Jury selection is the most important part of a criminal trial . Jury selection is when the attorneys question jurors on their qualifications and if they can be fair and unbiased jurors. Each attorney has eight peremptory challenges in a felony case under Tennessee law. A peremptory challenge allows a lawyer to strike a potential juror for whatever reason. Some challenges are based on looks , how they answer a question , and even what bumper stickers they have on their car.
Prior to 1986 , the laws on jury selection allowed the unfettered use of peremptory challenges . In Batson v Kentucky , the U.S. .Supreme Court required the lawyers to state on the record a non-discriminatory reason why a juror was excused on the basis of race.
The question has now been raised whether a juror can be excluded on the basis of sexual orientation. This week the U.S. Court of Appeals for the Ninth Circuit became the first circuit to bar peremptory challenges on the basis of sexual orientation. Here is an excerpt from the ruling;
“Gays and lesbians have been systematically excluded from the most important institutions of self-governance,” Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel. “Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals.”
In the trial , a juror was excused based upon his alleged sexual orientation. It was not clear whether he expressed himself as gay but stated about his partner "He was retired."
Compare this case with a ruling a few years ago from the U.S. Court of appeals in the Eighth Circuit which came to the opposite conclusion. It appears this case might be headed to the Supreme Court for a clear ruling. One key point for the trial lawyer is to be aware of the shifting law in jury selection.