Section 5-12.Objection to the Use of a Peremptory Challenge

Section 5-12 exists, as its policy statement says, to eliminate the unfair exclusion of potential jurors based on race or ethnicity. Any party may object to a peremptory challenge by citing the rule, and the court may raise the issue on its own; further discussion happens outside the prospective juror’s presence. Once an objection is made, the party who exercised the challenge must state the reason for it. The court then evaluates that reason from the perspective of an “objective observer” — someone aware that purposeful discrimination and implicit, institutional, or unconscious bias have historically led to unfair juror exclusion, and who has considered the circumstances listed in subsection (f), such as the questions asked of the juror, whether other jurors gave similar answers without being challenged, and whether the party has used peremptory challenges disproportionately against a race or ethnicity. If the challenge appears, from that objective-observer standpoint, to raise the appearance that race or ethnicity was a factor, the court disallows it and seats the juror; if not, the challenge is permitted and the juror is excused. The court doesn’t need to find purposeful discrimination to disallow a challenge, and must explain its ruling on the record. A party whose challenge is disallowed may still try to challenge that same juror peremptorily for a different reason or conduct further voir dire.

The rule also flags specific categories of reasons. Subsection (g) lists eight reasons — among them prior contact with law enforcement, distrust of law enforcement, living in a high-crime neighborhood, having a child outside marriage, receiving state benefits, and not being a native English speaker — that are presumptively invalid because of their history of association with discriminatory jury strikes; a party can overcome that presumption by showing the reason is unrelated to race or ethnicity and bears on the juror’s fairness. Subsection (h) covers reasons based on a juror’s conduct, such as inattentiveness, lack of eye contact, or problematic demeanor: a party relying on such a reason must give the court and other parties reasonable notice so the conduct can be verified, and if the court or the objecting party didn’t observe the conduct, a presumption of invalidity applies, subject to being overcome the same way as subsection (g) reasons. Finally, the chief justice appoints someone to monitor issues relating to the rule.