceived as) just not getting it. Fourth, eliminating all peremptory strikes arguably infringes on the defendant’s due process right to a fair trial. See Commonwealth v. Benoit, 452 Mass. 212, 218 n.6 (2008); Soares, 377 Mass. at 488. Finally, abolishing peremptory challenges may chill an attorney’s ability to advocate prospectively for the expansion of protected classes, e.g., to persons of a particular political ideology or socioeconomic class.  Cf. Commonwealth v. Carter, 488 Mass. 191, 201 (2021).

To promote the workability of the current peremptory challenge framework, however, I make the following recommendations.

(1) Encourage during jury empanelment the robust use of both attorney voir dire, see Commonwealth v. Steeves, 490 Mass. 270, 287 (2022); American Bar Association, Principles for Juries and Jury Trials, Principle 11(B)(3) (rev. 2016) (voir dire should be “sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges”), and probing juror questionnaires over and above those contemplated under G. L. c. 234A, sec. 22.

(2) Eliminate the first step in the BatsonSoares test, which requires that the party objecting to a peremptory challenge make a prima facie showing of discrimination, see Sanchez, 485 Mass. at 515 (Lowy, J., concurring); after all, the Supreme Judicial Court has urged “judges to think long and hard before they decide to require no explanation . . . for [a] challenge,” Jones, 477 Mass. at 321, quoting Commonwealth v. Issa, 466 Mass.  1, 11 n.14 (2013). To this end, Superior Court judges should also consider reporting to the Appeals Court, pursuant to G. L. c. 231, sec. 111 and Massachusetts Rule of Criminal Procedure 34, the issue of abandoning the first prong of the BatsonSoares test. See Sanchez, 485 Mass. at 518 (Gants, C.J., concurring) (the Court should consider departing from its current jurisprudence “in a case where the question is squarely presented and where we have the benefit of briefing by the parties and amici”).

(3) Abolish the requirement that opposing counsel (or the judge sua sponte) must object whenever a peremptory is lodged, for a failure to object may be a function of the opponent’s own implicit bias or reluctance to offend.

(4) Advocate for the passage of a revised Senate Bill 918, which proscribes the improper use of peremptory challenges, so long as it is made applicable to gender and sexual orientation (not just race and ethnicity) and scraps the objection requirement.

After more than 200 years of jurisprudence, only one state so far, Arizona, has abolished the use of peremptory challenges, per the order of its Supreme Court. That is hardly a ringing endorsement for the proposal. By contrast, section leaders of the American Bar Association “generally agree that eliminating peremptory challenges may not be the best way to empanel an impartial and fair jury.” Kelso L. Anderson, Will Striking Peremptory Challenges Remove Bias in Juries?, Litigation News, Vol. 47, No. 2, Winter 2022, at 10-13 (American Bar Association Litigation Section). Subject to the foregoing reforms, I say we give the attorneys, who are in the trenches of courtroom practice daily, as much freedom as possible to achieve the legitimate results they desire when picking a jury.

[1]  The prescribed factors are: “(1) ‘the number and percentage of group members who have been excluded’; (2) ‘the possibility of an objective group-neutral explanation for the strike or strikes’; (3) ‘any similarities between excluded jurors and those, not members of the allegedly targeted group, who have been struck’; (4) ‘differences among the various members of the allegedly targeted group who were struck’; (5) ‘whether those excluded are members of the same protected group as the defendant or the victim’; and (6) ‘the composition of the jurors already seated.”” Commonwealth v. Henderson, 486 Mass. 296, 311-312 (2020), quoting Jones, 477 Mass. at 322.
[2] See Batson, 476 U.S. 79 (1986); Commonwealth v. Soares, 377 Mass. 461 (1979).

Judge Linda E. Giles was engaged in the private practice of law, specializing in trial practice, before joining the bench.  In 1991, she was appointed to be an Associate Justice of the Boston Municipal Court; and, in 1998, she was elevated to the Superior Court. Before retiring from the Superior Court in December 2020, Judge Giles participated in many educational programs for judges and lawyers over the years on a variety of topics, such as the enhancement of the judicial system, access to justice, domestic violence, and criminal law.  She continues to work as Adjunct Professor of Law at Suffolk University Law School.

 Overcoming the Peremptory’s Greatest Challenge

By Brian A. Wilson

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 Georgia 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.

Batson-Soares’ Greatest Flaw

Batson-Soares’ most fundamental flaw is its ignorance of the role implicit bias plays in the peremptory challenge process, a phenomenon courts nationwide have only recently acknowledged. Unconscious biases may cause the most scrupulous attorney to view jurors of a certain race, ethnicity, gender, or sexual orientation differently than others, leading the lawyer to exercise a challenge without realizing that its basis is rooted in such prejudice. Yet by requiring the opposing party to prove at step one an “inference” that the peremptory has “discriminatory purpose,” and at step three that it was in fact intentional, Batson-Soares grants virtual immunity to challenges motivated by unconscious bias. It does so even though the harm to the excluded juror, to the community, and, if lodged by the prosecutor, to the defendant is the same as if the discriminatory motivation had been conscious.

Ending Step One

Merely modifying step one, however, to require an inference of “explicit or implicit discrimination” rather than “discriminatory purpose” before mandating an explanation would miss the mark. Despite the SJC intending the threshold burden to be modest, step one in any form hinders the discovery at step two of what is often the most incriminating evidence of prejudice: the purported rationale for the challenge. Though critics note that any lawyer “can easily assert facially neutral reasons for striking a juror,” Batson v. Kentucky, 476 U.S. 79, 106 (1986) (Marshall, J., concurring), it is the proffered reason itself which often reveals it to be based on the person’s protected identity—such as where a prosecutor claims the juror would favor the defendant by virtue of their shared identity, or defense counsel argues the same regarding the victim. Or, a rationale may be so implausible that it betrays the discrimination it intends to conceal, such as the oft-cited example from Purkett v. Elem, 514 U.S. 765 (1995), where the prosecutor claimed he struck two Black venire-members because their facial hair appeared “suspicious” and one had “long, unkempt” hair. Under Batson-Soares, such spurious reasons might never be exposed if an inference of discriminatory intent were not first proven; eliminating step one would lift this shroud of secrecy.

Doing so would not only expose but deter discriminatory challenges. Requiring attorneys to justify their peremptories will compel them to examine their inner biases and consider whether their challenges might be based on unlawful considerations they overlooked initially.

This measure also would put an end to convictions being vacated where a judge erroneously finds that the defendant failed to establish the required inference, which in Massachusetts mandates a new trial.

Efforts to eliminate step one in the Commonwealth are already underway. Justice Lowy first recommended doing so in Commonwealth v. Sanchez, 485 Mass. 491 (2020), reiterating his proposal in Commonwealth v. Carter, 488 Mass. 191 (2021). Massachusetts Senate Bill 918, currently under consideration, proposes the same. Similar to rules recently enacted in Washington, California, New Jersey, and Connecticut, it would require one lodging a peremptory challenge to offer a reason upon either the opposing party or the judge objecting. In fact, removing step one would not change the process radically, given that Massachusetts law not only permits but encourages judges to forego step one and proceed to step two sua sponte.

Ending the Real First Step

Eliminating step one, however, will only go so far in curbing unlawful discrimination in jury selection. Senate Bill 918 and measures taken by other states operate on the same flaw: the failure to recognize that “step one” is not actually the first step in the process. The Batson-Soares inquiry does not even begin unless a “timely objection” is lodged. Thus, whether a discriminatory challenge is exposed or proceeds unimpeded depends on whether opposing counsel, or the judge sua sponte, objects to it.

While one might expect any attorney or judge to object unhesitatingly to a discriminatory challenge, there are many reasons why one might not. Just as implicit bias may motivate exercising a peremptory, the unconscious biases of opposing counsel and the judge might prevent them from recognizing its discriminatory nature. Unfamiliarity with the developing intricacies of the law in this context might also play a role. Even the most astute lawyer or judge who perceives a potentially unlawful challenge may resist raising an objection. One might be reluctant to lodge what is essentially a public accusation that the lawyer harbors prejudice against a certain group, or at least engages in conduct that discriminates against its members, particularly if uncertain whether implicit rather than explicit bias motivated the peremptory. Since step three involves a determination of whether the rationale is genuine, an opposing lawyer or judge might also hesitate to imply that the lodging attorney will lie to the court about a challenge’s basis. Reluctance to object may likewise be grounded in a concern that an accusation could subject the lodging attorney to an ethics inquiry or other reputational harm, that the attorney otherwise commands respect in the legal community, or that it would sour the relationship between the lawyers and the judge, particularly if they frequently have cases together. A lawyer prone to engaging in similar conduct, whether in the instant trial or others, might fear being exposed by a counter-accusation. Even a lawyer with no such culpability may fear unfounded retaliation. One might also believe an objection would be futile because, under the circumstances of the case, the Batson-Soares’ intent requirement renders meeting the step three standard, or even step one’s, virtually impossible.

Eliminating the objection requirement and requiring the party to offer its rationale whenever a peremptory challenge is lodged, would avoid the possibility that a discriminatory strike evades review. While doing so would, to be sure, change the nature of the peremptory significantly, it would help accomplish what Batson and Soares set out to do.

Requiring every peremptory to be explained and ruled upon would require patience, particularly in murder trials in which each party is granted as many as sixteen (or even more for the Commonwealth in a trial of multiple defendants) as opposed to the far fewer allotted in other criminal and civil cases. Yet, if Massachusetts is serious about implementing meaningful reform, concerns regarding the expenditure of time and resources should take a back seat to evidence that unlawful discrimination infects the trial process.

Mending Step Three

Step three of Batson-Soares is even more problematic, starting with confusion as to the precise standards. While recent SJC cases describe it as a judicial determination of “whether the explanation is both adequate and genuine,” the Court’s most recent decision, Commonwealth v. Grier, 422 Mass. 455 (2022), adds that the judge must decide whether the opponent “has proved a discriminatory purpose.” Meaningfully restructuring the test will require removing the “purpose” requirement altogether, and replacing it with an unambiguous mandate that the judge deny a challenge motivated by either explicit or implicit bias. It also serves no legitimate purpose for step three to impose the burden of proof on the opposing party, which flows from the longstanding but archaic principle that peremptory challenges are presumed to be valid. See Commonwealth v. Carter, 488 Mass. at 196. Batson-Soares’s step three also lacks guidance as to what standard of proof the judge must apply, noting only that the judge “must evaluate whether the proffered reasons were adequate and genuine.” See id.  As it does not specify the extent to which the opposing party’s proof must convince the judge, such as by a preponderance of the evidence or by clear and convincing evidence, Batson-Soares risks producing inconsistency in the way judges apply it.

Senate Bill 918 would make drastic changes to the way peremptory challenges are assessed at step three. As with the four states noted above, the proposed legislation fittingly states that a judge “need not find purposeful discrimination” to reject the challenge, thereby rendering those peremptories motivated by implicit bias equally unlawful. The bill, however, proposes an unworkable step three standard: the trial judge would be required to deny the challenge if “an objective observer could view race or ethnicity as a factor in [its] use.” Creating a hypothetical “objective observer” is unnecessary since the judge, as in any other context, must view the evidence objectively. It would only present an additional point over which legislators might disagree, which risks hindering its passage and delaying progress. Moreover, the standard sets too low a bar by essentially mandating the rejection of the challenge if there exists any possibility that an objective person might believe it was motivated by discrimination. Put another way, a judge could allow a peremptory challenge only if convinced there exists no possibility whatsoever that it was based on improper considerations, a standard even more exacting than proof beyond a reasonable doubt. A more effective standard would require the judge to deny a peremptory challenge upon finding by a preponderance of the evidence that explicit or implicit bias regarding the juror’s race, ethnicity, gender or sexual orientation was a factor in exercising it.

Most glaringly, like three of the four states’ rules mentioned above, Senate Bill 918 applies to race- and ethnicity-based peremptories only, leaving those based on gender and sexual orientation to be assessed via the flawed Batson-Soares test. Acknowledging the pervasiveness of and taking a true stand against gender- and sexual orientation-based discrimination requires that the law be applied to all four protected identities.


Unequivocally deeming explicit and implicit discrimination unlawful and providing the proper tools to identify invidious bias that lawyers, courts and society too often overlook, is the key to meaningful peremptory challenge reform. Any sacrifice in judicial economy comes not at a price, but as an investment in the integrity of our system of justice. Nearly five decades ago, Soares was instrumental in paving a path for Batson to outlaw race-based peremptories. Massachusetts once again has a unique opportunity to do what other jurisdictions have not.

Brian A. Wilson is a Lecturer and Clinical Instructor within the Criminal Law Clinical Program at Boston University School of Law and supervisor of its Prosecutor Clinic. He serves as a Special Assistant District Attorney in Norfolk County, where he previously spent 17 years as an appellate and Superior Court trial prosecutor. He is a graduate of Emory University and Boston University School of Law, and is a member of the Boston Bar Association.