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*********************************************** 
STATE v. HOLMES—CONCURRENCE

MULLINS, J., with whom D’AURIA, J., joins, concurring. I agree with and join the majority’s thoughtful and

well reasoned opinion. In particular, I wholeheartedly

endorse the majority’s decision in part II B of its opinion

to create a Jury Selection Task Force to identify and

implement corrective measures for combatting the discriminatory use of peremptory challenges beyond the

framework set forth in Batson v. Kentucky, 476 U.S.

79, 96–98, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986). I write

separately because, in my view, it is time not only to

reconsider the framework of the Batson challenge in

order to eliminate discrimination in jury selection but

also to consider substantially restricting the use of

peremptory challenges altogether.

Peremptory challenges by their very nature invite

corruption of the judicial process by allowing—almost

countenancing—discrimination. The credibility and

integrity of our system of justice should not tolerate

prospective jurors being prevented from serving on

juries on the basis of discrimination due to their race,

ethnicity, gender or religious affiliation. The straightest

line to eliminating such discrimination would be to eliminate the peremptory challenge. In our state, in light of

article first, § 19, of the Connecticut constitution, as

amended by article IV of the amendments, outright elimination of the peremptory challenge would raise constitutional concerns. However, nothing in our constitution

prevents the next best thing, which would be to substantially reduce the number of peremptory challenges that

the parties have available for their use.

I

As the majority opinion cogently sets forth, the Batson framework has proven to be wholly inadequate to

address the discriminatory use of peremptory challenges. There are, however, more fundamental problems with peremptory challenges that should lead us

to question whether any reforms short of reducing the

parties’ access to peremptory challenges will meaningfully reduce the discriminatory effects that they have

on the selection of jurors.

The problem of discrimination in peremptory challenges stems from the following systemic issues: (1)

the historical use of peremptory challenges as a means

of excluding African-Americans from jury service; (2)

peremptory challenges lead inescapably to parties striking prospective jurors on the basis of speculation and

stereotypes; (3) peremptory challenges are often based

on unconscious biases and justifications that are ostensibly race neutral but that have a disparate impact on

minority jurors; and (4) peremptory challenges lead to

violations of the constitutional rights not just of the
parties but also of the prospective jurors.

A

First, peremptory challenges have a history of being

used as a tool of racial discrimination. Until Batson

was decided in 1986, the United States Supreme Court

expressly countenanced the use of peremptory challenges to strike jurors on account of their race. See

Swain v. Alabama, 380 U.S. 202, 220–21, 85 S. Ct. 824,

13 L. Ed. 2d 759 (1965), overruled by Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986).

Emphasizing the inherent conflict between peremptory challenges and equal protection principles, the

United States Supreme Court concluded: ‘‘[W]e cannot

hold that the striking of Negroes in a particular case is

a denial of equal protection of the laws. . . . To subject

the prosecutor’s challenge in any particular case to

the demands and traditional standards of the [e]qual

[p]rotection [c]lause would entail a radical change in

the nature and operation of the challenge. The challenge, pro tanto, would no longer be peremptory, each

and every challenge being open to examination . . . .

And a great many uses of the challenge would be

banned.’’1 Swain v. Alabama, supra, 380 U.S. 221–22.

Although Swain was eventually overruled by Batson,

this long held understanding, that it was acceptable to

strike prospective jurors on the basis of their race, has

left an indelible mark on the use of peremptory challenges.

I acknowledge that the problem extends beyond race

and into discrimination on the basis of ethnicity, gender,

and religious affiliation, which also are entitled to protection under the Batson framework. See J. E. B. v.

Alabama, 511 U.S. 127, 129, 114 S. Ct. 1419, 128 L. Ed.

2d 89 (1994); State v. Hodge, 248 Conn. 207, 244–45,

726 A.2d 531 (1999). The Batson framework, however,

is equally ineffective in addressing discrimination on

these bases as well.

B

Second, peremptory challenges lead inescapably to

parties striking prospective jurors purely on the basis

of speculation and stereotypes. Unlike challenges for

cause, where the prospective juror’s partiality is articulable, ‘‘the peremptory permits rejection for a real or

imagined partiality that is less easily designated or

demonstrable.’’ Swain v. Alabama, supra, 380 U.S. 220.

‘‘With limited information and time, and a lack of any

reliable way to determine the subtle biases of each

prospective juror, attorneys tend to rely heavily on stereotypes and generalizations in deciding how to exercise peremptory challenges.’’ State v. Saintcalle, 178

Wn. 2d 34, 81, 309 P.3d 326 (2013) (Gonzalez, J., concurring).

It is almost inevitable that this expedient resort to

stereotypes will invoke improper racial and other dis-
criminatory considerations. I submit that decisions to

exclude a prospective juror on the basis of stereotypes,

whether based on racial or other discriminatory considerations that have nothing to do with the juror’s ability

to fairly assess the evidence and follow legal instructions given by the judge, have no place in our system

of selecting jurors.

C

Third, as discussed in the majority opinion, there

are two especially elusive problems with peremptory

challenges: (1) unconscious or implicit bias; and (2)

lines of voir dire questioning that are race neutral but

that have a disparate impact on minority jurors.

Although these forms of discrimination are not purposeful, their consequences are no less pernicious. Both

result in minorities being disproportionately excluded

from jury service. This brand of exclusion has the effect

of reducing diversity in our juries and perpetuating a

mistrust of our justice system, particularly among those

in the communities disparately impacted by these challenges. See State v. Holmes, 176 Conn. App. 156, 197–99,

169 A.3d 264 (2017) (Lavine, J., concurring); State v.

Saintcalle, supra, 178 Wn. 2d 100 (Gonzalez, J., concurring).

Regarding unconscious or implicit bias, Justice Marshall explained in Batson that ‘‘[a] prosecutor’s own

conscious or unconscious racism may lead him easily

to the conclusion that a prospective black juror is ‘sullen,’ or ‘distant,’ a characterization that would not have

come to his mind if a white juror had acted identically.

A judge’s own conscious or unconscious racism may

lead him to accept such an explanation as well supported.’’ Batson v. Kentucky, supra, 476 U.S. 106 (Marshall, J., concurring).

A number of judges and commentators have argued

that the only way to meaningfully combat the effects

of implicit bias on peremptory challenges is to limit or

eliminate them. See Rice v. Collins, 546 U.S. 333, 343,

126 S. Ct. 969, 163 L. Ed. 2d 824 (2006) (Breyer, J.,

concurring) (In suggesting that peremptory challenges

should be abolished, Justice Breyer noted that, ‘‘sometimes, no one, not even the lawyer herself, can be certain

whether a decision to exercise a peremptory challenge

rests upon an impermissible racial, religious, genderbased, or ethnic stereotype. . . . How can trial judges

second-guess an instinctive judgment the underlying

basis for which may be a form of stereotyping invisible

even to the prosecutor?’’ [Citations omitted.]); A. Page,

‘‘Batson’s Blind-Spot: Unconscious Stereotyping and

the Peremptory Challenge,’’ 85 B.U.L. Rev. 155, 246

(2005) (‘‘The psychological research . . . demonstrates the prevalence of unconscious, automatic stereotype use and the difficulty in eradicating it, even

among those who are not of a mind to discriminate.

This finding provides one more powerful reason to elim-
inate the peremptory challenge.’’).

The problem of lines of voir dire questioning that have

a disparate impact on minorities is equally complex.

Our case law, as the majority opinion notes, has held

that ostensibly race neutral reasons for striking a

juror—such as, in this case, the juror’s negative views

about law enforcement—pass muster under Batson

even though they disproportionately affect minority

jurors. See State v. King, 249 Conn. 645, 666–67, 735

A.2d 267 (1999); State v. Hodge, supra, 248 Conn.

230–31; State v. Smith, 222 Conn. 1, 13–14, 608 A.2d

63, cert. denied, 506 U.S. 942, 113 S. Ct. 383, 121 L. Ed.

2d 293 (1992); see also Hernandez v. New York, 500

U.S. 352, 359–60, 111 S. Ct. 1859, 114 L. Ed. 2d 395 (1991).

Throughout history and continuing through the present day, relations between the police and many minorities and minority communities have been strained and

highly contentious. Recently, police killings of AfricanAmerican men and women have been highly publicized.

Unfortunately, while the heightened publicity around

these cases is new, these stories are not new. We cannot

turn a blind eye to that reality. To permit an honest

venireperson who expresses that experience to be prevented from service on a jury is unacceptable.2

I therefore echo the sentiments of the Appellate Court majority

that ‘‘permitting the use of peremptory challenges with

respect to potential jurors who express negative views

toward the police or the justice system may well result

in a disproportionate exclusion of minorities from our

juries, a deeply troubling result.’’ State v. Holmes, supra,

176 Conn. App. 181 n.5. Indeed, as Judge Lavine thoughtfully set forth in his concurring opinion in the Appellate

Court, the effects of these types of challenges are

immensely damaging to our juries and to the perception

of our justice system. See id., 197–99 (Lavine, J., concurring).

Adequate solutions to this problem are hard to come

by, due in no small part to the innumerable permutations of disparate impact questions. In light of the complexity of these problems, I believe that outright elimination of, or at least a substantial reduction in access

to, peremptory challenges is the most effective way to

lessen the discrimination that arises from peremptory

challenges.

D

Finally, it is important to remember that every time

a discriminatory, peremptory strike goes unchallenged

or such a strike passes muster in our courts, it violates

the equal protection rights not only of the affected parties but also of the individual jurors who were improperly stricken. See Powers v. Ohio, 499 U.S. 400, 409,

111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991) (The equal

protection clause prohibits prosecutors from ‘‘exclud[-

ing] otherwise qualified and unbiased persons from the
petit jury solely by reason of their race, a practice that

forecloses a significant opportunity to participate in

civic life. An individual juror does not have a right to

sit on any particular petit jury, but he or she does possess the right not to be excluded from one on account

of race.’’). ‘‘[W]ith the exception of voting, for most

citizens the honor and privilege of jury duty is their most

significant opportunity to participate in the democratic

process.’’ Id., 407. A procedure that permits qualified

jurors to be excluded from jury service because of their

race, ethnicity, gender or religious affiliation is irreconcilable with promoting the legitimacy and credibility of

our justice system.

In my view, the importance of these rights should

lead us to question whether they should be left to selfinterested parties who, as previously explained, often

are acting on the basis of stereotypical judgments. Citizens should not be deprived of the opportunity to serve

on a jury in the absence of an acceptable and identifiable

reason. Our system takes that into account with the

challenge for cause. The peremptory challenge allows

too much discrimination to seep into the decision to

strike a prospective juror.

II

Having identified the systemic problems associated

with peremptory challenges, I now consider the constitutional and policy considerations involved in

addressing these problems. I acknowledge at the outset

that, although there is no right to peremptory challenges

under the federal constitution; see Georgia v. McCollum, 505 U.S. 42, 57, 112 S. Ct. 2348, 120 L. Ed. 2d 33

(1992); total elimination of peremptory challenges may

not be possible in this state. This is because article first,

§ 19, of the Connecticut constitution was amended in

1972 to include the following provision: ‘‘In all civil and

criminal actions tried by a jury, the parties shall have

the right to challenge jurors peremptorily, the number

of such challenges to be established by law. . . .’’ Conn.

Const., amend. IV.

I make two observations here. First, our constitution

does not prescribe any minimum number of peremptory

challenges that parties are entitled to; see Conn. Const.,

amend. IV; leaving that to be determined by the legislature. See General Statutes § 51-241 (providing each

party with three peremptory challenges in civil cases,

subject to limitations); General Statutes § 54-82g (providing state and defendant each with between three and

twenty-five peremptory challenges in criminal cases,

depending on severity of crime charged). Thus, there

does not appear to be any constitutional impediment

to reducing the number of peremptory challenges available to parties.

Second, and more fundamental, although the language of the constitution affords the state a right to a
peremptory challenge, the historical basis for that right

is unclear. Historically, peremptory challenges have

been recognized, not as a right belonging to the government, but as a tool for criminal defendants to protect

themselves from the government. Indeed, this court

described peremptory challenges several years before

they were constitutionalized as ‘‘one of the most

important rights secured to the accused . . . .’’

(Emphasis added; internal quotation marks omitted.)

DeCarlo v. Frame, 134 Conn. 530, 533, 58 A.2d 846

(1948). This court has recognized peremptory challenges as a means of securing a criminal defendant’s

right to trial by a fair and impartial jury. See State v.

Hodge, supra, 248 Conn. 217. The United States

Supreme Court has explained that the right to a trial

by a fair and impartial jury ‘‘is granted to criminal defendants in order to prevent oppression by the [g]overnment.’’ Duncan v. Louisiana, 391 U.S. 145, 155, 88 S.

Ct. 1444, 20 L. Ed. 2d 491 (1968).

Notwithstanding the fact that article first, § 19, of the

Connecticut constitution, as amended by article four

of the amendments, provides that ‘‘the parties’’ in a

criminal action have the right to peremptory challenges,

granting that right to the state seems incongruous with

the other rights associated with criminal trials. Virtually

all of the other trial related rights in a criminal case have

as their basis the protection of the individual against

the state.3 Nevertheless, I understand that the language

of the constitutional provision provides the state with

peremptory challenges. However, given that the legal

basis for the state’s constitutional right to peremptory

challenges in a criminal case is certainly open to question, I suggest that it is appropriate to consider whether

the state should be entitled to an equal number of

peremptory challenges as the accused in a criminal

case. Instead, it may be appropriate, in a criminal case,

to limit the number of peremptory challenges available

to the state in greater measure than the number of

peremptory challenges available to the defendant.

Apart from the constitutional question of whether

limiting the number of peremptory challenges available

to the state to a greater degree than the number available to the defendant would be permissible under our

state constitution, there remains the question of

whether providing criminal defendants with greater

access to peremptory challenges than the state is appropriate as a matter of policy. Justice Marshall, for

instance, rejected such disparate treatment in his concurring opinion in Batson, reasoning that ‘‘[o]ur criminal justice system ‘requires not only freedom from any

bias against the accused, but also from any prejudice

against his prosecution. Between him and the state the

scales are to be evenly held.’ ’’ Batson v. Kentucky,

supra, 476 U.S. 107 (quoting Hayes v. Missouri, 120

U.S. 68, 70, 7 S. Ct. 350, 30 L. Ed. 578 [1887]).
Others, however, have argued that, because only

criminal defendants possess the constitutional right to

a fair trial and impartial jury, their use of peremptory

challenges should be preserved while prosecutors’ use

should be eliminated or reduced. See Georgia v. McCollum, supra, 505 U.S. 68 (O’Connor, J., dissenting)

(arguing that Batson prohibition on race based peremptory challenges should not apply to criminal defendants

because ‘‘[t]he concept that the government alone must

honor constitutional dictates . . . is a fundamental

tenet of our legal order . . . [and] [t]his is particularly

so in the context of criminal trials, where we have held

the prosecution to uniquely high standards of conduct’’

[emphasis added]).

These difficult constitutional and policy questions are

not presently before this court and I make no attempt

to answer them here. Instead, I write separately to

emphasize that the problem of racial and other forms

of discrimination in the use of peremptory challenges

is extremely complex and the solution to the problem

must take into account that complexity. To be sure,

solutions may need to extend beyond the framework

of the Batson challenge to encompass a substantial

reduction in the availability of peremptory challenges.

1

In Swain, the United States Supreme Court recognized that the use of

peremptory challenges to exclude African-American jurors violated the equal

protection clause only if there was evidence that the state did so in virtually

every single case and that no African-Americans were ever selected to serve

on juries. Swain v. Alabama, supra, 380 U.S. 223–24. This requirement

later was recognized as ‘‘impos[ing] a crippling burden of proof that left

prosecutors’ use of peremptories largely immune from constitutional scrutiny.’’ (Internal quotation marks omitted.) Miller-El v. Dretke, 545 U.S. 231,

239, 125 S. Ct. 2317, 162 L. Ed. 2d 196 (2005).

2

Judge Lavine, in his concurring opinion in the Appellate Court in this case,

provides other examples of experiences that a venireperson of a particular

suspect class may honestly reveal that may subject him or her to being

stricken from the jury. See State v. Holmes, supra, 176 Conn. App. 197

(Lavine, J., concurring). I agree with his examples and find it unacceptable

for an individual to be excluded from service on a jury merely because he

or she has experiences common to his or her race, ethnicity or gender that

a party considers to be objectionable for service on a jury.

3 The right to a jury trial has been deemed fundamental because it safeguards the accused’s rights against abuse of state power. See Duncan v.

Louisiana, supra, 391 U.S. 155–56. Likewise, ‘‘[t]he right to counsel under the

sixth amendment of the federal constitution protects a criminal defendant

at critical stages of the proceedings from adversarial government agents

. . . .’’ State v. Piorkowski, 243 Conn. 205, 215, 700 A.2d 1146 (1997); see

also Gideon v. Wainwright, 372 U.S. 335, 344, 83 S. Ct. 792, 9 L. Ed. 2d 799

(1963) (right to counsel is necessary to protect criminal defendants from

government, which spends ‘‘vast sums of money to establish machinery to

try defendants accused of crime’’). The same is true of the sixth amendment

right to a speedy trial; see State v. Baker, 164 Conn. 295, 296, 320 A.2d 801

(1973) (‘‘[o]n its face, [the right to a speedy trial] is activated only when a

criminal prosecution has begun and extends only to those persons who

have been accused in the course of that prosecution’’ [internal quotation

marks omitted]); and the fifth amendment right against self-incrimination.

See In re Samantha C., 268 Conn. 614, 634, 847 A.2d 883 (2004) (‘‘fifth

amendment privilege against self-incrimination . . . protects the individual

against being involuntarily called as a witness against himself’’ [internal

quotation marks omitted]). Similarly, the fourteenth amendment, which forbids the purposeful discrimination in the exercise of peremptory challenges,

was designed to protect citizens from state action. See State v. Holliman,

214 Conn. 38, 43, 570 A.2d 680 (1990) (fourteenth amendment ‘‘prohibits

the states from denying federal constitutional rights’’ and ‘‘applies to acts
of the states, not to acts of private persons or entities’’ [internal quotation

marks omitted]).

Moreover, article first, §§ 8 and 20, of the Connecticut constitution, which

contain our state counterparts to these federal rights, by their express terms

extend only to individual citizens or criminal defendants. See Conn. Const.,

art. I, § 8 (listing rights secured to ‘‘the accused’’ and providing that ‘‘[n]o

person shall be compelled to give evidence against himself’’); Conn. Const.,

art. I, § 20 (‘‘[n]o person shall be denied the equal protection of the law’’).

The foregoing demonstrates that both the language and the origins of these

trial related rights establish that their purpose is to protect the accused

from the awesome power of the state. Conversely, there is no historical basis

for the proposition that the state possesses constitutional trial related rights.