Relates to prohibiting certain discriminatory peremptory challenges to prospective jurors

◆ The sponsor's argument

Why Andrew Gounardes says this is needed

In 1986, the Supreme Court of the United States found in Batson v. Kentucky that racial discrimination in the selection of jurors both deprives the accused of important constitutional rights during a trial and is devastating to the community at large as it "undermines public confidence in the fairness of our system of justice." Batson was specifically addressing the discriminatory use of peremptory challenges in criminal cases. Unlike challenges for cause, which allow for the disqualification of a potential juror for an explicitly stated reason, peremptory challenges allow for striking a potential juror with- out cause or reason. As was affirmed in Baston, these challenges are often intentionally or unintentionally discriminatory in nature, as the ability to strike jurors without cause opens the door for that decision to be based on conscious or unconscious bias. Theoretical and empirical evidence across disciplines such as psychology, sociology, criminology, and law agree, concluding that peremptory challenges, by their very nature, are fertile ground for the influence of bias on jury selection. The decision in Batson V. Kentucky led to the creation of the three-step Batson challenge: first, the objecting party must establish a prima facie case of racial or gender discrimination in the peremptory chal- lenge, by establishing an inference of discrimination. Next, the burden shifts to the party making the peremptory challenge to provide a "neutral" explanation of their challenge. Thirdly, the court must decide if such stated reasons are actually the truth or a pretext for purpose- ful discrimination. If the peremptory challenge fails this test, it is struck down. Beyond this requirement of neutrality, however there are no criteria for evaluating explanations for peremptory challenges. In Purkett v. Elem, the court went so far as to state that the explanations do not need to be "persuasive or even plausible." Thus, despite this supposed remedy, examinations of jury selection proceedings have shown that when either the prosecution and defense are challenged on Batson grounds, a vast majority of neutral justifications are accepted by judges as legitimate. It is unsurprising, then, that research has shown that the current safe- guards against such bias and discrimination are untenable: even when attorneys are aware of the impact of bias, they are unlikely to admit it, and even when judges scrutinize peremptory justifications for evidence of discrimination, they are unlikely to find it. This bill, recommended by an August 2022 report of the New York State Justice Task Force, would follow the lead of other states such as Wash- ington and California which have all recently put into place certain safeguards to ensure that the protections of Batson are better enforced during jury selection. It would create a "reasonable person" standard, long recognized in other parts of statute and widely understood by both courts and practitioners, to uphold peremptory challenges. Peremptory challenges which, in the view of a reasonable person, were made as the result of certain protected characteristics of the juror will be struck down. The bill also expands the list of protected classes, which under the federal Batson standard applies only to race and gender, to also include color, national origin, ancestry, gender identity or expression, religion, religious practice, age, disability, and sexual orientation. This more expansive list would mirror that contained in New York Unified Court System's directives on voir dire (the preliminary examination of a potential juror by a counsel or judge), which emphasize that a fair juror does not base a decision on the list of protected classes enumer- ated above. This bill addresses New York's peremptories problem, in which criminal convictions are not infrequently overturned based on evidence that a prosecutor used racial criteria to select a jury that they believed would more likely return a conviction (see Pe

This is the sponsor's own case for the bill, quoted from their memorandum. It is not Agora's description of what the bill does.