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Were women excluded from jury because of gender?

IN JURYTRIALS EACH SIDE IS ENTITLED TO A CERTAIN NUMBER OF "PEREMFFORY CHALLENGES" OF JURORS AS WELL AS"CHALLENGES OF JURORS FOR CAUSE." The very nature of a peremptory challenge is such that no reason need be given for the challenge. Conversely, challenges for cause may be made and granted or denied at the discretion of the trial judge. Although ordinarily challenges can be made without cause, there is an exception! If it can be shown that peremptory challenges are made on the basis of gender, race, or other inherently discriminatory reason, a jury can be found to be unlawfully constituted, and its verdict declared null and void, resulting in a new trial. Those were some of the issues that arose when the plaintiffs in this Colorado case contended that attorneys for a physician who allegedly committed medical malpractice by failing to timely diagnose rectal cancer in a female patient. The plaintiffs raised the issues attorneys for the physician used his peremptory challenges to eliminate live female jurors. The first four of jurors challenged were women. Was this gender discrimination in violation of law?

CARLA AND DENNIS CRAIG FILED A MEDICAL MALPRACTICE SUIT AGAINST DR. DENNIS CRAIG During the course of empaneling a jury, Dr. Craig's attorneys used their first four peremptory challenges to exclude four women from the jury. Later, they utilized a fifth peremptory challenge to exclude a filth woman from the jury. The Craigs objected that Dr. Carlson was exercising his peremptory challenges to remove women from the jury in violation of the United States Supreme Court's decision in the case of Balson v. Kentucky, 476 U.S. 79 (1986). Dr. Carlson argued that the holding in Batson does not apply to cases of gender discrimination and, furthermore, that he had "not realized" that he had used his first four peremptory challenges to eliminate women from the jury. The trial court overruled the Craigs' objection based on the trial courts erroneous conclusion that Batson does not apply to gender discrimination. A successor court ruled that the trial court had erred in holding that Batson did not apply to gender discrimination. The same court concluded that the Craigs had established a pima facie case of gender discrimination. However, the court concluded that Dr. Carlson had provided nondiscriminatory reasons lot exercising his challenges. The Craigs appealed.

THE SUPREME COURT OF COLORADO AFFIRMED THE JUDGMENT OF THE LOWER COURT. The court held, interalia, that the successor court correctly found that the Batson case had to be followed. However, the successor court noted that the burden or proof to show gender discrimination was on the Craigs. Although the Craigs did, in fact, show a prima facie case of gender discrimination, Dr. Carlson proffered at least one nondiscriminatory reason for using his peremptory challenges for each of the five women excluded from the jury. Accordingly, the verdict in favor of Dr. Carlson was affirmed by the court.

THE FACT THAT WOMEN OR OTHER MINORITIES ARE EXCLUDED FROM JURY PANELS DOES NOT MEAN, IPSO FACTO, THAT GENDER, RACE OR OTHER ILLEGAL DISCRIMINATION HAS BEEN COMMITTED. In this case, despite the fact that the Craigs had presented a prima facie case of gender discrimination, the court found that Dr. Craig, rebutted that presumption by proffering nondiscriminatory reasons for using a peremptory challenge for each of the five prospective women jurors. Editor's" Note: It is interesting to note that the reasons given by Dr. Craig to justify the exercise of his peremptive rights included several instances wherein the jurors in question either had, were related to, or knew, someone with colon cancer. Your editor respectfully submits that in today's society it would he virtually impossible not to have a prospective juror or friend, relative, or other acquaintance who had not, to one degree or another, had some history of colon cancer, whether it was successfully treated or not. Curiously, at least one of the women who was the subject of a peremptory challenge by Dr. Craig had a friend or relative who had been successfully treated for colon cancer. To the extent that one is entitled to a trial by a jury of his or her peers, and that in today's society virtually every one or one or more of one's peers has either had a personal experience with colon cancer or has a friend, relative or is otherwise acquainted with someone who has had colon cancer Accordingly, one may wonder whether justice was done by allowing Dr Craig to peremptorily challenge no less than five women jurors on the grounds set forth. Were male jurors subjected to the same scrutiny? Were women jurors illegally discriminated against? Craig v. Carlson No.--062507 P.2d--CO
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Title Annotation:peremptory challenge
Author:Tammelleo, A. David
Publication:Nursing Law's Regan Report
Geographic Code:1USA
Date:Aug 1, 2007
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