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Civil Procedure Fall 2014

Cheat Sheet on Challenging Individual Jurors


Adapted from SmithKline Beecham Corp. v. Abbott Labs., 740 F.3d 471 (9th Cir. 2014).




SmithKline Beecham sued Abbott Laboratories for violating the implied covenant of good faith and fair dealing (among other things) relating to the sale of an HIV drug. During jury selection, Abbott used its first peremptory strike against the only self-identified gay member of the venire (after only asking him five questions, none of which related to his personal experience with the drug or his impartiality). SmithKline challenged the strike under Batson v. Kentucky and the district judge denied the challenge.




"The potential for relying on impermissible stereotypes in the process of selecting jurors was “particularly acute” in this case. Viewing the totality of the circumstances, we have no difficulty in concluding that GSK has raised an inference of discrimination and established a prima facie case." . . . 


[In response to Abbott's Counsel's statement that he had no idea whether the juror was gay:] "Counsel’s statement that he did not know that Juror B was gay is neither consistent with the record nor an explanation for his strike. First, Juror B and the judge referred to Juror B’s male partner several times during the course of voir dire and repeatedly used masculine pronouns when referring to him. Given the information regarding Juror B’s sexual orientation that was adduced during the course of voir dire, counsel’s statement was far from credible." . . . 


"Abbott’s counsel asked Juror B only five questions and failed to question him meaningfully about his impartiality or potential biases. Combined with Abbott’s counsel’s statement, in the face of clear evidence in the record to the contrary, that he did not know that Juror B was gay, the voir dire reveals that Abbott’s strike was based not on a concern for Juror B’s actual bias, but on a discriminatory assumption that Juror B could not impartially evaluate the case because of his sexual orientation."


Analysis of Precedent


"In Batson, the Supreme Court held that the privilege of peremptory strikes in selecting a jury is subject to the guarantees of the Equal Protection Clause. Batson, of course, considered peremptory strikes based on race. At stake, the Court explained, were not only the rights of the criminal defendant, but also of the individual who is excluded from participating in jury service on the basis of his race. Allowing peremptory strikes based on race would “touch the entire community” because it would “undermine public confidence in the fairness of our system of justice.” Thus, the Court held, the exclusion of prospective jurors because of their race would require reversal upon a finding of intentional discrimination. Eight years later, in J.E.B., the Court extended Batson to peremptory strikes made on the basis of gender. While expanding Batson’s ambit, J.E.B. explained the scope of its expansion. The Court stated that “[p]arties may . . . exercise their peremptory challenges to remove from the venire any group or class of individuals normally subject to ‘rational basis’ review.” Thus, if sexual orientation is subject to rational basis review, Abbott’s strike does not require reversal." . . .


[Turning to Windsor, the Supreme Court’s 2013 case striking down the Defense of Marriage Act, to answer that question:] "Windsor, of course, did not expressly announce the level of scrutiny it applied to the equal protection claim at issue in that case, but an express declaration is not necessary." . . .


"[But,] Windsor requires that when state action discriminates on the basis of sexual orientation, we must examine its actual purposes and carefully consider the resulting inequality to ensure that our most fundamental institutions neither send nor reinforce messages of stigma or second-class status. In short, Windsor requires heightened scrutiny [not rational basis review]."




"Strikes exercised on the basis of sexual orientation continue this deplorable tradition of treating gays and lesbians as undeserving of participation in our nation’s most cherished rites and rituals." . . .