Eliminate Peremptory Challenges
In jury selection, the final twelve members that will end up serving are selected from a much larger pool of individuals who get letters in the mail and show up to the courthouse. The process of whittling that group down to the actual jury is often long and complicated. Jury members fill out questionnaires and may be questioned by attorneys from either the prosecution or the defense. If one of the attorneys does not think that a potential juror is able to be fair and unbiased, that attorney may use a “for cause challenge” to strike that juror from consideration; however, the attorney must provide a reason why the individual would not be able to administer justice.
However, some countries such as the United States, also allow what are called “peremptory challenges.” These are a limited number of juror strikes that each side is given for which they do not need to provide any rationale whatsoever. That has historically meant that attorneys have used their peremptory challenges to strike jurors based on their race, gender, religion, or some other stereotype that is perceived to make that juror look at their client’s plight unfavorably. A historic Supreme Court case, Batson v. Kentucky ruled that striking jurors only because of race is unconstitutional, but proving beyond doubt that a juror was struck purely for racial reasons is extremely difficult. I completely agree with the ruling in Batson, but I think that its principle is impossible to uphold with the current system, and so I think we should eliminate peremptory challenges altogether.
Realistically, the primary purpose behind striking a juror without cause is because there either is no cause, or it is not an acceptable cause (i.e. race, gender). I am all in favor of assembling the best possible group of peers to sit on a jury in a trial, but I think that if any members are going to be excluded from that jury, there needs to be a legitimate reason, not just a vague suspicion or a flagrant prejudice on the part of the attorneys.
I will admit, though, that it is unlikely that peremptory challenges give a specific advantage to either the prosecution (or plaintiff) or defense, since both sides are given an equal number of challenges without cause. By the same token, I do not believe that eliminating peremptory challenges will be noticeably detrimental to one side or the other. However, I do believe that the mere existence of peremptory challenges is bad for our society and bad for the image of our supposedly blind justice system. As our society attempts to move beyond racial and gender discrimination, this is a major institutionalized form of prejudice that must be removed. Peremptory challenges are also a stain on the image of our justice system which prides itself on objectivity and fairness.
If there were a way to allow peremptory challenges and only limit the prejudicial aspects of them, that could potentially be acceptable. However, that is impossible. For the Batson principle to truly be effective, it must be extremely obvious and flagrant that the attorney was acting in a prejudicial way, and even then it would take months of trials and thousands of dollars to correct the issue. Instead, I think it is a much better solution to eliminate this process that almost completely exists to serve a prejudicial purpose.
The Supreme Court just handed down another decision on this subject a few weeks ago. Snyder v. Louisiana, 2008 U.S. Lexis 2708. The courts are starting to take a much stricter line as far a race-neutral requirement goes for peremptory challenges. We just went over this issue in civil procedure yesterday. As long as the safeguards are enforced, I see no harm in allowing peremptory challenges.
I am familiar with that case, but it doesn’t change the overall problem. The Court ruled that neither of the reasons provided justified excusing Jeffrey Brooks, the black juror; the first reason was because he appeared nervous, and the second was that the young man had obligations as a student teacher.
If judicial review of every single potential case of racially-motivated challenges is going to require legitimate justification, then why not require that justification at the time of the challenge? That makes more sense from the perspective of keeping the legal system moving along and not re-examining things that could be easily addressed before they become issues.
And if we are not going to judicially review many of these questionable cases (and I’m sure most have passed and will continue to pass unchallenged), then shame on us as a society for not standing up to institutionalized discrimination like this.
So the harms still exist, even under this newest precedent. It can never be effeciently enforced by judicial review later on, and even if it could, it would be wildly and unnecessarily ineffecient.
You say you see no harms, but I have pointed out the harms that still exist. How about some benefits? What is so great about peremptory challenges that justify their continued existance in our legal system?
You know, I tried to come up with a rational defense of peremptory challenge, just to stir the pot; however, honest to goodest, the best I could come up with was that if both parties have contributed in the configuration of the jury, they will find its verdict more acceptable. Removing individuals for no just reason doesn’t seem to employ any rational logic, from a fair and just judicial stand point.
What are the “safeguards” against illegitimate peremptory challenging? And how do you enforce them?
I see the problems that peremptory challenges pose. However, I don’t think you have to get rid of them completely. I would advocate allowing less like one, possibly two. Dr Breez did make a valid point today in con law about this one. It does provide a check on the judges who are unwilling to grant a for cause challenge.
Plus, you make it sound as if the only reason in the world you would use a peremptory challenge is in racial discrimination and that needs to be substantiated.
Having peremptory challenges as a check against out of control judges may theoretically provide some sort of benefit, but I think a common sense analysis of the incentives involved in the various roles tells us that we should probably trust judges to be more objective than attorneys representing one side or the other.
So even if there is a loss of a check against biased judges (which may exist, but are certainly rarer than biased attorneys), that lost check is still outweighed by removing the potential harm of institutionalized discrimination. Furthermore, in those instances where judges really do abuse their power by refusing to listen to rational for cause challenges, those few instances could be judicially reviewed later on more effeciently.
Of course I don’t think that racial discrimination is the only reason for ever using a peremptory challenge. There are plenty of other reasons, like gender discrimination, religious discrimination, and so on. But seriously, I think our Voir Dire process of jury selection is mostly a relic from old English Common Law and peremptory challenges have evidently been used there since 1156. Interestingly, England abolished peremptory challenges in 1988 with the Criminal Justice Act of 1988. The country that invented it evidently saw it as an unfair practice.
“It does provide a check on the judges who are unwilling to grant a for cause challenge.”
Isn’t that why there’s an inherent check (the appeals process), which guards against unfair or biased judges? Why does the U.S. judicial system need superfluous, and arguably arcane, protectionist measures that are open to possible abuse and institutionalized discrimination?
From a realistic standpoint, how often are judges unwilling to consider “for cause” challenges? And if they decline, can’t the aggrieved party appeal for for harm done due to judicial bias (as stated above)?
My earlier question still stands. How do you enforce the “safeguards” of peremptory challenges?
Is there any evidence that minorities aren’t getting to serve on juries?
And sure, the aggrieved party can appeal for harm done. But why should we draw out something like that? I’m not advocating swift justice but I am saying that going through a whole case and then having to appeal on those grounds just seems like a waste. For someone who is already missing worktime and wants to get back, they aren’t going to want to appeal.
I still think going from three peremtory challenges to one is the best way to fix the problem rather than getting rid of the all together.
Yes, see Snyder v. Louisiana.
That’s a pretty weak case for maintain peremptory challenges.
Chris, the biggest problem with peremptory challenges is that it is very difficult to prove in court that the reason for dismissal was motivated by race, gender, religion, or any other stereotype; but that doesn’t mean it isn’t happening. It is widely known that the process primarily serves the purposes of discrimination, but since both sides have been allowed to do it, we thought it was okay.
I still haven’t heard any sort of compelling reason to keep them that can outweigh the criticisms. A check on judges would be a miniscule benefit, and there are already other mechanisms for that. Is there anything else?
Yes I agree with getting rid of peremptory challenges. I am in Princeton Model Congress and this is what my bill will do. I appreciate this article because I will use it to help me create this bill. And I do agree that it is hard to uphold the decision made in Batson v. Kentucky so that is one of my reasons why I believe that peremptroy challenges should be taken out of our the U.S. legal system
Sweet.
“The entire system of jurisprudence is based on the premise of “trial by jury” and the only way you can get on a jury is if you prove beyond a shadow of a doubt that you know nothing about the case you’re about to try. Consequently, we have people’s lives being determined by twelve people in a room whose main in goal in life is to wrap it up and get home in time to watch “Alice” reruns on the Superstation because they think Flo is a real hoot.”
Libertarian Party Platform
Safeguards for the Criminally Accused
The judicial system must be reformed to allow criminal defendants and civil parties to a court action a reasonable number of peremptory challenges to proposed judges, similar to their right under the present system to challenge a proposed juror.
the quote above is from Dennis Miller on SNL
i couldn’t find much under fija.org on peremptory challenge. i will keep looking. i do know that the Fully Informed Jury Act does still allow peremptory challenge but does address other aspects of disqualifications.