Ellen Podgor's article raises that interesting question, focusing on the drafters' decision not to include sexual orientation as an improper grounds for striking potential jurors. (Ellen blogs at the White Collar Crime Prof Blog.) Abstract:
This Essay examines the role of the ABA Criminal Justice Standards: The Prosecution and Defense Function Standards, looking at language when initially drafted to language being considered in the proposed fourth edition. It focuses on the preliminary sections of the Standards that outline the intended role of the Standards and considers how courts have used these Standards in court decisions. It also notes how the Standards serve a hortatory role, providing internal guidance to prosecutors and defense counsel. An overriding question is whether these Standards serve a legitimate function in the criminal justice process?
Placing the question of the role of the Standards in a specific context, this Essay examines the drafters’ approach to jury selection and specifically to peremptory strikes based on sexual orientation. The drafters’ failure to explicitly include “sexual orientation” as an impermissible category for peremptory strikes of jurors, leaves the Standards merely endorsing existing constitutional criteria, which raises the question of whether the Standards have any purpose. This Essay advocates against the approach taken by the drafters, as it offers little advancement in the law and perpetuates existing bias. As hortatory standards, it is unnecessary to limit the rules to existing law. More importantly, by failing to expand the category of impermissible peremptory challenges, it is a missed opportunity to offer progressive legal reform.