Peremptory Challenges Revisited

In 2008, I wrote an article for Political Cartel discussing peremptory challenges.  A peremptory challenge is when attorneys for the prosecution or defense are permitted to strike jurors during selection without providing a reason.  I argued that they were unlikely to be used for a legitimate purpose that advances the cause of justice but were likely to be used for the illegitimate purposes of excluding jurors based on demographic information, effectively institutionalizing unfair discrimination and subverting justice.

The courts have consistently held that peremptory challenges that are shown to be discriminatory are impermissible.  Batson v. Kentucky, 476 U.S. 79 (1986) is the landmark case that established the Batson Principle and Batson Challenges in cases where defendants can invalidate verdicts by showing that a cognizable group was excluded from the jury.  This ruling is well reasoned and has been upheld in other cases, but it does not fully address the problem.

In the article published last year, only the possibility of injustice being perpetrated on the defendant was considered.  However, peremptory challenges offer the opportunity for injustice to be injected that adversely affects the state to the unfair benefit of the defendant.  The Batson Principle only applies to the defendant because only the defendant has the ability to appeal a conviction.  If a defendant is acquitted at trial, the prosecutor may not appeal the decision on the grounds that a cognizable group was excluded resulting in a tainted jury.

In Pennsylvania, where I am studying law, attorneys for both sides have between 5 and 20 peremptory challenges each.  The 10-40 potential jurors who could be struck by the attorneys without any explanation given might very well have been impartial, representative members of the community, or “peers.”  If evidence emerges that casts doubt on their impartiality, then those jurors should be struck for cause and that cause should go on the record.  If, however, they are merely struck because of their race, gender, or ethnicity, then the trial jury is being deprived of competent jurors and our system has institutionalized and legitimized discrimination.

I have called for eliminating peremptory challenges before.  Although the courts have upheld the Batson principle, it is very difficult for a defendant to obtain relief under it, even if discrimination has occurred.  The burden in such cases rests on the defendant to show that the prosecutor systematically excluded a cognizable group of people without cause.  The legal reality under this principle is that many defendants have substandard juries as a result of discrimination, but are unable to meet the burden of proof on appeal to show that it occurred.

Perhaps an even more compelling reason to eliminate peremptory challenges is the potential bias that favors the defendant.  The defendant’s attorney may strike numerous qualified jurors from the pool purely based on race, ethnicity, or gender.  In fact, since the duty of the defense attorney is to the client and the incentives are there, it is very likely that such strikes occur on a regular basis.  The defense attorney does not need any cause when using these peremptory challenges.  After the trial, the state has no recourse to appeal based on the Batson principle.

The best argument in favor of peremptory challenges is that it makes the verdict more acceptable to all parties because both sides had the opportunity to remove any potential jurors they suspected of being prejudiced.  This justification fails for two reasons.  The first is that peremptory challenges lead to verdicts that are and should be questioned by both sides.  When jurors are struck for no reason, one reasonable assumption is that they were struck for illegitimate discriminatory reasons.  The second reason is that our legal system must seek to maximize fairness and minimize unfairness.  Allowing jurors to be struck based on their race, ethnicity, or gender makes a mockery of the idea of fairness and institutionalizes discrimination deep in the very system which should be the strongest opponent to it.

It is not reasonable to hope that attorneys will act in the interest of fairness instead of in their clients’ interest; we must change the system and rearrange the rules and incentives.    Instead of hoping for the best, abiding by the Batson Principle, and waiting for defendants to prove discrimination, we should eliminate peremptory challenges altogether in this country.  Peremptory challenges open up the opportunity and provide the incentives for injustice on both sides, and that diminishes the legal system overall.