Saturday, August 28, 2021
The Supreme Court of Arizona has taken the landmark step of eliminating peremptory challenges from jury selection in both civil and criminal cases. So, what does this mean, and why did the court do it?
During jury selection, there are two types of challenges that parties can make to prospective jurors to prevent them from being empaneled as trial jurors. The first type is the for cause challenge. With a “for cause” challenge, the party is claiming that the venireman is unqualified to serve as a juror. There are two ways that a prospective juror might be unqualified to serve as a juror. First, the prospective juror might be statutorily unqualified to serve based upon not being a U.S. citizen or not speaking English.
Second, the prospective juror might be unqualified to serve based upon bias. This can be based upon a finding of actual bias demonstrated during voir dire. For instance, if a defendant is Muslim and a prospective juror indicates during voir dire that he believes that all Muslim people are violent, the defense could raise a “for cause” challenge against the prospective juror. A venireman can also be challenged for cause based upon implied bias. Basically, a court will find implied bias when it is impossible to assume that a prospective juror can be unbiased based upon some connection that he has to the case, the parties, the attorneys, or the judge. For instance, if a defendant is charged with murder and a prospective juror previously had his brother brutally attacked by the defendant, the defense could challenge the prospective juror for cause even if the prospective juror claimed that he could decide the case in an unbiased fashion.
The parties can also make peremptory challenges to prospective jurors. A peremptory challenge is a challenge in which the party does not need to state the reason(s) for the challenge. Unlike “for cause” challenges, peremptory challenges are limited in number.
In Batson v. Kentucky, the Supreme Court "ruled that a State may not discriminate on the basis of race when exercising peremptory challenges against prospective jurors in a criminal trial." (the holding has since been extended to prevent other types of discrimination as well as discrimination by criminal defendants or civil parties). That said, courts very rarely find that parties violate Batson, prompting concerns that parties frequently use peremptory challenges to exclude people from certain races, genders, and religions from juries without any blowback.
Such concerns recently led the Supreme Court of Washington to hold that a party can prove a Batson violation by establishing that "an objective observer could view race or ethnicity as a factor in the [opposing party's] use of the peremptory challenge,” even without proof that the opposing party was in fact motivated by the prospective juror's race or ethnicity.
Now, the Supreme Court of Arizona has gone farther by abolishing peremptory challenges in both civil and criminal cases. It all started back in January with a petition by Arizona Supreme Court Court of Appeals Justices Peter B. Swann and Paul J. McMurdie (Download Peremptory Petition Final). The petition proposed amending Rules 18.4 and 18.5 of the Arizona Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure to eliminate peremptory challenges (Download Appendix A).
The justices gave three primary reasons for eliminating peremptory challenges:
-History Does Not Support the Need for Peremptory Strikes: Our Regime of Bilateral Peremptory Strikes Neither Comes From English Common Law, Nor Is It Grounded in the U.S. Constitution;
-Combating Partiality by Offsetting Peremptory Strikes Is Inherently Unfair; and Worse Now Given the Distrust That Comes From the Differential Rates of Exclusion By Race; and
-A Neutral Rule Best Fulfills this Court’s Objective of Building Public Trust and Confidence, and Abandoning Peremptories Demonstrably Eliminates Bias in All Directions.
With regard to the second reason, the justices noted that, inter alia,
Study after study shows that peremptories are exercised in a discriminatory fashion in states throughout the United States. A study of capital cases in North Carolina, for example, found that of the 307 jurors who were struck,
[T]he prosecution’s strikes were responsible for eliminating 12% of whites who went through the voir dire process without being removed, and 35% of blacks who did so. It shows that the defense’s strikes eliminated 35% of whites who were not removed during voir dire, and 3% of blacks. The differences are statistically significant at the .001 level.
Anne M. Eisenberg, Removal of Women and African Americans in Jury Selection in South Carolina Capital Cases, 1997-2012, 9 Northeastern University L. Rev. 299, 339 (2017). A recent Mississippi study concluded:
. . . Black venire members are 4.51 times as likely to be excluded from a jury due to peremptory challenges from the prosecution in comparison to White venire members. Conversely, White venire members are 4.21 times as likely to be excluded through peremptory challenges by the defense in comparison to Black venire members . . . After controlling for all observed variables, there remain significant differences between White and Black venire members, suggesting racial discrimination by both the prosecution and the defense in peremptory challenge usage. Black individuals are more likely to be excluded from juries through these effects, resulting in less racially diverse juries.
Witney DeCamp & Elise DeCamp, It’s Still About Race: Peremptory Challenge Use on Black Prospective Jurors, 57 J. of Rsch. in Crime and Delinq. 3, 3 (2020).
Professors Catherine Grosso and Barbara O’Brien of the Michigan State University College of Law canvassed studies of the impact of race on jury selection existing as of 2012. They noted a study from North Carolina finding that “[p]rosecutors used 60% of their strikes against black jurors, who constituted only 32% of the venire. In comparison, defense attorneys used 87% of their strikes against white jurors, who made up 68% of the venire.” Catherine M. Grasso & Barbara O’Brien, A Stubborn Legacy: The Overwhelming Importance of Race in Jury Selection in 173 Post-Batson North Carolina Capital Trials, 97 Iowa L. Rev. 1531, 1539 (2012). And in a study of capital cases from Philadelphia County, a study revealed that “prosecutors struck on average 51% of the black jurors they had the opportunity to strike, compared to only 26% of comparable non-black jurors. Defense strikes exhibited a nearly identical pattern in reverse: defense counsel struck only 26% of the black jurors they had the opportunity to strike, compared to 54% of comparable non-black jurors.” Id.
The petition was then posted for public comments, which were mixed. For example, one commenter noted, inter alia,
With all due respect, this rule change would have chilling consequences for litigants' rights to fair jury trials. Judges are already hamstrung when it comes to dismissing jurors for cause because of the fear of needing to call up a new panel of prospective jurors. As it stands now, if a juror should be dismissed, but is not, the parties can elect to use one of their peremptory challenges on the juror to ensure a fair and impartial panel. With this rule change, a party will be left with no recourse. This is a "solution" in search of a problem.
Conversely, another commenter noted, inter alia,
The basis for the original petition focuses primarily on the racial injustice inspiring the modern form of peremptory challenges and their historic abuse. This misuse of peremptory strikes has required court intervention in attempting to correct these wrongs. (See, Batson v. Kentucky, 476 U.S. 79 (1986)). Batson and its progeny have been difficult for the courts to enforce and often leads to accusations of racial animus against lawyers. This alone supports ending these strikes.
Now, it looks the petition has been adopted, and there will be no more peremptory challenges starting in 2022.