We need to abolish the use of peremptory challenges in jury trials

Thursday, June 26, 2014

Good morning:

The SCOTUS prohibited the use of peremptory challenges, for which no reason must be given, to systematically exclude blacks from juries in criminal trials of black defendants in Batson v. Kentucky.

Batson permits the use of peremptory challenges to exclude blacks from juries so long as the party challenging the juror has a race neutral reason for asserting the challenge.

The Batson rule applies to all cases, whether criminal or civil, and it has been extended to prohibit the use of peremptory challenges to systematically exclude jurors based on gender or religious affiliation.

Unfortunately, a smart lawyer usually can come up with a race neutral “reason” to exclude a black juror, however unlikely, to pass judicial scrutiny.

The reverse side of that racial injustice is the acquittal by all white juries of guilty white defendants who murdered black victims.

We saw that in the Zimmerman trial.

Justice Thurgood Marshall realized games were being played in the aftermath of Batson. He wanted to solve the problem by getting rid of peremptory challenges.

Until recently I disagreed.

I quit practicing law ten years ago and it has taken me this long to finally change my mind and acknowledge that Justice Marshall was right.

We should not be excluding anyone from serving on a jury without a valid reason. By eliminating peremptory challenges, we would be requiring lawyers to present a convincing case for disqualifying a juror, convincing in the sense that opposing counsel would have an opportunity to rehabilitate a challenged juror.

This is how courts handle challenges for cause. Unless unopposed, each challenge for cause becomes a mini trial decided by the judge after each side gets an opportunity to question the challenged juror.

By forcing lawyers to support a challenge with an evidence based reason, instead of a hunch or a prejudice, we would do no more than subject them to the same standard to which we routinely hold police officers when they arrest a suspect. Such a rule would only improve our system of justice.

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12 Responses to We need to abolish the use of peremptory challenges in jury trials

  1. Malisha says:

    I believe it was in 1991 that the then Solicitor General of the US made the statement (with regard to the changes in the habeas corpus law) that it was constitutionally permissible to execute someone who had not committed the crime for which he was convicted and sentenced, so long as he had received “due process.” I then began to think about what process was actually DUE to a person who had not committed a particular crime. In my opinion, the only process that would be DUE to such a person would be the process that would lead to his NOT being put to death. So to me, the “truth of the contrapositive” would lead to the conclusion that what we get in criminal court is not “due process” if a person is innocent.

    All this to say that there has to be some understanding of what a jury does and who constitutes a jury. We ask a death sentence jury if each individual juror is opposed to the death penalty. WOW! What a “tell” that is! So if a juror is to be fair, he or she would have to agree that:

    1. If he “knows” a defendant is guilty but there is not firm EVIDENCE that the person is guilty, is it OK with him to acquit?

    2. If he “believes” that credible witnesses could very well be just good liars, is it OK with him to disregard their testimony?

    etc. etc. etc.

    A thousand questions like that come to mind. In a sense it is demoralizing because we really don’t know that any juror is a better person than, say, the judge, the defendant, the prosecutor or the defense lawyer. So often, prosecutorial misconduct skews the whole thing and there is frequently, obviously, also judicial bias involved.

  2. volgaknight says:

    I agree with the idea that I heard while listening to a discussion among some highly reputable legal scholars, and, that is, no peremptory challenges. They felt that a jury selected at random would have a much greater chance at delivering a fair verdict than would a jury picked. specifically, for their biases and prejudices.

    Lady Justice would cry a veritable torrent of tears knowing that “Justice” is not determined fairly, by facts and evidence, but, by which attorney can fool gullible jurors more.

    • Malisha says:

      I think we have to give up on justice. I haven’t seen Lady Justice; I have seen Lady Power.

    • As a result of my 30-year experience selecting jurors to serve on juries, I learned that most jurors are

      (1) unaware that they have biases and prejudices and

      (2) their biases and prejudices determine whether they believe or disbelieve witnesses and the importance they place on the evidence that is introduced during the trial.

      For example, I’ve seen friends and family members of cops state that they believe they can apply the presumption of innocence to a defendant “because it’s the law” and they can be be fair and impartial in determining the credibility of a police officer’s testimony.

      Then, if I ask them if they can imagine a situation where they might decide to believe a defendant whose testimony is contradicted by a police officer’s testimony, they will think for awhile and say “No.”

      If I ask them, “Why?” They will say “because police officers are trained observers whose job is to tell the truth.”

      They really are clueless and I believe it’s because they don’t do nuance. They desperately want to believe that we live in a predictable black and white world where authority figures like police are their friends. Black and minority defendants are thieves, robbers, rapists and murderers, unless they dress and act white. Thus, defendants and their lawyers are the bad guys.

      The horrendous economy and high unemployment have tarnished their views of authority figures, especially politicians, but they continue to trust prosecutors and cops but disbelieve defendants.

      Juries became increasingly conviction prone during the 80s, 90s and 00s because of the wars on crime and drugs, never doubting that violent crime was increasing when, in fact, it was decreasing.

      Huge disconnect between the real world and their ideas of the real world.

      • crazy1946 says:


        “The horrendous economy and high unemployment have tarnished their views of authority figures, especially politicians, but they continue to trust prosecutors and cops but disbelieve defendants.

        Juries became increasingly conviction prone during the 80s, 90s and 00s because of the wars on crime and drugs, never doubting that violent crime was increasing when, in fact, it was decreasing.

        Huge disconnect between the real world and their ideas of the real world.”

        Would it be realistic to question how much of this despondent attitude of the population in general could have arisen due to the negative words of the radio and television radical right wing talk show hosts? After being fed a daily dose of hate from these propagandists during their morning commute to work, is it any wonder that people developed a negative viewpoint toward the government and any effort that government attempted to do to help the common man of this country? Control of the masses requires political, and economic brainwashing to be truly effective, and boy has it ever been shown recently to have been effective when we have large groups of people who have been led to hate laws that will ultimately save their preverbal bacon… Perhaps at some time in the future the people of this nation will actually be able to see thru the cloud of hate and take a hard look and realize what they stand to lose if they don’t change course…

        In regards to juries, I realize it would be impossible, but IMO, if the jury deliberation were to be open to view by the public then racism and prejudice would be much easier to prevent by individual members of the jury…

        • bettykath says:

          I observed jury selection in an arson case. The lawyers asked about cops and firefighters that they were related to or that they knew. Of course they could be fair. All were excused.

          I was in the pool but not called. Good thing. I figured out that the arson was of the apartment building where my aunt lived. Fire house was about 1 block away. If they had been 2 blocks away, my aunt may have been a fatality. Strangely, none of the questions that were asked would have exposed my bias. I’d have had to self-identify, which I would have done. I was stressed out just thinking about how close my aunt was to dying in an intentionally set

    • I oppose random selection and I would permit challenges for cause.

      • volgaknight says:


        But, that would assume that your skill, or, insight, is better at determining fairness, cognitive abilities, and/or impartiality than random selection. However, (please don’t be offended) countless studies have shown that is, simply, not the norm.

        One such study, “Modeling the Effects of Peremptory Challenges on Jury Selection and Jury Verdicts,” from the University of Chicago Law School(Roger Ford) concluded:

        “The likely result is that verdicts from juries selected with peremptory challenges will be less reliable than verdicts of juries selected randomly.”

        Now, please, don’t misunderstand. Were I a defendant in a case, (and, you were my attorney), I would certainly prefer for you to have the right to challenge perspective jurors.

        But, I assume we’re talking about a general rule, applicable to all defense lawyers, and, prosecutors. And, if you think about all the biases and prejudices inherent in each member of that group, matched against all the variables inherent in prospective jurors (race, religion, education, prior experiences, associations, motives, ad infinitum) and, add to it the extremely limited amount of time available to analyze each perspective juror, statistically speaking, odds are that randomly selected jurors would be more apt to deliver justice than would a challenged jury.

        Finally, I realize that no system is perfect. But, from what I’ve witnessed over the past few decades in verdicts coming from challenged juries I’d take my chances with a “flipped coin” jury over some of those any day.

  3. crazy1946 says:

    I’ve been unable to find any updates on the hearing, has anyone else found anything about todays hearing yet?

  4. crazy1946 says:

    O/T: The latest on Detroit’s water service or should that be non-service problems..


  5. MKX says:

    It makes sense because, in a system that is inherently racist, a random sample is somewhat more likely to produce a just verdict than a biased one.

    And you kind of made this argument in the past by pointing out the prosecution, because they were used to picking a jury that goes along with the PD in order to put criminals away – the criminals assumed to be black, had no familiarity with picking a jury that would be objective in the Zimmerman trial.

    Would a random jury have found Zimmerman guilty?.

    Probably not, because a random sample of our society as a whole will show there is racism. However, a hard nut that would have stood fast to guilty could have produced a hung jury.

    Justice would have been one intelligent logical person pointing out in detail how stupid B37 was.

    I just got back from the gym and bumped my head on a hard object. Although it hurt about as much as a shot from a doctor, when I checked in the mirror, their was blood in my eye socket. Superficial scalp wound bleed profusely and look a lot uglier than they are.

    I guess I should have fell down prostrate and yelled HELP!!!!

    Or maybe shot, if I had a gun, all the non-white people for a rational fear of assault by deadly Smith Machine.

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