The right to a fair trial by an impartial jury includes the right to a trial free of improper discriminatory implications.108 A juror may not be excluded from jury service merely on the basis of race, color, religion, sex, national origin or economic status.109 Although a jury must be drawn from a pool that is truly representative of a cross section of the community,110 a litigant has no absolute right to a jury which includes members of his or her racial, ethnic or gender group.111 The absence of any cognizable or identifiable group from the jury or the jury pool is not unlawful unless it is the result of a systematic exclusion of members of that group.112
To establish unlawful discrimination in jury selection, the challenging party must demonstrate that (1) the group alleged to be excluded is a distinctive group in the community, (2) the representation of that group in the venire is not fair and reasonable in relation to the number of such persons in the community, and (3) this underrepresentation is due to systematic exclusion of the group in the jury selection process.113 If at some point during voir dire a party reasonably believes that the opposing party is using its peremptory challenges in a racially discriminatory fashion, that party must raise the issue in a specific and timely manner.
The complaining party must make a prima facie showing that, considering all the circumstances in a given case, there is a substantial likelihood that the prospective jurors are being challenged solely on the basis of race. The complaining party must complete a record of the circumstances as is practical and must establish that the potential excluded jurors are members of an identifiable group. Once a prima facie showing has been made, the trial judge must determine whether there is a substantial likelihood that the party exercising peremptory challenges is doing so on the basis of race. A ruling that there is not such a substantial likelihood will end any further inquiry.
A ruling that there is such a substantial likelihood, however, will shift the burden to the party exercising the challenges to prove that the exercise of challenges was not racially motivated. To sustain this burden, the reasons for the challenges need not rise to the level of challenges for cause. Instead, the party making the challenges must satisfy the court that its peremptory challenges were made on grounds related to specific, individual juror bias or on grounds reasonably related to the particular case or trial or its parties or witnesses, and not solely on the ground of race. If the court then determines that the party exercising the challenges has not met his or her burden, the jury is deemed unrepresentative, and the court must dismiss those jurors already selected. The court must also quash any remaining venire, since the complaining party is entitled to a random drawing from the entire venire, not one stripped of members of a cognizable group by the improper use of peremptory challenges. Thus, a new venire must be drawn.114
In determining whether the prosecutor acted with discriminatory intent, the court may consider, among other things: (1) the percentage of African American veniremembers who are the subject of the prosecutor’s peremptory strikes; (2) side-by-side comparisons of some black venire panelists who were struck and white panelists who were allowed to serve in order to determine whether a prosecutor’s proffered reason for striking a black panelist applies just as well to an otherwise-similar nonblack who is permitted to serve; (3) the prosecutor’s use of procedural mechanisms to move African American veniremembers to the back of the panel where they are less likely to be selected; (4) evidence of a contrast between the prosecutor’s voir dire questions posed respectively to black and nonblack panel members, and (5) evidence of a systematic policy or practice within the prosecutor’s office of excluding minorities from jury service.114.1
108. Jones v. State, 938 A.2d 626, 631 (Del. 2007); Weddington v. State, 545 A.2d 607, 614-15 (Del. 1988).
109. 10 Del. C. § 4503. See also Riley v. State, 496 A.2d 997 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Johnson v. State, 312 A.2d 630, 631 (Del. 1973) (use of peremptory challenges to exclude prospective jurors solely on the basis of race violates a criminal defendant’s right to trial by a fair and impartial jury under Article I, § 7 of the Constitution of the State of Delaware).
110. Haas v. United Technologies Corp., 450 A.2d 1173, 1183 (Del. 1982), appeal dismissed, 59 U.S. 1192 (1983).
111. Riley v. State, 496 A.2d 997, 1009 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); Haas v. United Technologies Corp., 450 A.2d 1173, 1184 (Del. 1982), appeal dismissed, 459 U.S. 1192 (1983).
112. Haas v. United Technologies Corp., 450 A.2d 1173, 1183 (Del. 1982), appeal dismissed, 459 U.S. 1192 (1983).
113. Robertson v. State, 630 A.2d 1084, 1089 (Del. 1993); Riley v. State, 496 A.2d 997, 1008 (Del. 1985), cert. denied, 478 U.S. 1022 (1986). See also Outten v. State, 650 A.2d 1291, 1299 (Del. 1994), cert. denied, 545 U.S. 1145 (1995).
114. Jones v. State, 940 A.2d 1, 10 (Del. 2007); Jones v. State, 938 A.2d 626, 632-633 (Del. 2007); Barrow v. State, 749 A.2d 1230, 1238 (Del.2000); Dixon v. State, 673 A.2d 1220 (Del. 1996); Robertson v. State, 630 A.2d 1084, 1089-91 (Del. 1993); Feddiman v. State, 558 A.2d 278, 284-85 (Del. 1989); Riley v. State, 496 A.2d 997, 1013 (Del. 1985), cert. denied, 478 U.S. 1022 (1986).
114.1. Jones v. State, 938 A.2d 626, 634 (Del. 2007).
© 2010 David L. Finger