Ted A. Donner


Contemporary racial justice movements and increased interest in implicit bias are shining a spotlight on the role of peremptory challenges in jury selection and how best to combat prejudice in this essential step of the criminal justice system. States such as Arizona and Washington have undertaken reforms designed to shift a dynamic that, under Batson, has prioritized obvious and intentional discrimination and ignored the more subtle but perhaps equally insidious effects of implicit bias. Focusing first on the history of peremptory challenges in Illinois, this article next looks to how the current state of the law can be reconciled with the law on challenges for cause and what areas of inquiry may be pursued in voir dire. The author concludes that Illinois should consider taking steps along a path specifically avoided by the United States Supreme Court in Purkett v. Elem—one that Justice John Paul Stevens embraced in his dissent in that case. Such an approach would require less of a focus on the intent of the attorneys and more on jurors’ ability to perform their duties under law.

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