Peremptory Challenges: Dead or Alive?

Jury selection: it is not a matter of getting selected. Rather, it is a matter of de-selection. In Arizona, de-selecting potential jurors from the jury pool has just become more challenging as it becomes the first state to put an end to peremptory strikes in jury selection. 

Historically, there were two ways of de-selecting potential jurors in Arizona: challenges for cause and peremptory challenges. Challenges for cause aim to disqualify potential jurors for reasons to believe that the individual cannot be fair and unbiased or are just simply incapable of serving on a jury. On the other hand, peremptory challenges are used to dismiss potential jurors without stating a cause. Evidently, challenges for cause provide more concrete grounds as to de-selection of a potential juror, whereas peremptory challenges are made on more of a “gut feeling”/intuition, which often times was based on stereotypes and unconscious forms of bias. Thus, to prevent discrimination in jury selection, the United States Supreme Court created what is known as the Batson challenge. However, the American Bar Association (ABA) has noted that the Batson challenge has “done so little to stop discrimination in the use of peremptory strikes” because attorney’s can overcome Batson challenge by providing any race-neutral reason for the challenge (e.g., juror twitched when she answered, juror did not seem intelligent enough to understand case, etc.), which is precisely why peremptory challenges are such a hot legal issue. In fact, a study in North Carolina of death penalty cases over a 20-year period since Batson showed that race still contributed to peremptory challenges.

In response, the Arizona Supreme Court completely eliminated peremptory challenges to try and further combat discrimination of colored people from serving on juries. So, as of January 1, 2022, all lawyers in Arizona, which were previously afforded between two and ten peremptory challenges, can only rely on challenges for cause to de-select potential jurors. 

The question many people start asking is whether that was the most ideal thing to do. Should they have left peremptory challenges alone? Should they have taken smaller steps in eliminating peremptory challenges just like Washington did? Should all states eliminate peremptory challenges like Arizona? In my opinion, all states should follow Arizona’s lead! The law is always changing, typically for the better, and this is an example of that. 

I believe that jury selection in Arizona will be more efficient in providing a fair and impartial jury. First, there would be smaller juror pools needed because there aren’t any “free” strikes. Second, attorneys will have to depend on challenges for cause to obtain their “perfect jury.” This means that they will have to thoroughly interrogate and take comprehensive notes of potential jurors. Furthermore, in relying on solely challenges for cause, attorneys are obligated to rely on more concrete grounds as to de-selection. Thus, challenges will not be left to the subjective beliefs or perceptions of an attorney. Nevertheless, we will not know what the full impact of Arizona’s new rules are until after they have been in place for some time. But, at the very least, there is a determination to change the reality of peremptory challenges.