So holds a New York appellate court in In the Matter of Robar v. Farrell (decided today), which involved the prosecution of a defendant for recklessly injuring someone while hunting. The trial court held that such peremptory challenges were barred: “Under the [trial] court’s novel rationale, licensed hunters are a class entitled to constitutional civil rights protection because they are protected by and exercising the right to bear arms as conferred by the US Constitution, Second Amendment.” Not so, the appellate court concluded; the Batson doctrine only bars peremptory challenges based on race, sex, and perhaps religion and some similar attributes, and does not bar peremptory challenges based on the exercise of a constitutional right more generally.
And I think this is right: Exercising a peremptory challenge against a juror because he has exercised a constitutional right doesn’t generally violate the Constitution, which is why lawyers can (for instance) exercise their peremptory strikes to exclude a prospective juror based on his political beliefs, based on his group membership, and the like. The point of a peremptory challenge is so that parties may exclude prospective jurors who they think might be oriented against them (but not so clearly biased that the parties can challenge the prospective jurors for cause). That orientation might often be evidenced by the party’s past constitutionally protected conduct. For a variety of systemic reasons the Court has limited peremptory challenges based on race, and extended that to sex. Some lower courts have extended it to religion as well. But the logic of Batson doesn’t require extending the limitations on peremptory challenges to all exercises of constitutional rights, and the tradition (and likely continuing value) of peremptory challenges counsels against such an extension.
Still, the matter struck me as interesting enough to be worth noting. And note also that in this case, the defendant actually benefited from the appellate court’s decision. The trial court had declared a mistrial because of what it saw as a Batson violation, over the defendant’s objection; the appellate court held that the mistrial declaration wasn’t necessary, and that therefore the prohibition on double jeopardy precluded a retrial. (“Under the seminal United States Supreme Court decision in United States v Perez (22 US 579 ), where a court declares a mistrial without the consent or over the objections of a defendant, the constitutional prohibition against double jeopardy will preclude a retrial for the same offenses unless ‘there is a manifest necessity for [the mistrial], or the ends of public justice would otherwise be defeated.”)