It's Clear the Jury Selection Process Needs An Update - But How?
Its funny that we call it the "jury selection process" - otherwise known as Voir Dire - when in actuality, it is the jury de-selection process. The mechanics of how juries are picked are complex and controversial, but the main concern with this process are the "challenges" attorneys use to disqualify an individual from serving on the jury.
In most courts, attorneys have "for-cause challenges" and "preemptory challenges." After questioning the potential jurors, each party's attorney may use one of these challenges to render one of the potential jurors as unfit to sit on the jury for that trial (Deborah C. England, How Lawyers Choose Juries). Each party has unlimited for-cause challenges, which are based on some reason or cause to eliminate the juror. These are relatively broad challenges, allowing the attorney to strike unlimited prospective jurors as long as there is an evident cause to do so.
Preemptory challenges are the topic of most jury selection criticism. Each party's attorney gets a limited number (usually 3 per side in a federal civil case (28 U.S.C. § 1870); in federal criminal trials, the number of preemptory challenges allows is 10 for the defendant and ten for the prosecution in a felony case, 20 for each side in a death penalty case, and 3 for each side in a misdemeanor case (Fed. R. Crim. P. 24), which allow the party to disqualify the juror without cause. In other words, they do not need to state the reason why they would like to dismiss this juror. Preemptory strikes are considered controversial because, without an explanation for why this juror is being dismissed, the attorneys could be using an improper basis to do so. For example, race, gender, social status, residence, political views, etc. Preemptory challenges are acceptable to eliminate jurors for completely arbitrary reasons and provide no explanation whatsoever, making the motives extremely shady.
Arizona's State Supreme Court took a surprising step last fall (August 2021) to eliminate preemptory challenges in an attempt to ensure juries are more diverse (Ian Millhiser, Arizona Launches Bold New Experiment to Limit Racist Convictions - August 31, 2021). Because there is no explanation or cause required for a preemptory juror strike, these challenges are often used to exclude people because of their race. And Arizona will be the first state to completely eliminate these types of challenges in their jury selection process.
This sounds like a good thing right? Well, some may say it is. But others may say that without preemptory challenges, attorneys will not be able to remove ""jurors who they believe might be biased, even if the juror doesn't do anything suspicious enough to justify removing them from cause. We see this all the time - we all have biases. And sometimes attorneys can see it based on other questions they ask the jurors, leading them to want to eliminate them to protect their client in court.
Arizona is hopeful that eliminating these challenges will help their court system because of two reasons. The first is that their rule requiring an unanimous verdict is another safeguard ensuring the defendant will not get injustice. The second being that the decision to eliminate these challenges has been done successfully by other democracies, such as Great Britain and Canada.
Although there are some constitutional limits to preemptory strikes (such at Batson), they are very difficult for judges to apply as they have to basically "sniff out whether a particular juror was removed for racist reasons." Furthermore, only 5 cases in Arizona have been reversed over a Batson challenge.
The idea to eliminate preemptory strikes is not new - in fact, it was proposed by Justice Thurgood Marshall over 3 decades ago. So why haven't we done it?
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