Duren v. Missouri: A Post-Peremptory Path to Representative Juries

Publication Title

Arizona Attorney

Keywords

Duren v. Missouri, Batson challenge, jury selection

Document Type

Article

Abstract

Practitioners who have made a successful Batson challenge—a prima facie case that an adversary used a cause-less “peremptory” strike to block an otherwise eligible juror from service because of their race, ethnicity or sex—will tell you it was anything but easy. Nearly four decades since Batson v. Kentucky, the Supreme Court’s test for establishing juror discrimination has proven notoriously ineffective.

Abiding racial disparities in jury selection prompted the Supreme Court of Arizona to improve on how we conduct voir dire. On January 1, 2022, Arizona became the first state to completely eliminate the use of peremptory strikes. Our judiciary’s laudable efforts to mitigate racial discrimination in jury composition by abolishing cause-less strikes could not, however, completely rectify the disparate exclusion of people of color from jury service. If we can no longer use even the imperfect Batson framework, where can litigants find relief from petit juries that continue to suffer from demonstrable systemic underrepresentation?

Now that parties must establish actual cause for every juror they seek to preclude, the solution may be simply to safeguard fair venire composition. Rather than arguing that some invidious motive underlies an individual strike, why not use Batson’s often overlooked predecessor, Duren v. Missouri, to ensure the entire pool fairly reflects our local diversity? While we’re at it, let’s institutionalize Duren for future actions by routinely publishing our jury selection methods and statistics, as many courts did voluntarily in 2020.

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