March 10, 2009

INDIANA CASE LAW UPDATE: Proper Use Of Peremptory Challenges In Jury Trials

Indiana Case Law Update




       Stephen E. Arthur

            A “peremptory challenge” is an objection to a prospective juror that may be asserted without stating a reason or cause. Peremptory challenges are governed by Trial Rule 47 and Indiana Jury Rule 18. The peremptory challenge has “very old credentials” in Indiana litigation and operates to reject rather than select prospective jurors. It is an important tactical tool, the use of which is often guided more by a party’s intuitive impressions about a prospective juror, rather than the actual answers a juror provides in voir dire. In this manner, the peremptory challenge is very different from a challenge for cause. As noted by the Indiana Supreme Court, “Unlike challenges for cause, the peremptory is often exercised on ‘hunches’ and impressions having to do, perhaps, with a prospective juror’s habits, associations, or ‘bare looks.’” Merritt v. State, 488 N.E.2d 340, 341 (Ind. 1986). Although the exercise of a peremptory challenge is virtually unrestricted, there is one important limitation - the challenge may not be used in a constitutionally impermissible manner, such as to exclude jurors because of race or gender. This limitation is affirmed in Jury Rule 18(d) which states:

If it appears to the court that a particular peremptory challenge may have been used in a constitutionally impermissible manner, the court upon its own initiative may (a) inform the parties of the reasons for its concern, (b) require the party exercising the challenge to explain its reasons for the challenge, and (c) deny the challenge if the proffered basis is constitutionally impermissible.


Jury Rule 18(d) is modeled after the 3-part analysis established by the United States Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986). That case, a criminal action, held the Equal Protection Clause forbids a prosecutor from peremptorily challenging potential jurors solely on the basis of race, or on the assumption that jurors of one race will be unable to impartially consider the state’s case against a defendant of the same race. Batson has been extended to prevent a criminal defendant’s attorney from engaging in purposeful racial discrimination when exercising a peremptory challenge, Georgia v. McCollum, 505 U.S. 42 (1992), and the Batson procedure is also applicable to Indiana civil actions.  See, Wilson v. Kauffman, 563 N.E.2d 610 (Ind. Ct. App. 1990). The Batson prohibition against using a race-based peremptory challenge applies equally to prevent a minority party from improperly striking white jurors from the jury pool. This principle was recently affirmed by the Indiana Supreme Court in Jeter v. State, 888 N.E.2d 1257 (Ind. 2008), cert. denied, 129 S.Ct. 645 (2008).

In Jeter, a jury found Jeter guilty of murder in the shooting death of an Indiana State Trooper. On appeal, Jeter challenged a trial court ruling that denied him the ability to strike a white juror following a Batson proceeding. During voir dire, Jeter used his first nine peremptory challenges to exclude six white males and three white females. The State objected on grounds that Jeter had excluded these jurors on the basis of race and perhaps gender. Initially, the trial court overruled these objections. However, when Jeter attempted to use his next and 10th peremptory challenge to exclude a nineteen-year-old white male (“Juror 212”), the State again objected. This time the trial court initiated a Batson analysis and instructed Jeter to demonstrate a race-neutral reason for striking Juror 212. Jeter responded that Juror 212’s father was a police officer, his grandfather had been a local attorney and judge, and the juror had responded “I guess not” when asked if he could think of any murders that were not suitable for the death penalty. Although the reasons given for striking Juror 212 constituted a “race-neutral” explanation under Indiana law, the trial court rejected Jeter’s explanation, calling it a “pretext,” and disallowed the peremptory challenge. 

On transfer, Jeter argued that his “pattern” of striking whites from the jury was the “inevitable consequence” of a jury pool that was predominately white, and that striking white jurors was part of a trial strategy intended to secure a more racially diverse jury. In rejecting this argument, the Supreme Court stated a number of principles that amplify the intended application of Batson. First, a peremptory challenge may not be used to offset the effects of a predominately white jury pool. Second, the trial court is not bound to accept a valid race-neutral explanation where the court concludes the striking party has used the peremptory challenge to advance purposeful racial discrimination. Third, although the ultimate burden of persuasion regarding purposeful discrimination rests with the party opposing the strike, it is the trial court’s duty to determine the “persuasiveness of the justification” and deny the challenge if it is constitutionally impermissible. 



Stephen Arthur is a partner with Harrison & Moberly, LLP ( concentrating his practice in federal and state business and tort litigation.  He is the author of Indiana Civil Trial Practice, and co-author of Harvey’s Indiana Rules of Procedure Annotated. The opinions and analysis expressed in this column are those of the author.



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