Ivy Leaf - Winter 2008

Could Jesus Serve on a Jury?

By Anthony D. Foti '04 (Altoona, '00-'02)


Summary of Foti’s article, “Could Jesus Serve on a Jury? Not in the Third Circuit: Religion-Based Peremptory Challenges in United States v. DeJesus and Bronshtein v. Horn,” 51 Vill. L. Rev. 1057 (2006)

Peremptory challenges are a cornerstone of American jurisprudence. Theoretically, peremptory challenges help secure a fair trial by allowing lawyers to exclude presumptively biased lawyers based on intuition. In practice, they have been misused to advance discriminatory purposes.

Prior to trial, the “venire,” a pool of potential jurors, is formed when the court issues a jury summons and divides the pool into smaller groups for specific trials. The judge and attorneys for each side then question the potential jurors on various topics, including their background, personal opinions and life experiences through a process referred to as “voir dire.” During this process, an attorney may challenge a prospective juror either “for cause,” or without cause by exercising a peremptory challenge.

Peremptory challenges are an American common-law tradition that made their way into American law as early as 1790. Since then, peremptory challenges have been used as an “arbitrary and capricious” method to challenge the seating of prospective jurors without reason or inquiry into motive. Peremptories are intended for situations in which an attorney cannot articulate a specific reason for objecting to a prospective juror, but has some reason to believe a juror may be undesirable. Attorneys usually exercise peremptory challenges based on intuition, making educated guesses using very limited information. The danger of peremptory challenges is that they also permit a lawyer to stereotype when exercising the allotted challenges.

The past two decades have been a tumultuous time for the use of peremptory challenges in jury selection. Before then, parties had the right to exclude any person from a jury pool without stating a reason. Then, in Batson v. Kentucky, a 1986 decision, the United States Supreme Court outlawed peremptory challenges based on race. Later, in 1994, in J.E.B. v. Alabama ex rel. T.B., the Court expanded this protection to gender. Recently, some lawyers have argued that additional suspect groups should be entitled to the same protection.

Why not protect religion? Courts have not reached a consensus regarding whether religion-based peremptory challenges are constitutional under the Fourteenth Amendment to the United States Constitution, which guarantees all persons equal protection under the law. The Supreme Court has declined to resolve the issue. “Could Jesus Serve on a Jury?” argues that religion should be protected. While on the United States Court of Appeals for the Third Circuit, Judge, now Supreme Court Justice, Samuel Alito suggested that religious affiliation-based peremptory challenges are unconstitutional in Bronshtein v. Horn. In an ironically-named case, United States v. DeJesus, however, the Third Circuit created an unusual dichotomy: “Assuming that the exercise of a peremptory strike on the basis of religious affiliation is unconstitutional, the exercise of a strike based on religious beliefs is not.” The DeJesus court used “religious affiliation” to denote membership in a particular religious faction, as opposed to subscribing to specific religious beliefs. This is a critical issue in jury selection because attorneys fear deeply religious people: defense lawyers worry that deep religious beliefs signal a conservative, law-and-order orientation, while prosecutors are concerned that intensely religious jurors will be overly compassionate and hesitant to sit in judgment of others.

The Third Circuit’s opinion in DeJesus bifurcates religion-based Batson challenges into two separate factions - religious affiliation and religious belief. Because the Third Circuit refused to extend Batson to “heightened religiosity” or “heightened religious belief,” “heightened religiosity” has become a proxy to allow lawyers to exclude jurors based on their religious affiliation. For example, few lawyers would challenge a non-practicing Catholic or Protestant on a jury, but Batson issues will often arise with Orthodox Jews, Jehovah’s Witnesses and Muslims. By definition, these groups exhibit “heightened religious involvement,” and now, according to DeJesus, a lawyer may exercise a peremptory challenge against nearly any member of these groups on the basis of heightened religious belief. This effectively destroys any protection for religious affiliation because the groups most in need of protection are the same groups that can be excluded in light of DeJesus’s “heightened religious involvement” analysis. Furthermore, peremptory challenges based on religious affiliation are unconstitutional because they involve the state playing favorites among religions. Batson should, therefore, be extended to religion-based peremptory challenges to eviscerate the type of religion-based stereotypes that were the impetus for protection of race- and gender-based strikes.

“Could Jesus Serve on a Jury?” answers the question whether Jesus could actually serve on a jury in the Third Circuit. As hyperbolic as this question may seem, it is a droll illustration of how the Third Circuit’s analysis in DeJesus and Bronshtein will apply in practice. Jesus was Jewish. Justice Alito’s opinion in Bronshtein suggests that Judaism is a cognizable group under Batson. Therefore, in the Third Circuit, religion should receive strict scrutiny review subject to Batson, protecting Jesus’s religious affiliation. Jesus, however, is a definitive example of “heightened religiosity,” so under DeJesus, Jesus could be stricken from a jury by a peremptory challenge.

What would DeJesus do … or rather what does DeJesus mean? Peremptory challenges have become increasingly contentious in our judicial system. Religion is nearly universally afforded the same protections as both race and gender - and peremptory challenges should be no exception. Although the number of devoutly religious persons excluded from juries will likely be small, the political and symbolic importance of DeJesus and Bronshtein is enormous. The discord among courts can be resolved only by a Supreme Court decision determining the constitutionality of peremptory challenges based on both religious affiliation and heightened religious beliefs.


About the Author:

Anthony D. Foti, of Middletown, New Jersey, attended Penn State Altoona from 2000-02, graduating from the University Park campus in 2004 with a B.S. in Finance and with minors in Psychology and Economics, earning a 4.0 cumulative GPA and graduating with Highest Distinction. He received his Juris Doctor from the Villanova University School of Law in 2007, where he was managing editor of the Villanova Law Review, a scholarly journal focusing on legal issues that is published by law students and serves as a vehicle for academic publishing in the field of law.

Law review articles serve an important purpose in that they express the ideas of legal experts with regard to the direction the law should take in certain areas, have been influential in the development of the law, and have frequently been cited as persuasive authority by the United States Supreme Court and other courts throughout the United States. The vast majority of law review articles are written by law professors, although some scholarly articles are written by judges, legal practitioners—and even law students, such as Foti who published his article “Could Jesus Serve on a Jury?” in the Villanova Law Review while still a student.

According to Foti, “The idea of myself as a lawyer and of law as a transmitter of society’s values is central to my identity.” He crafted the article “Could Jesus Serve on a Jury?” “utilizing a sophisticated case law analysis and several biblical references purely for purposes of satire in order to make the piece more compelling to readers and not for any specific religious message.” Foti wrote the article to argue against religious discrimination, just as he “strongly opposes any kind of discrimination, including discrimination against race or sex.”

Currently, Foti is serving as a federal judicial law clerk for the Honorable Dennis M. Cavanaugh in the United States District Court for the District of New Jersey. Upon completion of his one-year clerkship, Foti will join the firm of Pillsbury Winthrop Shaw Pittman LLP in their New York City office.

Reminiscing about his Penn State days, Foti states, “I love Penn State, but I really love Penn State Altoona. Because it was a smaller school, I knew almost everyone and I really felt like a part of the Penn State Altoona family. I cherish the two years I spent at Penn State Altoona.”