Imagine you were provided a team of twelve people and told that a vehicle would soon speed down the street, without stopping, and, afterward, your team would be asked to agree on, and report, as many details as possible about the vehicle, its driver, and any passengers. Would you position all twelve of your team members on the same street corner to watch, from the same vantage point, as the vehicle sped by? A consensus might be easier to reach afterward if all twelve watched from the same corner, but would that maximize the information available to your team and help them create the most accurate report possible? Isn't it likely that a better report could be prepared if team members were positioned strategically along both sides of the street?

In prior articles, I shared what I have learned from neuroscientist David Eagleman's books about the unique internal replicas we each create in our brain, by constructing the people, events and world we perceive around us. Our data receptors provide an endless stream of information to the brain, and our experiences and background influence what we consider relevant and important. It is this personally-relevant, and, therefore, important data which is selected from the available options and uploaded, largely subconsciously, into the "realities" being built inside our brains every second of every day. If we acknowledge that the details recognized and included in our own reality on a daily basis are not the same details recognized and included by others, then we must also admit that there are facts and circumstances existing in the world, even directly in front of us, that we utterly fail to perceive. Your team will learn more about the speeding vehicle if it combines and analyzes details collected by twelve people viewing the event from twelve different perspectives. Similarly, we will get a better picture of the world around us if we listen to others' accounts of what they saw, heard, and felt, and incorporate that information into our own internal realities. Like magic, we will suddenly "see" a detail that was always existing, but was undetected until our attention was intentionally drawn to it.

Last month, I criticized the availability of peremptory jury strikes, because they are routinely used to, lawfully and unlawfully, reduce the number of significantly-distinct vantage points ultimately represented on a jury. When we eliminate vantage points and create a cluster of jurors who view a trial from the same street corner, many of the relevant details embedded in the evidence are simply never incorporated into the version of events being created by the jurors. There is nothing malicious or intentional about this disregard of relevant facts by the jury, but, rather, it is the unfortunate consequence of watching the event from the same street corner. When different perspectives are eliminated during jury selection, or not shared by those on the jury, the subjective data selection and interpretation processes utilized by our brains, for efficiency, are less likely to collectively create a comprehensive and accurate picture of the evidence presented.

When peremptory strikes are used to manipulate the make-up of a jury, diversity among jurors is typically the main casualty. State and federal courts are often required to determine whether unlawful discrimination has occurred. In Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), the U.S. Supreme Court outlined a three-step process for evaluating whether a peremptory strike constitutes unlawful discrimination under the Equal Protection Clause. The first step requires a prima facie showing by the challenger that the peremptory strike was based on a prospective juror's race or gender. Step two requires the proponent of the strike to provide a race/gender neutral explanation. In step three the court determines whether purposeful discrimination has been established. See People v. Rodriguez,351 P.3d 423 (Colo.2015) ("[C]ourt's step-three ruling should be based on its evaluation of the prosecutor's credibility and the plausibility of his explanation. If the trial court is convinced . . . that the proffered reason was pretextual and that the prosecutor actually based his peremptory strike on the prospective juror's race, then it must uphold the Batson challenge").

Reviewing just a small slice of the many cases involving Batson, reveals the tremendous amount of judicial and other resources regularly consumed on the peremptory strike. Moreover, the third step of Batson seems like a significant problem for lawyers and courts. Doesn't this step require the court to determine whether the lawyer (who is about to engage in a trial before it) is lying to the court about the neutral justification offered? Wouldn't lying to the court constitute a serious violation of the lawyer's duty of candor (Colo. RPC 3.3)? Isn't it harmful to our profession as a whole for the veracity of lawyers to be routinely questioned, analyzed and determined in this context, as a matter of course? Is there any justification for the peremptory strike which outweighs its significant costs?