Peremptory Strikes: Too Much Discretion has Harmed Jury Trials

 Introduction

            Attorneys know the importance of seating a favorable jury for their case, and a good trial lawyer will use the rules of jury selection to aid them in their quest for a winning verdict. Throughout the country the rules have typically afforded opportunities to “strike” potential jurors (28 U.S.C. § 1870 (for civil trials) and Rule 24 of the Federal Rules of Criminal Procedure (for criminal trials)).

            Each side is afforded infinite strikes “for cause” because those challenges remove jurors who are deemed incapable of deciding the case impartially. However, given the nature of jury selection, a juror’s implicit bias may sneak past any strike for cause, and many members of the venire may be seated on the jury simply because they remained quiet enough not to cause any alarms for the attorneys or the court. Because of that reality, attorneys are given a second chance at “fixing” problematic jurors in the form of “peremptory strikes.”

            But those peremptory strikes produce more problems than they solve.

The Problems With Peremptory Strikes

            Peremptory strikes require no reason to be given for removing a potential juror. Attorneys are given discretion with these challenges, and that discretion through peremptory strikes has gone largely unchecked over the course of United States judicial history. But even with multiple Supreme Court opinions on the matter, peremptory challenges remain impossible to regulate. The needs for such regulation of these strikes include protecting against race-based or gender-based challenges, which is something that has marred our nation’s past.

            Attorneys may favor one race over another because of generalized factors that paint entire swaths of the population in the same light. Accordingly, the use of peremptory challenges has proven to be a double-edged sword: on the one hand, peremptory challenges allow attorneys to catch some of the problematic jurors that avoid any for cause strikes, which provides for fairness in eliminating potential biases; however, the negative side of peremptory strikes allow for a conveniently cloaked effort to challenge specific groups of people with virtually no restriction.

Arizona & Washington: Recent Attempts at a Solution

            It is the inability of courts to regulate peremptory challenges that has created increased discussion regarding the complete removal of peremptory strikes. In fact, just last year, the Arizona Supreme Court, due to a lack of guidance on handling peremptory strikes, removed them from any state court proceedings. Additionally, the legislature in Washington state added specific language to its statute regarding jury selection that sets out “presumptively invalid” reasons for excluding a juror—an effort that limits attorney discretion for these challenges.

            The recent move by Arizona’s top court and Washington’s legislature begs the question: should peremptory strikes’ scope be narrowed or struck entirely?

            To be sure, the United States Supreme Court has alluded to doing just that in prior opinions, most notably in Chief Justice Marshall’s concurrence in the Batson v. Kentucky opinion. Batson saw racially motivated peremptory strikes lead to an unconstitutional conviction, and the Supreme Court ultimately created a three-step approach to challenging peremptory strikes. The Batson challenge established, in part, that the court gets to determine if the strike was racially motivated. While this appears to be a victory for trial courts on paper, in practice, Batson challenges have very rarely been upheld by judges. In effect, Batson simply added a very low bar, which has maintained the status quo in jury selection as trial lawyers have been trained to prepare a race neutral reason for any suggested challenge—trainings that have been overtly targeted at circumventing the Batson rule.

Conclusion—What is to be Done?

            Because of the nature of people, peremptory challenges can be a useful tool in trials. Jurors may stay quiet about biases for a number of reasons, so they fail to be deselected for cause, or attorneys and judges may simply miss a question that would reveal such a “cause.” However, the negative aspects of peremptory challenges seem to have tipped the scales of justice enough to favor Arizona and Washington’s approaches on the issue.

            Unfettered discretion, with no limiting language, has simply created an avenue for savvy attorneys to get around the limitations on peremptory strikes. Moreover, much can be learned by studying the lack of any real practical effects Batson has had on trials, which further highlights the need for an adjustment on the matter.