By Dr. Ken Broda-Bahm
As counsel scans the panel of potential jurors, one might stand out based on the gut level thought: a “that guy just makes me nervous” kind of reaction. Basing your strike decisions on a “bad feeling” that lies outside of articulable factors of experience or attitude certainly isn’t unknown. But it is also a dated style of thinking that is increasingly running up against a growing intolerance of strikes based on impermissible categories such as race, and against renewed efforts to address or to avoid the flaws of Batson-based system for challenging strikes.
There have been a number of recent efforts to address the problem of racial bias in the exercise of peremptory challenges, with one example being Arizona’s move to simply do away with strikes all together. Other jurisdictions have tried to move toward a more concrete standard. Washington state, for example, has adopted a new test, General Rule 37, focused on whether an objective observer could view race or ethnicity as being a factor in a party’s use of a peremptory challenge. A new article in the UCLA Law Review (Castellano, 2025) addresses the effectiveness of this “objective observer test,” noting some problems in both theory and application. Given that Washington’s observer is framed as being not just objective, but also aware of the prevalence of implicit bias, Castellano argues that, applied literally, it will nearly always see a strike exercised against a protected minority as potentially having race or ethnicity as a factor: “If the objective standard requires the objective observer to be aware of the existence of implicit bias, such an observer must also know that merely seeing a juror and any visual indicators of their race could trigger implicit bias.” Given the documented near ubiquity of implicit bias, that could create a “striker never wins” situation where every challenge against the use of a strike against a protected group would be upheld and every associated strike would be denied, and minority group members would be essentially immunized against strikes.
To be clear, the author argues this is not happening at this point in Washington state, but that is only because judges don’t seem to be fully applying the standard. In what strikes me, at least, as A Modest Proposal type of solution, the author recommends blind jury selection, with attorneys exercising strikes after reviewing written questionnaires only, and never seeing the jurors face-to-face until the jury is seated. While that solution leverages one of the best tools for effective selection on the merits — a well-designed questionnaire — that fix would be pretty problematic. The very jurors who are told to distrust out of court statements and to evaluate witnesses only after seeing them testify in person would avoid that same standard being applied to themselves in voir dire.
Based on the author’s analysis of recent cases, the Washington standard seems to be applied in ways that, like the earlier Batson framework, simply require the challenged party to articulate a good and non-discriminatory reason for the strike. That underscores something litigators should do anyway: Be clear and conscious about your reasons, and ready to explain them if necessary.
Be Explicit About the Factors that Matter
In our practice, we create a formal risk profile of the factors that matter for the trial team. This profile is a detailed listing of the attitudes, experiences, and other background factors that increase or decrease the risk posed by any particular juror. Over the years, and across a great many mock trials, we have found that the experiences and especially attitudes will nearly always matter much more than any protected demographic categories (which are not included in the profile). Because we are striking, and not “picking,” our jurors, our focus is mostly on the negative factors that would predispose a juror against use, but we also consider the balance of positive factors that contribute to the full picture on any given juror.
Consider Quantifying Those Factors
When time and data permits — for example, when you have detailed questionnaire results and/or social media research well in advance of trial — you should consider developing a quantitative way of representing the value of that juror from the perspective of your party’s interests. That is accomplished by developing a scoring system with positive or negative points for each answer on a questionnaire, and potentially in oral voir dire as well. Some software can be set up to do this (for example, Juror Search), making the calculations for you and printing out an individual scored report for each juror.
Take Careful Notes, Have a Ready Rationale
When I am assisting with jury selection in court, I will always have not only a priority order for my recommended strikes, but for each I will also have a quick reason why. That ranking will be based on a continued holistic evaluation, informed by a score if one is available, but if not driven by my overall sense of how the risk profile applies in the case of this individual. In my notes, I will jot down the factor that matters most in determining the strike decision for that juror. It might look something like this:
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- #7 Smith: Past experience with company
- #23 Jennings: Views damages as a good way to punish
- #13 Foley: Extreme burden on company for safety
Of course, that brief note will never be the full picture — that will be in the comprehensive notes on that individual juror — but the one-liner will help to keep a focus when discussing, or defending, the merits of striking an individual juror. Ultimately, the reason for the evaluation and the notes is not just – or even primarily – for the purpose of weathering a potential challenge. They are for making sure I am clear in my own mind, and clear to other members of the team, on the reason for any strike decision. In my experience, I believe that experienced trial lawyers want to remove the most biased individuals from their panels, and neither want nor need to discriminate in the process of doing so.
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Other Posts on Peremptory Strikes:
- Fight (Constitutionally) for Your Peremptory Strikes
- Expand Voir Dire
- Voir Dire: Before You Ask”Can You Be Fair?” Know What You Want the Answer to Be
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Castellano, N. (2025). The Objective Batson Standard: Can a New Step Three Address the Problem of Implicit Bias?. UCLA Law Review, 72(2).
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