Preemptory Challenges on Panel Members

military-defense-lawyers5564843After challenges for cause, the parties proceed to peremptory challenges. Each side has one peremptory challenge. R.C.M. 912(g)(1). If a party fails to use a peremptory challenge when allowed to do so, that party waives his/her right to use a peremptory challenge. The military judge may grant relief from the waiver for good cause, but relief will not be granted after the presentation of evidence has begun. R.C.M. 912(g)(2). If a party objects to the other party’s peremptory challenge, that objection should be stated immediately. See United States v. Gray, 51 M.J. 1 (C.A.A.F. 1999).

Batson v. Kentucky, 476 U.S. 79 (1986) expressly prohibits the use of unlawful discrimination in exercising peremptory challenges. In Batson, a party alleged that his opponent was exercising peremptory challenges for the purpose of obtaining a racially-biased jury. The Court held that the plaintiff had to make a prima facie showing of such intent before the party exercising the challenges was required to explain the reasons for the strikes. The three-part Batson test requires: (1) a prima facie case of discrimination, (2) the provision of a race neutral reason, and (3) proof of purposeful discrimination. Supreme Court cases subsequent to Batson prohibited peremptory challenges based on gender as well as race.

While the Supreme Court has never expressly applied Batson and its progeny to the military, military case law has applied Batson and its subsequent cases to the military through the Fifth Amendment.

When counsel is addressing the other side’s Batson challenge in the military, he/she cannot proffer a reason that is “unreasonable, implausible, or that otherwise makes no sense.” See United States v. Tulloch, 47 M.J. 283, 287 (C.A.A.F. 1997). If counsel uses a peremptory challenge on a panel member based on two reasons, one of which is valid and one of which is based on race or gender, the entire reason must fail. United States v. Greene, 36 M.J. 274 (C.M.A. 1993).

United States v. Greene,

Batson v. Kentucky,