This week, the Supreme Court handed down a per curium opinion in the case of Thaler v. Haynes. Thaler is the latest in a string of decisions concerning limits on the use of peremptory challenges during jury selection. The first of these decisions was Batson v. Kentucky (1986) which sought to eliminate the use of race-based peremptory challenges. Under Batson, an attorney can no longer strike racial minorities from the jury unless the attorney can provide a “race neutral” explanation for the strike.
Among the many criticisms of Batson are that it is vague and difficult to enforce. Indeed, over the last fifteen years, all of the Batson rulings have been clarifications of the procedures to be used during Batson hearings, including what constitutes a discriminatory peremptory challenge and how lower courts should identify acceptable, race-neutral explanations for challenged strikes. The Thaler decision continues this clarification project.
Thaler v. Haynes stems from the trial of Anthony Haynes, who was tried and convicted of murdering a police officer in Texas. Two judges presided over the jury selection for Haynes’ trial. The first judge heard the voir dire questioning of the jurors, but another judge presided over the attorneys’ use of their peremptory challenges. The defense objected to the prosecutor’s peremptory strike of an African-American juror, citing Batson. During the subsequent Batson hearing, the prosecutor, who was required to provide a race-neutral explanation for the strike, claimed that the juror’s demeanor seemed “somewhat humorous” and “not serious.” The judge, who was not present during the juror's questioning and who had not seen the juror’s demeanor, accepted the prosecutor’s explanation as “race neutral” and overruled the defendant’s Batson objection. Haynes was convicted, but on appeal, a federal Appeals Court granted Haynes a new trial. However, the Supreme Court reversed that decision, ruling that a trial judge need not personally observe a juror’s demeanor in order to rule on a demeanor-based explanation for a challenged peremptory strike.
While Thaler may seem to be a relatively minor technical decision, it may have important consequences for attorneys and trial consultants. First, Thaler reverses a recent trend toward restricting the scope of acceptable race-neutral explanations for challenged peremptories. Snyder v. Louisiana (2008) rejected speculative juror hardship as an acceptable race-neutral explanation, and Miller-El v. Dretke (2005) rejected explanations for challenged strikes if the explanation also applied to jurors who were not struck. Second, Thaler could be seen as sanctioning the expanded use of demeanor-based explanations for challenged strikes. Juror demeanor includes an extremely wide range of actions and statements, potentially giving attorneys greater flexibility in the use of their peremptory challenges.