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AGAINST THE PEREMPTORY CHALLENGE. Adam Liptak has an excellent article (via) about peremptory challenges and their ongoing use to produce racially unrepresentative juries. Liptak mentions the 2005 Miller-El case, which I discussed here. (Remarkably, despite extensive evidence that created an exceptionally strong inference of unconstitutional race-based peremptories, Scalia, Thomas and Rehnquist dissented.) This case illustrates, however, the difficulty of proving racial discrimination no matter how overwhelming the patterns of exclusion are, and despite the Supreme Court's invitation state courts are unlikely to supervise procedures very aggressively. Like Liptak, Thurgood Marshall, and Stephen Breyer, I think it's time to do away with peremptory challenges entirely. They aren't constitutionally mandated, and it's increasingly hard to see how permitting the arbitrary exclusion of jurors would lead to fairer trials.
Breyer quotes Arthur Goldberg, who noted that "[w]ere it necessary to make an absolute choice between the right of a defendant to have a jury chosen in conformity with the requirements of the Fourteenth Amendment and the right to challenge peremptorily, the Constitution compels a choice of the former." This does seem to be the choice we're faced with in many cases, and Goldberg is certainly right about how such a choice must be resolved.
--Scott Lemieux
COMMENTS (7)
as a non-lawyer, i've long agreed. what is the argument for preemptory challenges?
Posted by: howard | June 5, 2007 1:28 PM
Most all of the crimes and certainly most crimes against persons are state statutes. Federalism getting in your way when you redesign the system (again)?
Would your suggestion of doing away with this practice help whites as well? Has anyone done any studies on the effect of whites? Is it an abomination to care what happens to 80% of the population when discussing fairness?
Posted by: Fred Jones | June 5, 2007 2:55 PM
Preemptory challenges are for those situations where counsel's experience suggests that a prospective juror may harbor a bias that the (fairly limited) questioning permitted fails to disclose. You don't get a lot (in New York, typically, three a side in civil cases). They generally shorten the process, rather than prolong it, because rooting out the basis for a cause challenge can be very time consuming. Batson objections are inevitably going to be difficult problems for the court, and are probably best avoided by making sure the officer responsible for the jury array (the Commissioner of Jurors, or whoever) has been scrupulous in assembling a pool that reflects the diversity of the community. It is easier said than done, I'm afraid-- I've gone three or four cases in a row without seeing an African-American, and lots of times even when I do, they say something that amounts to an automatic challenge for cause, and I get a white panel.
Posted by: Bill Altreuter | June 5, 2007 3:28 PM
There are many, many factors that an attorney considers when he/she decides on jurors. Race is only one factor in a long, long list.
For example, where I practice, one out of every fifteen or so jurors is a drooling beast. But you can't say, "I don't want that guy because he's a drooling beast." So you get to use a perempt.
Posted by: captcrisis | June 5, 2007 5:00 PM
For those that can find it, there's an excellent article discussing preemptories, their history, the arguments in favor of them, and the reasons for abolishing them, in 64 U. Chi. L. Rev. 809.
Posted by: Meph | June 5, 2007 6:02 PM
I typically use my strikes to get rid of those who already hate me and hate the court and want me to die. There's usually three on every panel, so that's that.
Posted by: Jason | June 6, 2007 12:47 PM
Peremptory challenges are used as much by those trying to keep WHITES off juries as BLACKS, etc. - and for identical reasons. A civil plaintiff wants black (and Hispanic) jurors because they tend to award money, while whites (and Asians) tend to side with the defense. In criminal cases, it's the reverse: whites are more likley to convict than blacks. Any attorney who's tried more than 2 cases, no matter his or her politics, knows this.
What amuses me is that the Batson case seems to be saying that "a black man has a right to be tried by a black jury," in so many roundabout ways. OK - so why wouldn't a white person be entitled to an all-white jury? Doubt Breyer will bite on that one.
Posted by: Anonymous Attorney | June 14, 2007 2:20 PM