# Batten Down the Batson: Can we kick jurors for being too religious? **URL:** \ **Category:** Great Debates\ **Created:** [November 13, 2003, 1:00pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014 "2003-11-13T13:00:14Z")\ **Posts on this page:** 19\ **Page:** 4
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2003, 1:40pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/61 "2003-11-17T13:40:51Z")
Yes, that might cause problems on appeal. šŸ˜ƒ ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2003, 1:42pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/62 "2003-11-17T13:42:46Z")
Shodan: In general, the judge can order a prospective juror to answer voir dire questions truthfully. Off the top of my head, Iā€™m unaware of any specific limits to that, other, obviously, than the jurorā€™s Fifth Amendment rights and any similar privileges he may be able to assert. - Rick ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 17, 2003, 1:55pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/63 "2003-11-17T13:55:31Z")
Do they ask stuff like ā€œwho did you vote for?ā€ Regards, Shodan ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 17, 2003, 3:18pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/64 "2003-11-17T15:18:54Z")
**Bricker** , there are some troublesome things in your hypothetical example. It looks to me like the prosecutorā€™s explanation, ā€œā€¦he was dressed very shabbily, and itā€™s been my experience that people that donā€™t dress up for jury duty favor the defense.ā€ Now, the whole case against peremptory challanges of the type under discussion has a statistical basis. _I.e_, the claim is it is unlikely that all blacks would be excluded unless there was racially motivation. So it would seem to me that the prosecutor would have to offer more than the anecdotal ā€œitā€™s been my experience that ā€¦ā€ which borders on small sample statistics which are notoriously inaccurate. In fact, statistics say nothing at all about the specific performance of any individual unit, if I can use that term, in the population. It seems to me that the law is getting onto some awfully shakey technical ground here. ---
**Author:** ![David\_Simmons](https://avatars.discourse-cdn.com/v4/letter/d/9de053/32.png) [@David\_Simmons](https://boards.straightdope.com/u/David_Simmons)\ **Post date:** [November 17, 2003, 3:21pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/65 "2003-11-17T15:21:16Z")
Grrr. That should be ā€œracial motivationā€ and small sample statistics are ā€œnotriously impreciseā€ not necessarily ā€œinaccurate.ā€ Other than those two minor imperfections I did pretty well. ---
**Author:** ![jon\_pi](https://avatars.discourse-cdn.com/v4/letter/j/48db29/32.png) [@jon\_pi](https://boards.straightdope.com/u/jon_pi)\ **Post date:** [November 17, 2003, 3:30pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/66 "2003-11-17T15:30:01Z")
Most religions specifically state a moral code to which follower is to adhere. Knowing this moral code, and the pre-disposition to the specific response of a juror is pretty much like stacking the deck. No race or gender can be expected to react in a certain way to the evidence or backround of a case without the use of stereotyping, racism, or sexism. Religion is also a choice. (my opinion is that religion is a choice, belief may or may not be) The choice a person makes as to what religion they follow describes that personā€™s moral compass. In this light, it seems perfectly reasonable to pick and choose jurors by religious preference, especially if theyā€™re exceptionally devout or fundamental. It affects their judgement, maybe not the soundness of it, but definately the direction. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2003, 3:34pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/67 "2003-11-17T15:34:09Z")
**Shodan** : I doubt a judge would permit that sort of question on _voir dire_, but I admit I have no particular authority to point to off the top of my head to say, definitively, that itā€™s forbidden as a matter of law. **David Simmons** : there is no rule that peremptory challenges make sense, _as long as they are not made for forbidden - i.e., racially-based - reasons_. The prosecutor is perfectly free to say, ā€œI just had a bad feeling about Juror X,ā€ and thatā€™s acceptable under Batson. Of course, if the judge feels that the proffered reason is a pretext to hide a racial motive, as my last example tried to illustrate, thatā€™s another story. If the prosecutorā€™s ā€œbad feelingsā€ consistently extend only to African-Americans, the judge may well reach such a conclusion. But the reason need not make objective sense, as long as it isnā€™t _Batson_-forbidden. - Rick ---
**Author:** ![SnoopyFan](https://avatars.discourse-cdn.com/v4/letter/s/d07c76/32.png) [@SnoopyFan](https://boards.straightdope.com/u/SnoopyFan)\ **Post date:** [November 17, 2003, 6:08pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/68 "2003-11-17T18:08:33Z")
**It affects their judgement, maybe not the soundness of it, but definately the direction.** I agree, but for a different reason. Take me, for instance, a fairly conservative Christian. Do I have hot button issues? Absolutely. Would I take my issues into court with me, though, and be more likely to let some people off the hook and throw the book at others? No way. Wanna know why? "To show partiality in judging is not good: Whoever says to the guilty, ā€œYou are innocentā€- peoples will curse him and nations denounce him. But it will go well with those who convict the guilty, and rich blessing will come upon them. " ā€“ Proverbs 24:24-25 ā€œAcquitting the guilty and condemning the innocent- the LORD detests them both.ā€ ā€“ Proverbs 17:15 There is **no way** I would go into a courtroom and let someone off the hook or find them guilty based on whether or not I agreed with what they did, or what my personal opinion of the defendant is, or whatever nutty reasons jurors use to determine whether or not justice should be served. I would have to judge according to our laws and the evidence Iā€™m shown, which is what jurors are supposed to do. Iā€™m sure that the Bible is not the only holy book that advocates calling a spade a spade and being fair-minded and not showing partiality when it comes to stuff like this. In other words, maybe religious jurors could be a good thing, because if they take their faith seriously, they are going to want to be as fair as possible. They may very well be likely to listen to all the evidence and try extremely hard not to make up their mind until theyā€™ve heard everything. ---
**Author:** ![Helen\_s\_Eidolon](https://avatars.discourse-cdn.com/v4/letter/h/8edcca/32.png) [@Helen\_s\_Eidolon](https://boards.straightdope.com/u/Helen_s_Eidolon)\ **Post date:** [November 17, 2003, 6:09pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/69 "2003-11-17T18:09:25Z")
Hereā€™s what I figure (with no knowledge of American law, mind you): A deply religious person puts Godā€™s (or whatever deity they worship) laws before the stateā€™s laws. As such, they are unfit to participate in the condemnation of someone for breaking of the stateā€™s laws, as they have different motivations. ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 17, 2003, 6:22pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/70 "2003-11-17T18:22:27Z")
> [@](#): > > A deply religious person puts Godā€™s (or whatever deity they worship) laws before the stateā€™s laws. As such, they are unfit to participate in the condemnation of someone for breaking of the stateā€™s laws, as they have different motivations. It seems to me that lots of people, religious or not, have things that they put ā€œbefore the stateā€™s lawsā€. I can see some non-religious mother, for instance, putting the welfare of her children before the stateā€™s laws, but I wouldnā€™t exclude mothers from juries. And to muddy the waters further, my religious beliefs oblige me to obey the State insofar as the laws of the State are productive of good order and justice. And, by and large, I think the laws of the State coincide with the laws of God. Laws against murder and theft, for instance, appear in the Ten Commandments, as well as in the state penal code. It sounds very much like you are arguing against jury nullification, where (IIRC) the jury returns a verdict which is illegitimate in the eyes of the State, because they believe it to be the ā€œright thing to doā€. Sometimes the jury may be right, sometimes not. But I doubt if the rightness or wrongness of such a verdict will correlate with the religious beliefs of the jurors. Regards, Shodan ---
**Author:** ![erislover](https://avatars.discourse-cdn.com/v4/letter/e/71e660/32.png) [@erislover](https://boards.straightdope.com/u/erislover)\ **Post date:** [November 17, 2003, 6:25pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/71 "2003-11-17T18:25:24Z")
Well, having reread the OP in light of a little clearer understanding of the issues, I think **erl** ā€™s verdict is that religion should not be under Batson. Being religious is not like being a member of a protected class that might be traditionally excluded, or looked down upon. I donā€™t think there is any historical precident for such a thing, even. If a lawyer wants to ditch fundies, then so be it. The same, of course, can be said of atheists: if someone wants to _try_ to stack a jury with a particular religious inclination, then I think thatā€™s within bounds. Iā€™m looking at Batson as a ā€œprotected classā€ sort of decision, not just a ā€œnon-discriminatoryā€ decision; obviously it is discriminatory, it is selecting people for dismissal from the jury. But Batson would have us say that though most reasons for dismissal fly, there are some that shouldnā€™t. So while we might not be able to discriminate, in an everyday employment/service-offering sense, against religion, being a member of a religion does not therefore bestow any protected status. So I think I agree with the Dejesus decision. Furthermore, dismissal of relgious members for cause seems very reasonable as well, depending on the jurorā€™s responses and the case in question. Most times I donā€™t question peopleā€™s objectivity, but mixing deep-seated spiritual beliefs with alleged acts that go against them seems to be begging for a release of objectivity. What problems does this bring, though? Well, for one thing, if people start believing that being religious can easily get one out of jury duty, we might have people lie about it one way or the other to get on or off a jury. This is obviously not something we want to encourage. Perhaps religion should be under Batson, but dismissal for cause by showing that certain scriptures, or beliefs, etc, would directly conflict with the judicial process and a fair hearing would still be open. Any thoughts? Iā€™m just sort of fumbling around hereā€¦ ---
**Author:** ![Shodan](https://avatars.discourse-cdn.com/v4/letter/s/9f8e36/32.png) [@Shodan](https://boards.straightdope.com/u/Shodan)\ **Post date:** [November 17, 2003, 6:25pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/72 "2003-11-17T18:25:51Z")
Oh, and **Bricker** - Thanks for your response. Can they, or do they, ask about religious practice or belief? Or does the attorney just spot a cross or a yarmulke (or a pentagram) and say to himself, ā€œWhoops - not that one. If I canā€™t find cause, I will have to use up a pre-emptory challenge.ā€ Regards, Shodan ---
**Author:** ![blowero](https://avatars.discourse-cdn.com/v4/letter/b/41988e/32.png) [@blowero](https://boards.straightdope.com/u/blowero)\ **Post date:** [November 17, 2003, 6:47pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/73 "2003-11-17T18:47:16Z")
Thanks for the great explanation, Bricker, and sorry to keep highjacking this thread, but Iā€™m wondering if you know how often the Batson precedent actually gets applied. It seems to me that it wouldnā€™t be too hard for a reasonably sharp attorney to make up some kind of believable excuse for dismissing a juror other than race (especially if he has a mental list of pre-fabricated excuses that he knows from experience will work). Since thereā€™s no _formal_ legal argument to be made as a defense against a Batson challenge, it seems like it would simply come down to the rather abitrary opinion of whether the judge ā€œbelievesā€ the attorney. I hadnā€™t ever heard of this before; it seems odd to me. Also, how many peremptory challeges do you get? I thought you only got 1, but Iā€™m obviously remembering wrong, since one instance canā€™t establish a pattern. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 17, 2003, 8:19pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/74 "2003-11-17T20:19:50Z")
> [@](#): > > \*Originally posted by Shodan \* > Can they, or do they, ask about religious practice or belief? Or does the attorney just spot a cross or a yarmulke (or a pentagram) and say to himself, ā€œWhoops - not that one. If I canā€™t find cause, I will have to use up a pre-emptory challenge.ā€ They can and do ask about religious practice and belief. > [@](#): > > \*Originally posted by blowero \* > Thanks for the great explanation, Bricker, and sorry to keep highjacking this thread, but Iā€™m wondering if you know how often the Batson precedent actually gets applied. It seems to me that it wouldnā€™t be too hard for a reasonably sharp attorney to make up some kind of believable excuse for dismissing a juror other than race (especially if he has a mental list of pre-fabricated excuses that he knows from experience will work). Since thereā€™s no _formal_ legal argument to be made as a defense against a Batson challenge, it seems like it would simply come down to the rather abitrary opinion of whether the judge ā€œbelievesā€ the attorney. I hadnā€™t ever heard of this before; it seems odd to me. There are plenty of pre-trial and during-the-trial matters that can require the judge to exercise some fact-finding and weigh the credibility of a witness - or a lawyer. Batson gets mentioned somewhat frequently, if for no other reason than itā€™s one more issue to preserve for appeal. (If you fail to object during the jury selection, you waive you right to complain about a _Batson_ violation later or on appeal). If the prosecutor strikes jurors in such a way that might raise a _Batson_ eyebrow, Iā€™d be surprised if an on-his-toes defense lawyer didnā€™t get the issue on the record. That said ā€“ youā€™re absolutely right. Itā€™s a relatively toothless decision for precisely the reason you suggest: itā€™s very easy for a prosecutor to come up with pretextual, non-racially-based reasons and very easy for the judge to buy off on them. In fact, it was my experience that most judges would ask the prosecutor to provide a race-neutral reason even if they found the defense had not made a prima facie case; that way, if an appellate court disagreed, he would already have conducted the requisite inquiry and found the prosecutorā€™s explanation credible, closing the door on any potential appeal. Where _Batson_ really shone through was on alternative theories. For example, the original decision dealt with a member of a protected class having other members of that protected class struck. But subsequent case law invalidated strikes against protected classes even when the accused was not a member of that class. It wasnā€™t uncommon to hear defense lawyers offering up cockamamie _Batson_-esque theories to derail strikes. > [@](#): > > Also, how many peremptory challeges do you get? I thought you only got 1, but Iā€™m obviously remembering wrong, since one instance canā€™t establish a pattern. Depends on the jurisdiction and the type of trial. I donā€™t know of anywhere thatā€™s just one, though. - Rick ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [November 18, 2003, 12:33am UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/75 "2003-11-18T00:33:07Z")
> [@](#): > > \*Originally posted by Bricker \* > \*\*Batson gets mentioned somewhat frequently, if for no other reason than itā€™s one more issue to preserve for appeal. (If you fail to object during the jury selection, you waive you right to complain about a _Batson_ violation later or on appeal). If the prosecutor strikes jurors in such a way that might raise a _Batson_ eyebrow, Iā€™d be surprised if an on-his-toes defense lawyer didnā€™t get the issue on the record. > > That said ā€“ youā€™re absolutely right. Itā€™s a relatively toothless decision for precisely the reason you suggest: itā€™s very easy for a prosecutor to come up with pretextual, non-racially-based reasons and very easy for the judge to buy off on them. In fact, it was my experience that most judges would ask the prosecutor to provide a race-neutral reason even if they found the defense had not made a prima facie case; that way, if an appellate court disagreed, he would already have conducted the requisite inquiry and found the prosecutorā€™s explanation credible, closing the door on any potential appeal.\*\* Let me add that, as distasteful as I find **Brickerā€™s** singleminded attribution of racial bias in jury selection to prosecutors, he is, in my experience, quite correct that, in reality, the defense counsel does not need to meet even a prima facie case before the trial judge will make inquiry of a prosecutor. The entire issue of jury selection is nebulous by its nature. Basically, the attorneys on both sides are given roughly an hour, and maybe 30-40 questions each, to learn about people who could serve on the jury. From the minor scintilla of information presented, the attorneys are required to try and find 12 fair and impartial jurors to hear the case. And, to no oneā€™s surprise, jurors do not generally volunteer information, and, on occasion, hide the truth about their own personal biases, whether for the prosecution or the defense. All of which make the exercise of preemptory challenges itself, and the reasons behind it, very difficult to pin down. That being said, a potential jurorā€™s race should never be a consideration. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 18, 2003, 4:19am UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/76 "2003-11-18T04:19:15Z")
> [@](#): > > \*Originally posted by Hamlet \* > Let me add that, as distasteful as I find **Brickerā€™s** singleminded attribution of racial bias in jury selection to prosecutors, he is, in my experience, quite correct that, in reality, the defense counsel does not need to meet even a prima facie case before the trial judge will make inquiry of a prosecutor. Sure, for obvious reasons ā€¦ how often does the trial judge get an acquittal reversed following a prosecution appeal? šŸ˜ƒ - Rick ---
**Author:** ![TVAA](https://avatars.discourse-cdn.com/v4/letter/t/c57346/32.png) [@TVAA](https://boards.straightdope.com/u/TVAA)\ **Post date:** [November 18, 2003, 1:24pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/77 "2003-11-18T13:24:39Z")
Lawyers are allowed to dismiss jurors with high-level education and intelligence. I suspect eliminating deeply religious people would cause much less harm. ---
**Author:** ![SnoopyFan](https://avatars.discourse-cdn.com/v4/letter/s/d07c76/32.png) [@SnoopyFan](https://boards.straightdope.com/u/SnoopyFan)\ **Post date:** [November 18, 2003, 10:57pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/78 "2003-11-18T22:57:15Z")
Of course, someone deeply religious couldnā€™t possibly be someone with a high level of education and intelligence, right? ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [November 19, 2003, 6:52pm UTC](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014/79 "2003-11-19T18:52:12Z")
> [@](#): > > \*Originally posted by TVAA \* > \*\*Lawyers are allowed to dismiss jurors with high-level education and intelligence. I suspect eliminating deeply religious people would cause much less harm. \*\* How much harm would be inflicted by permitting lawyers to remove persons that would use the Great Debates forum to take Pit-type shots at religion and religious people? [Previous page](https://boards.straightdope.com/t/batten-down-the-batson-can-we-kick-jurors-for-being-too-religious/213014.md?page=3)