Argued October 15, 1982
Decided December 14, 1982
Appeal from the Appellate Division of the Supreme Court in the Second Judicial Department, JAMES G. STARKEY, J.
Courtenay L. Wiltshire for appellant.
Elizabeth Holtzman, District Attorney ( Barbara D. Underwood and Katherine N. Rose of counsel), for respondent.
CPL 270.25 states that: "A peremptory challenge is an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged from service." This right to peremptory challenges has been exercised by prosecutors and defendants in this State pursuant to the same or similar statute for over 100 years (see Walter v People, 32 N.Y. 147). In Swain v Alabama ( 380 U.S. 202), the Supreme Court determined that a prosecutor is not required to disclose his reasons for excusing prospective jurors in a particular case on the mere allegation by the defense that peremptories are being used to exclude minority jurors. We find nothing in our State Constitution or statutes which compels a departure from this holding of the Supreme Court.
I observe that on this underlying issue the People join defendant in contending that the provisions of our State Constitution prohibit the use of peremptory challenges to exclude potential jurors solely on the basis of race.
Defendant was convicted of robbery in the first and second degrees for his part in the November 15, 1978 gunpoint robbery of Philip Roberts, a student at Pratt Institute. After Roberts had withdrawn money from an automatic bank teller machine, the defendant and several companions pushed him into the vestibule of an apartment building and took his money. Defendant was identified by Roberts several weeks later when, while Roberts was being driven by police around the neighborhood where he was accosted, he spontaneously picked out the defendant from a group of four individuals standing on a street corner.
During jury selection, the defense moved for a mistrial, claiming that the prosecutor had unlawfully used peremptory challenges to exclude jurors on the basis of race. In the alternative, the defense moved for a hearing to inquire into the prosecutor's use of her peremptory challenges. In pursuing these motions, the defense pointed out that 8 of the 11 peremptory challenges exercised by the prosecutor had been used to exclude all of the blacks and the only Hispanic prospective juror drawn. Nevertheless, these defense motions were denied. The court relied upon Swain v Alabama ( supra) in concluding that it is inappropriate to inquire into a party's motives solely on the basis of the manner in which peremptory challenges have been exercised in a single case. On the appeal from defendant's conviction, the Appellate Division affirmed, without opinion. Defendant now argues to this court, inter alia, that the trial court committed reversible error in denying his motion for a mistrial or for a hearing to inquire into the prosecutor's intentions and motives in exercising peremptory challenges to exclude certain jurors.
The issue of minority representation on criminal juries has been the subject of several decisions by the Supreme Court. These decisions draw a critical distinction between the jury pool, which is the group of prospective jurors from which the litigants will select a jury to hear their particular case, and the jury that is ultimately chosen to serve. The Sixth Amendment requires that the jury pool be selected from a representative cross section of the community ( Taylor v Louisiana, 419 U.S. 522), and distinctive groups in the community may not be systematically excluded from the pool. Once the jury pool is selected, however, prospective jurors may then be excluded through the exercise of cause challenges and peremptory challenges. The challenge for cause removes those jurors who either admit to actual bias or those who admit to circumstances from which the law will infer an overwhelming potential for bias. The peremptory challenge, in contrast, is a challenge for which no reason need be assigned. This challenge enables either the prosecutor or the defense to exclude prospective jurors who may harbor subtle prejudices which may be sensed by counsel but which are not explicitly revealed by the prospective juror on voir dire. It is also designed to permit counsel to remove prospective jurors who counsel may have alienated during the course of questioning on voir dire.
The number of peremptory challenges that may be exercised by each party is strictly limited by CPL 270.25 (subd 2).
In Swain v Alabama ( supra), the Supreme Court clearly determined that the prosecutor's motives for striking particular jurors may not be subjected to scrutiny simply upon the assertion by the defense that peremptories are being used to exclude minorities. The court noted that only if it can be established that the prosecutor's office is using peremptory challenges systematically to exclude minorities from juries over a period of time will a prima facie case of discrimination be made out. The decision in Swain upheld the traditional model for jury selection, which "assumes that impartiality is best realized by first choosing a pool of jurors from the community at large, excusing those clearly biased, and then permitting the parties to excuse additional jurors who, in their view, are less likely than others to provide a fair trial" (Saltzburg Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md. L Rev 337, 359).
In urging a reversal in this case, defendant argues that this court should reject the holding of the Supreme Court in Swain on the basis of the provisions of our State Constitution. Defendant would have this court overturn the present system of limited peremptory challenges by requiring the prosecutor to shoulder the burden of assigning and proving justifiable reasons for his exercise of these challenges whenever there is a statistically supportable allegation that the prosecutor is removing prospective jurors on the basis of their status as minority members of the community. The defendant, in effect, would require the prosecutor to prove that a prospective juror's racial biases, whether based upon group affinity or otherwise, would interfere with the attainment of a fair and impartial verdict before that juror could be excused. We decline to adopt this position for it would convert the peremptory challenge system into a system based solely upon challenges for cause. Indeed, we find no persuasive reason for departing from our present method of jury selection.
A system which would require counsel to prove that a prospective juror harbors racial, sexual or religious prejudices that could interfere with the attainment of a fair and just verdict would succeed in eliminating only the most blatant biases from the jury. To begin with, we must recognize that it is the sad reality of our times that predisposition and bias may, in some individuals, be based upon racial, religious or sexual status. At the extreme end of the spectrum, those who admit to such prejudices or admit to membership in groups from which such prejudices may readily be inferred, obviously should be disqualified from sitting on juries where these prejudices could interfere with the attainment of a fair and just verdict. For example, fundamental fairness dictates that a member of the Ku Klux Klan be disqualified from sitting on a jury in a case in which a black man is accused of assaulting a white. These individuals can adequately be eliminated through the challenge for cause. Just as dangerous to the attainment of justice, however, is bias on the part of jurors which is not quite as overt in speech or behavior. While the questioning that takes place on voir dire is perfectly suited to ferret out and eradicate blatant and admitted bias from the jury, it is simply unlikely to disclose certain subtle and hidden biases which could prevent the jury from rendering a fair and impartial verdict. Several reasons for the inadequacy of voir dire for this purpose have been identified (see Saltzburg Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representations, 41 Md. L Rev 337, 355). First, jurors may be reluctant to admit their prejudices before spectators or others present in the courtroom during the voir dire. Second, certain prospective jurors may evade full disclosure of their prejudices in an effort to avoid being struck from the jury. Finally, other prospective jurors may simply be unaware of the existence of certain biases or prejudices they may harbor. A system of jury selection in which reasons must be assigned for the removal of individual jurors seriously hampers the elimination of these biases from the jury. The inadequacy of relying upon voir dire to filter out all potential biases based upon group affinity is exacerbated by the reluctance of some Trial Judges to permit extensive, time-consuming voir dire examination.
In this vein, it has long been recognized that one who discriminates "cannot be expected to declare or announce his purpose. Far more likely is it that he will pursue his discrimination practices in ways that are devious, by methods subtle and elusive — for we deal with an area in which `subtleties of conduct * * * play no small part'" ( Matter of Holland v Edwards, 307 N.Y. 38, 45; see, also, Imperial Diner v State Div. of Human Rights, 52 N.Y.2d 72, 77). In order to effectively meet this problem the usual and more demanding standards of proof have been reduced in cases where the object of the law is to eliminate discrimination or bias ( Matter of Holland v Edwards, supra). In the jury selection process that rule is served by the peremptory challenge which permits an experienced attorney to eliminate a juror who he believes might be biased against his case in instances where the potential bias cannot be disclosed or articulated to the degree necessary to establish a challenge for cause.
We further note that inherent in relying upon the cause challenge to eradicate certain prejudices from the jury is that litigants may be reluctant to engage in the intensive questioning needed to reveal the biases of potential jurors. Pointed questions directed at an area as sensitive as a potential juror's racial, religious or sexual biases may, even where such biases do not exist, alienate a juror against counsel and his position. To avoid the possibility of such juror alienation, counsel may be forced to accept the risk that biased jurors may be sworn to serve on the jury.
Furthermore, to the extent that restrictions on a party's exercise of the peremptory challenge would require more extensive voir dire to disclose provable racial biases, as well as requiring extensive evidentiary hearings on motions to determine the motives of a party exercising a peremptory challenge, the rule proposed by the defendant would invite the additional delays at trial which our justice system can ill afford. In this era of over-crowded court calendars and scarce judicial resources, we should not alter the trial stage in such a way as to necessitate or encourage unwarranted additional lengthy delays.
Finally, under the system proposed by defendant there is a danger that the prejudices of prospective jurors may not be recognized by Trial Judges, despite the presence of answers given on voir dire which suggest the possibility of bias. Due to the sensitivity of the subject of racial, religious or sexual prejudice, Trial Judges may be hesitant to strike a juror on this basis, particularly when the juror denies the existence of such bias. As a result, the spectre of racial prejudices influencing jury verdicts may be heightened rather than hindered under the defendant's proposed formulation. This danger does not exist under a system where counsel may excuse a limited number of prospective jurors without assigning specific reasons for doing so.
Although concern has been expressed over the possible abuse of a system containing unrestricted peremptory challenges, the potential for abuse is limited by certain practical considerations. If counsel excuses potential jurors on the basis of group status he or she will waste limited peremptory challenges which could be used to excuse other potential jurors who might be more predisposed to the opponent's position. Furthermore, counsel must be aware that he may alienate those jurors ultimately selected if it becomes apparent that selection was made upon the basis of group status.
For all of the foregoing reasons, we find no compelling basis for rejecting the holding of the Supreme Court in Swain v Alabama ( supra). The benefits of requiring the prosecutor to justify the exercise of certain peremptory challenges are simply outweighed by the damage to a system of jury selection which best serves to guarantee a fair and impartial jury. As the Supreme Court noted, the peremptory challenge "`must be exercised with full freedom, or it fails of its full purpose'" ( Swain v Alabama, supra, at p 219, citing Lewis v United States, 146 U.S. 370, 378).
Additionally, some comment should be made regarding the defendant's reliance (and, indeed, that of the District Attorney) upon certain provisions of our State Constitution. They first refer to section 2 of article I of the New York Constitution, which guarantees the right to trial by jury, and section 1 of that same article, which appears to specify that conviction of a defendant must be by "the judgment of his peers." In Taylor v Louisiana ( 419 U.S. 522, supra), the court held that the Sixth Amendment right to a jury trial, a right which obviously and necessarily implies the right to a judgment of one's peers, requires only that distinctive groups in the community may not be systematically excluded from the jury pool. Nothing in the language of our State's counterpart to the Sixth Amendment right to a jury trial suggests that the framers of our State Constitution intended a more expansive interpretation. Similarly, there is nothing in the language or history of our State equal protection provision (art I, § 11) which suggests that the scope of the rights guaranteed by this provision should extend beyond the rights guaranteed by the equal protection clause of our Federal Constitution in this instance. It must be recalled that in Swain, the Supreme Court specifically rejected the Federal equal protection challenge, and our court has held that our State constitutional equal protection clause is no more broad in coverage than its Federal prototype ( Matter of Esler v Walters, 56 N.Y.2d 306). Furthermore, defendant's reliance on our State Constitution's due process provision is also unavailing.
In Matter of Esler we said: "In certain areas, of course, the State Constitution affords the individual greater rights than those provided by its Federal counterpart. We have noted, however, that the wording of the State constitutional equal protection clause (NY Const, art I, § 11) `is no more broad in coverage than its Federal prototype' and that the history of this provision shows that it was adopted to make it clear that this State, like the Federal Government, is affirmatively committed to equal protection, and was not prompted by any perceived inadequacy in the Supreme Court's delineation of the right ( Dorsey v Stuyvesant Town Corp., 299 N.Y. 512, 530-531)" ( 56 N.Y.2d, at pp 313-314 [n omitted]).
We have no occasion to pass on the merits of defendant's contention that improper negative identification testimony was admitted in this case. The testimony of which defendant complained (anticipated by both counsel in their openings) was as to the failure of the complainant to earlier identify defendant among those individuals he viewed in the neighborhood several weeks after the robbery took place.
Chief Judge COOKE and Judges JASEN and WACHTLER concur with Judge GABRIELLI; Chief Judge COOKE concurs in a concurring memorandum; Judge MEYER dissents and votes to reverse in a separate opinion in which Judge JONES concurs; Judge FUCHSBERG dissents and votes to reverse in another dissenting opinion.
I concur in the majority's holding that the prosecutor's use of peremptory challenges did not violate defendant's constitutional rights.
I also agree that this court need not decide the negative identification issue, but for a reason different than that implicitly adopted by the majority, which erroneously concludes that defendant's counsel opened the door to this testimony. Assuming, arguendo, that admission of the negative identification testimony was improper, in light of the entire record, including defense counsel's own reference to this subject in his opening statement, the error, if any, cannot be said to have prejudiced defendant.
In my view the use by a prosecutor of peremptory challenges systematically and without apparent reason to exclude all blacks on the panel from the petit jury before which is to be tried a black defendant charged with robbing a white victim violates the Sixth Amendment guarantee of a fair trial by an impartial jury. I, therefore, dissent.
Defendant, a black man, was indicted for first degree robbery. The complainant was a white man. During selection of the trial jury, after the prosecution had exercised 11 of its 15 peremptory challenges, defendant moved for a mistrial on the ground that the prosecutor had by peremptory challenge excluded all seven blacks and the one Hispanic who had been drawn as prospective trial jurors up to the time the motion was made. In the course of argument of the motion, defendant's attorney asked for a hearing at which the prosecutor would testify concerning the grounds for the challenges. The Trial Judge denied the motion and thereafter filed an opinion ( 104 Misc.2d 782) in which he reasoned that the "potential affinity" between a defendant and a juror who shares the defendant's background justified the peremptory challenges exercised by the People and that under Swain v Alabama ( 380 U.S. 202, 222): "In light of the presumption of regularity and the historic immunity from inquiry concerning the use of peremptory challenges, it is inappropriate to inquire into a party's motives solely on the basis of the manner in which peremptory challenges have been exercised in a single case" (104 Misc.2d, at p 784). The Appellate Division affirmed, without opinion. Swain, upon which the majority and the courts below so heavily rely, was decided solely on equal protection grounds. Acknowledging that jurors "`should be selected as individuals, on the basis of individual qualifications, and not as members of a race'" (380 US, at p 204), and that nothing in the Constitution of the United States requires the grant of peremptory challenges ( id., at p 219), the Supreme Court held that to subject the prosecutor's judgment in any given case to scrutiny for reasonableness and sincerity would establish a rule wholly at odds with the peremptory challenge system. Excusal of blacks on the basis of their potential affinity for a black defendant, it reasoned, did not violate the equal protection clause of the Fourteenth Amendment; such a violation could be established only if purposeful discrimination by State officials was shown ( id., at pp 219-224) as when "the prosecutor in a county, in case after case, whatever the circumstances, whatever the crime and whoever the defendant or victim may be, is responsible for the removal of Negroes who have been selected as qualified jurors by the jury commissioners and who have survived challenges for cause, with the result that no Negroes ever serve on petit juries" ( id., at p 223).
The inconsistency between that affirmance and the earlier opinion of the same department in People v Thompson ( 79 A.D.2d 87, app withdrawn 55 N.Y.2d 879) which after extensive and thoughtful analysis held such a use of peremptory challenges unconstitutional undoubtedly resulted from its holding that Thompson would not be applied retroactively (79 A.D.2d, at p 112, n 22). Thompson was decided on February 2, 1981. The McCray jury was selected on April 24, 1980.
Although only four Justices concurred in the part of the opinion from which the quoted words are taken, the three dissenting Justices who argued that the proof presented was sufficient to demonstrate a constitutional violation implicitly agreed with it.
Not addressed by Swain, which was decided prior to the holding in Duncan v Louisiana ( 391 U.S. 145) that the Fourteenth Amendment made applicable to the State the Sixth Amendment's guarantee of trial by an impartial jury, was the effect of the latter provision. The Supreme Court's subsequent holding in Taylor v Louisiana ( 419 U.S. 522) that the Sixth Amendment requires a jury pool made up of a representative cross section of the community has raised the question whether the court when confronted by the situation of the present case, involving not the pool but the petit jury itself, will adhere fully to its Swain ruling. At least one court ( People v Payne, 106 Ill. App.3d 1034, 1042) has concluded, as do I, that Duncan and Taylor compel a result different from Swain.
In Taylor v Louisiana ( supra), the Supreme Court construed the Sixth Amendment to require a pool of jurors representing a fair cross section of the community. The purpose of the fair cross section requirement is to assure that the jury reflects the broad range of human experience. But a petit jury from which all members of defendant's race have been purposely excluded is not a petit jury "`representative of a cross section of the community who have the duty and the opportunity to deliberate'" ( Taylor v Louisiana, 419 U.S. 522, 528, supra, quoting Apodaca v Oregon, 406 U.S. 404, 410-411 [plurality opn]; see Williams v Florida, 399 U.S. 78, 100). Indeed, as the Supreme Court has noted in another context, such a procedure "destroys the appearance of justice and thereby casts doubt on the integrity of the judicial process" ( Rose v Mitchell, 443 U.S. 545, 555-556). Nor is such a jury impartial, even though each of its members considered individually may be, for as stated by Justice THURGOOD MARSHALL, concurring in Peters v Kif ( 407 U.S. 493, 503) and quoted with approval in the majority opinion in Taylor v Louisiana ( 419 U.S. 522, 532, n 12, supra): "When any large and identifiable segment of the community is excluded from jury service, the effect is to remove from the jury room qualities of human nature and varieties of human experience, the range of which is unknown and perhaps unknowable. It is not necessary to assume that the excluded group will consistently vote as a class in order to conclude, as we do, that its exclusion deprives the jury of a perspective on human events that may have unsuspected importance in any case that may be presented."
It is no answer to suggest, as does the majority, that so to hold is inconsistent with the legislative definition of a peremptory challenge as "an objection to a prospective juror for which no reason need be assigned" (CPL 270.25, subd 1). Nor, contrary to the majority's suggestion (at p 546), does so holding require a prosecutor to prove bias or even assign a reason for each peremptory challenge. What such a rule would do, rather, and all that it would do, would be to call upon a prosecutor who had so exercised his peremptories as to exclude from the petit jury all members of defendant's race and thus evidenced his or her intention to have defendant tried before a racially imbalanced jury to offer reasonable explanations for the various challenges grounded in a reason other than race. To the extent that CPL 270.25 (subd 1) appears to be inconsistent with such a rule it must, on familiar principles, be construed so as to avoid inconsistency with the Sixth Amendment (cf. People v Thompson, 79 A.D.2d 87, 109, n 20, supra), for the fair cross section-impartiality requirement is meaningless if in any case involving a defendant of a given race the prosecutor can intentionally and systematically exclude all members of that race without cause.
This does not mean that a prosecutor may never exercise a peremptory challenge against a black in a case involving a black defendant. Peremptory challenges are intended to permit elimination from the jury of persons whose bias is suspect but cannot be proven, to assure that those who ultimately constitute the petit jury "will decide on the basis of the evidence placed before them, and not otherwise" ( Swain v Alabama, 380 US, at pp 211-212, 219, supra). But that does not provide carte blanche to exclude all blacks solely because they are black. Even in a case in which the testimony is expected to reveal that a key witness has referred to defendant as "the nigger", a prosecutor may not exclude all blacks through the exercise of peremptory challenges. Rather his obligation to maintain the fair cross section diversity of the petit jury requires voir dire inquiry by him of black prospective jurors concerning whether they will be able to weigh objectively the testimony of a witness who used such a racial epithet ( People v Johnson, 22 Cal.3d 296).
To hold otherwise is to sanction under the guise of fairness or tradition, or both, deliberate discrimination by a State official. There can be only two explanations for a prosecutor's challenge of all the members of the defendant's race. First, the prosecutor might have legitimate reasons to doubt the impartiality of each individual. If that be the case, however, the State will not be harmed if he is asked to articulate those reasons and justify the challenges. The only other possible explanation for the prosecutor's elimination of all blacks from the jury is his mistrust of the ability of blacks, as a group, to be impartial. But the corollary of this view, in a case like this where the complainant and defendant are of different races, is that whites cannot be trusted either. The result is that the defendant, unable to remove whites from the jury, is deprived of an impartial jury. As the Supreme Judicial Court of Massachusetts put it in Commonwealth v Soares ( 377 Mass. 461, at pp 487-488): "Given an unencumbered right to exercise peremptory challenges, one might expect each party to attempt to eliminate members of those groups which are predisposed toward the opposition. However, when the defendant is a minority member, his attempt is doomed to failure. The party identified with the majority can altogether eliminate the minority from the jury, while the defendant is powerless to exclude majority members since their number exceeds that of the peremptory challenges available. The result is a jury in which the subtle group biases of the majority are permitted to operate, while those of the minority have been silenced."
The contrary suggestions of the majority (at pp 548-549), more fully answered in the text of this dissent, below would be more convincing if supported by empirical evidence from California, Massachusetts or New Mexico, each of which, in reliance on respective State constitutional provisions, has held ( People v Wheeler, 22 Cal.3d 258; Commonwealth v Soares, 377 Mass. 461, cert den 444 U.S. 881; State v Crespin, 94 N.M. 486) that the representative cross section requirement forbids the "potential affinity" peremptories which the majority now sanctions.
Of course, if one assumes that neither blacks nor whites are necessarily partial, there can be no justification for peremptorily challenging either group as a class.
The practical difficulties of according a defendant such a right are exaggerated by the majority. First, as to the voir dire itself, the prosecutor who must look at jurors as individuals rather than members of a group would be in no different position than his adversary is now. Faced with more veniremen of the victim's group than he can excuse, the defense attorney must find an individual basis for each challenge. I do not doubt that prosecutors are equal to the same task and can perform it without excessively delaying the trial. Second, expeditious procedures can easily be developed for hearing a motion for a mistrial on this ground. The Second Department's proposed procedure, for example, depends to a large extent upon the trial court's observation of the voir dire. In most cases, the argument of counsel, the prosecutor's explanation and the court's observation will be sufficient to decide the motion. "Only in the unusual case, if at all, would it appear that a hearing would be necessary" ( People v Thompson, 79 A.D.2d, at p 109).
It is not necessary to spell out in meticulous detail the exact procedure to be followed in hearing such motions for one to recognize that the potential for delay of the judicial process can never be so harmful to the institution as is the violation of the Sixth Amendment's impartial jury requirement sanctioned by allowing the exercise of peremptory challenges solely on the racial basis of "potential affinity". A verdict which is acceptable to whites but not to blacks is not the verdict of an impartial jury. The defendant's motion for a mistrial should not have been denied without a statement by the court of his observations or an explanation from the prosecutor of his reasons for challenging the eight minority jurors.
There should be a reversal and a new trial.
Although in some circumstances remittal for a hearing may be proper (see People v Payton, 51 N.Y.2d 169, 176-178; cf. People v Havelka, 45 N.Y.2d 636), such a remittal would not be proper in the present case in view of the time elapsed and the fact that, apparently, the voir dire was not recorded ( People v Thompson, 79 A.D.2d, at p 111, n 22, supra).
Standing alone, the record here, featuring the People's use of 8 of its 11 exercised peremptory challenges to excuse all of the 7 blacks and the lone Hispanic drawn from the venire, on its face presented a classical picture of intentional and systematic exclusion on account of race, creed, color or national origin. As such, without more and absent any countervailing explanation, I agree with my fellow dissenters that it ran counter to the defendant's constitutional right to be tried by a jury drawn from a randomly selected, representative cross section of the community. True, attempts to pursue the cross section ideal are commonly, and most efficiently, managed in the formation of the jury pool from which the venire is drawn rather than at the picking of the petit jury. This does not mean, however, that its purposeful frustration at the latter stage is to be countenanced. Since, at the very least then, the trial court should have granted defendant's motion for a hearing, I agree there indeed should be a reversal and a new trial.
(US Const, 6th, 14th Amdts [see Taylor v Louisiana, 419 U.S. 522].)
I also firmly believe that guidelines to aid in the determination of the existence of purposeful and systematic discrimination, the finding of which will so heavily depend upon a trial court's personal observations, would best be developed by "the step-by-step and case-by-case evolution characteristic of the common law" ( People v Andre W., 44 N.Y.2d 179, 185).
So I cannot accept my fellow dissenters' assumption that whatever procedure might be adopted to investigate discrimination in this context should include an obligation that a prosecutor or other counsel so charged with exercising peremptories explain, whether by argument or testimony, the grounds for the challenges. This may be better understood against some comment on the nature and essentiality of the function of the peremptory challenge.
Having evolved over the centuries as a unique and effective key to securing an impartial jury while assuring litigants and the public of its fairness, the peremptory challenge is not to be underestimated. In large part this is because the challenge for cause (CPL 270.20), fashioned essentially to eradicate the smaller incidence of patent prejudice rather than the far greater one of latent prejudice, cannot hope, by itself, to provide full protection from partiality (cf. People v Provenzano, 50 N.Y.2d 420). Surely, absent impartiality, the petit jury would lack a jurisprudential ingredient on a par with cross-sectionalism.
For impartiality cannot be taken for granted. It would be naive in the extreme to entertain the notion, shared perhaps by philosophers without experience, that jurors, unlike other persons, do not bring with them the biases produced by their respective environments, education, group affiliations, occupational experiences and the like. Moreover, many prospective jurors report for service with predispositions or misconceptions, often subconscious or not well thought out, concerning certain types of cases or litigants. Since self-appraisal may be too subjective for appreciation of one's underlying prejudice, self-esteem too blinding for acknowledgement of an inability to overcome it and self-confession too embarrassing to be made in public, as often as not voir dire, even when not too circumscribed, will not disclose bias sufficiently to support a challenge for cause (Saltzburg Powers, Peremptory Challenges and the Clash Between Impartiality and Group Representation, 41 Md. L Rev 337, 355; Suggs Sales, Juror Self-Disclosure in the Voir Dire: A Social Science Analysis, 56 Ind LJ 245; Babcock, Voir Dire: Preserving "Its Wonderful Power", 27 Stan L Rev 545, 554).
The peremptory challenge fills this gap. While, in the vernacular, we often say that a lawyer is to "select a jury", this function, realistically regarded, more accurately may be seen as one to "unselect a jury". After all, operating under our adversary system, with rare exceptions, the aim of each advocate is to eliminate those jurors least likely, in the circumstances of the case at hand, to favor the position of his or her client. In short, subject to errors of judgment, targeted are the extremes of partiality, in principle a most valuable purpose.
Historically and today, to give the peremptory challenge the full sway it needs to do its job, "no reason need be assigned" for its use (CPL 270.25). Taking the statute at its word, not only need no reason be articulated, but none need exist and, when it does, any reason, save when it bespeaks systematic and intentional exclusion of the unmistakable kind we encounter in this case, should do. This includes anything which motivates human conduct, ranging all the way from intuition, courtroom nuances, the set of a face and a willingness to gamble on a replacement to a calculated judgment of what effect a particular juror's background and personality is likely to have in appraising the facts and personalities on which a verdict will turn. For instance, should one quarrel with the right of counsel to strike a juror whose youthful idealism may produce a touch of hardness, or the corresponding right of the adversary to eliminate an older person whose mellowness he senses will have brought a forgiving approach? Or with the right, while representing a female client, to excuse a taleswoman because of a belief that women can be each others' severest critics? Or, too, depending on the case committed to counsel's trust, in preferring the perceived openhandedness of a salesman or freewheeling executive over the precision of a toolmaker or the caution of a loan officer, as the case may be? Or, even because one is rich and the other poor? Or, sensitive to the realities of life in a pluralistic society, to legitimately consider any and all of a venireperson's varied socioeconomic striations and the attitudinal effect these may have wrought? Or, knowing too little about the individual jurors, because the lawyer makes one of these sensitive decisions on a stereotypical basis? Centuries of experience say the answer is no.
All this is mind, in order to correct occasional lapses into purposeful discrimination as such, it would be most unfortunate to adopt a procedural norm which would require every trial advocate to not only search his or her soul and subconscious but, figuratively, to look over his or her shoulder before challenging a prospective juror who shares a "common characteristic" with the opposing party or with another juror whom the attorney has already excused. Though the rejection by counsel of an invitation to explain a seemingly discriminatory challenge, of course, may make far less likely a finding that it in fact was not discriminatorily motivated, the letter and spirit of the legislative provision that "no reason need be assigned" should be respected.
This said, I would reverse and order a new trial.