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29 U. Mich. J.L. Reform 981 (1995-1996)
The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the Blind Peremptory

handle is hein.journals/umijlr29 and id is 991 raw text is: THE FUTURE OF TIRE POST-BATSON PEREMPTORY CHALLENGE: VOIR DIRE BY QUESTIONNAIRE AND THE BLIND PEREMPTORY Jean Montoya* This Article examines the peremptory challenge as modified by Batson and its progeny. The discussion is based in part on a survey of trial lawyers, asking them about their impressions of the peremp- tory challenge, Batson, and jury selection generally. The Article con- cludes that neither the peremptory challenge nor Batson achieve their full potential. Primarily because of time and other constraints on voir dire, the peremptory challenge falls short as a tool in shap- ing fair and impartial juries. While Batson may prevent some un- lawful discrimination in jury selection, Batson falls short as a tool in identifying unlawful discrimination once it occurs. The Article proposes the reform of jury selection procedures to improve both the effectiveness of the peremptory challenge and Batson. The proposal is simple: Allow the usual number of alternat- ing peremptory challenges and allow the complete questioning of the jury panelists, but allow voir dire by questionnaire only and the exercise of blind peremptories. In a system of blind peremptories, jury panelists would be identified by number only, and no questions regarding cognizable group status (e.g., race, ethnicity, or sex) would be permitted. The suggested reform improves the effectiveness of the peremptory challenge in eliminating biased jurors. The blind pe- remptory, coupled with thorough attorney examination of the panel- ists by questionnaire, frees the litigant to exercise more principled peremptory challenges. The suggested reform also improves the effectiveness of Batson in eliminating unlawful discrimination in jury selection. The blind peremptory prevents unlawful discrim- ination injury selection by limiting the ability of the litigants to dis- cern the race, ethnicity, and sex of the jury panelists. INTRODUCTION This Article discusses the constitutional restraints on the exercise of peremptory challenges in jury selection. A peremp- tory challenge allows a litigant to exclude an otherwise qualified * Professor of Law, University of San Diego School of Law. A.B. 1982, Princeton University; J.D. 1985, University of California at Los Angeles School of Law. I am grateful to Deborah Kane and Tiffany Kemp for their able research assistance. I am also grateful to my colleagues, Roy Brooks, Mary Jo Wiggins, and Fred Zacharias, who commented on an earlier draft of the Article.

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