UC Law SF Journal on Gender and Justice


Since the inception of the jury system in the United States, attorneys have insisted that they be given the freedom to make "shoot-from-the hip," "seat-of-the-pants," and "gut-level" judgments about a particular juror's capacity to sit as a fair trier of fact. Unfortunately, this broad discretion has led to widespread abuses. Until relatively recently, courts have allowed potential jurors to be excluded on the basis of their race, religion, political affiliation, national origin, and gender. With the exception of gender-based preemptions, all these abuses have been judicially corrected without compromising the defendant's right to a fair trial. If the state's right to exercise gender-based peremptory challenges was ever justified (and I doubt that it ever was), that time is surely past. The use of this type of challenge has been so grossly abused and has strayed so far from notions of common justice and equality that is time to constrain it. "Seat-of-the-pants" and similar justifications for gender-based strikes are no more than euphemisms for jury manipulation and gender discrimination. Courts should no longer tolerate the use of peremptory challenges to perpetuate chauvinist myths about the "basic nature of men and women." It is time to return the peremptory challenge to its intended role as a tool for ferreting out specific juror bias and eliminate its perpetuation of wholesale gender bias.