Outing Batson: How the Case of Gay Jurors Reveals the Shortcomings of Modern Voir Dire

Abstract

Although scholarly attention has been devoted to the argument that Batson v. Kentucky should apply to gay and lesbian jurors, little or no attention has been paid to how these challenges would work in practice. This article is, foremost, a thought experiment about how peremptory challenges would function if Batson were applied to sexual orientation. I examine several scenarios to understand the practical implications of this change and conclude that it would be ineffective at best and socially appalling at worst. My analysis reveals a fundamental problem with the current peremptory system: it fails to take into account the complex nature of social identity and the psychological realities of human interaction and bias. The goal of equal protection, I suggest, would be better served if changes were made to the existing peremptory challenge system, such as reducing the number of challenges allowed and requiring a Batson-style explanation for every peremptory challenge exercised.

Keywords: jurors, juries, peremptory challenges, voir dire, gay, LGBT, queer, criminal law, criminal juries, gay jurors, homosexuality