This article was originally published in
Georgia State Bar Journal (December 1996).
THE PEREMPTORY CHALLENGE:
A LANDMARK WORTH
PRESERVING
By Bobby Lee Cook and Michael
A. Sullivan 1
Razing landmarks usually provokes justifiable
outrage. So should recent proposals to take a
wrecking ball to an enduring landmark of the judicial
process--peremptory challenges. 2
Betraying Our Heritage?
Over two thousand years, peremptory challenges
have become been a mainstay of our common law
tradition. Roman law provided for peremptory challenges
by statute as early as 104 B.C. 3 Centuries later,
Blackstone memorialized the peremptory challenge
as "a provision full of that tenderness and humanity
to prisoners, for which the English laws are justly
famous." 4
In the United States, Congress in 1790
embraced this tradition in capital cases. 5 Since
then, peremptory challenges have become firmly
rooted in federal and state jury trials, both
civil and criminal.
Although critics now deem this institution
unnecessary, the Supreme Court in 1893 described
the peremptory challenge as "one of the most important
rights secured to the accused." 6 More than once
the Court has declared it per se, reversible error
to impair the use of peremptory challenges, 7
even though the Constitution does not require
them. 8
Why Peremptories?
Just as in Blackstone's time, potential
jurors differ in their biases. As human beings,
they also differ in their willingness and ability
to be responsible and fair. It is fantasy to believe
that, without peremptories, our standards for
eliminating jurors for "cause" will keep the most
biased, the least responsible, and the least fair
persons from jury service. Even Justice Scalia
has observed that "there really is no substitute
for the peremptory. Voir dire . . . cannot fill
the gap. The biases that go along with group characteristics
tend to be biases that the juror himself does
not perceive, so that it is no use asking about
them." 9
Peremptories provide a safety net. They
allow each side to exclude a few potential jurors
who, based on "sudden impressions," 10 facial
expressions, body language, intuition, and the
like, one side perceives are probably the most
biased in favor of the other side. The remaining
jurors, judged by the parties themselves as likely
the least biased, decide the case. The parties'
involvement is critical to the appearance of fairness,
especially in criminal cases. 11
Prosecutors, for example, sometimes strike
potential jurors whose family members have had
negative experiences with law enforcement, even
if the jurors do not admit actual bias. Because
each jury venire is unique, the prosecutor may
not have enough peremptory challenges to strike
all such prospective jurors, but some strikes
are preferable to none. In addition, peremptories
help solve the problem that voir dire creates--that
the "bare questioning [of a juror's] indifference
may sometimes provoke a resentment." 12 With the "extremes" 13
of apparent partiality eliminated, both the appearance
and reality of fairness are served.
The Supreme Court has pointed out still
other virtues of peremptory challenges: The function
of the challenge is not only to eliminate extremes
of partiality on both sides, but to assure the
parties that the jurors before whom they try the
case will decide on the basis of the evidence
placed before them, and not otherwise. In this
way, the peremptory satisfies the rule that "to
perform its high function in the best way 'justice
must satisfy the appearance of justice.' " 14
Unmasking the Attacks on Peremptories:
A Double Standard?
Critics of peremptories ask us to use less
care in jury selection than in our everyday affairs.
Consider how we routinely make other decisions
that are no more demanding than whether to take
away life or liberty. In hiring employees or child
care providers, for example, would we ever agree
to hire the first candidate who met our minimum
objective standards? Or would we wish to interview
several candidates, get a sense of each one as
a person, and trust our gut feelings about potential
problems that may nonetheless be difficult to
articulate?
In many contexts, we regularly make these
decisions based not on impermissible discrimination,
but on objective criteria and our subjective sense
of whether this person will be responsible and
fair. Eliminating or restricting that same process
in jury selection would create a double standard
that would undercut confidence in, and trivialize,
the fairness of the judicial system.
Why Suddenly Restrict or Abolish This Institution?
What has changed over two millennia to
warrant these recent attacks on peremptories?
Human nature certainly has not, and peremptories
remain essential to fulfill all of their historical
purposes.
The only apparent change is the Supreme
Court's Batson 15 decision, which banned race
discrimination by prosecutors in peremptory strikes.
After Batson, Talladega County, Alabama, for example,
would find it difficult to continue to exclude
all black citizens from jury service, both through
selection of the venire and use of peremptory
strikes. 16 The Batson doctrine has now spread
to cover civil litigants, criminal defendants,
and classifications other than race. 17 There
is no reason, however, to abandon the peremptory
simply because of the Batson requirements, and
rules for ensuring harmony between the peremptory
and Batson have already been formulated. 18
Other rationales for limiting peremptories
are just as elusive and flawed. There is no evidence
of an increase in misuse of peremptories; with
scrutiny under Batson, the opposite is more likely.
Nor is there any evidence, statistical or otherwise,
that parties enjoy too many peremptory strikes,
or that fewer strikes would be adequate to eliminate
biased jurors. Every trial lawyer has seen the
reverse prove true.
Concerns for infringing the rights of stricken
jurors by use of "stereotypes" often overlook
that the parties have the most at stake in a trial,
and few if any potential jurors are clamoring
to serve. 19 Those concerns also ignore the true
incentive of the lawyer in using peremptory strikes.
The attorney risks losing if he does not look
beyond stereotypes for actual signs of bias, unfairness,
or irresponsibility among potential jurors.
When critics complain that peremptories
interfere with having a fair cross-section of
the community represented on the jury, they ignore
that the Sixth Amendment's fair cross-section
requirement concerns the venire from which the
jury is selected, and not the petit jury itself.
20 Most telling, however, the critics say little,
if anything, about meaningful steps to broaden
the venire. Do these critics, for example, also
call for canvassing homeless shelters to create
a more representative venire from which the jury
may be drawn?
Longer Voir Dire, or More Biased Juries?
The critics also must recognize that eliminating
the screening function of peremptories would have
a heavy cost. Lengthier and more probing voir
dire would be necessary to ferret out actual bias
among potential jurors, followed by legal argument
over whether these potential jurors should be
excused for "cause."
The more likely outcome--impliedly preferred by
those who claim eliminating peremptories will "speed up" trials--is that this screening of potentially
biased or unfair jurors will go undone. Questionable candidates with personal
agendas may give "correct" answers to voir dire questions, escape challenge
for "cause," and take seats in the jury box to sit in judgment. Peremptories
may not have excluded all such persons, but at least would have given the parties
a chance to try. With peremptories eliminated or reduced, the trial process
would become less reliable and less fair, both in appearance and in fact.
As those prosecutors, criminal defense lawyers, and civil lawyers who actually
try cases usually agree, 21 the peremptory challenge is essential to protecting
the rights of litigants. It is a landmark worth preserving.
Endnotes
1 Bobby Lee Cook of Summerville, Georgia
practices with Cook & Connelly. Michael A.
Sullivan of Atlanta, Georgia practices with Finch,
McCranie, Brown, Hendrix, Sullivan & Wisebram,
LLP.
2 Blackstone described peremptories as
challenges "to a certain number of jurors, without
showing any cause at all." 4 William Blackstone,
Commentaries 353 (1st ed. 1803).
3 Jennifer Urbanski, Georgia v. McCollum:
Protecting Jurors From Race-Based Peremptory Challenges
But Forcing Criminal Defendants to Risk Biased
Juries , 24 Pac. L.J. 1887, 1898 (1993) (discussing
Lex Servilia, which permitted 50 peremptory strikes
each for prosecution and defense).
4 William Blackstone, supra, at 353.
5 Brian J. Serr & Mark Maney, Racism,
Peremptory Challenges, and the Democratic Jury:
The Jurisprudence of a Delicate Balance , 79 J.
Crim. L. & Criminology 1, 11 (1988) (discussing
1 Stat. 119 (1790)).
6 Pointer v. United States , 151
U.S. 396, 408 (1893). The Court continued that "[a]ny
system for the empanelling of a jury that presents
or embarrasses the full, unrestricted exercise
by the accused of that right, must be condemned." Id.
7 See, e.g., Lewis v. United States ,
146 U.S. 370, 376 (1892) ("The right of challenge
comes from the common law with the trial by jury
itself, and has always been held essential to
the fairness of trial by jury"); Harrison
v. United States , 163 U.S. 140, 141-42 (1895).
8 Stilson v. United States , 250
U.S. 583, 586 (1913); Swain v. Alabama ,
380 U.S. 202, 219 (1965), overruled in part , Batson
v. Kentucky , 476 U.S. 79 (1986).
9 J.E.B. v. Alabama ex rel. T.B. ,
114 S.Ct. 1419, 1438-39 (1994) (Scalia, J., dissenting).
10 4 William Blackstone, supra, at 353.
11 Blackstone wrote "how necessary it is,
that a prisoner . . . should have a good opinion
of his jury, the want of which might totally disconcert
him; the law wills not that he should be tried
by any one man against whom he has conceived a
prejudice, even without being able to assign a
reason for such his dislike." Id. at 353.
12 4 William Blackstone, supra, at 353.
13 Holland v. Illinois , 493 U.S.
474, 484 (1990).
14 Swain v. Alabama , 380 U.S.
202, 219 (1965) (quoting In re Murchison ,
349 U.S. 133, 136 (1955)), overruled in part,
Batson v. Kentucky , 476 U.S. 79 (1986).
15 Batson v. Kentucky , 476 U.S.
79 (1986).
16 Evidence of this practice was the subject
of Swain , supra.
17 Edmonson v. Leesville Concrete Co. ,
500 U.S. 614, 620-21 (1991) (private litigants); Georgia
v. McCollum , 505 U.S. 42, 49-55 (1992) (criminal
defendants); J.E.B. v. Alabama ex rel. T.B. ,
114 S.Ct. 1419, 1422 (1994) (gender discrimination).
18 See, e.g., Brian A. Howie, A
Remedy Without a Wrong: J.E.B. and the Extension
of Batson to Sex-Based Peremptory Challenges ,
52 Wash. & Lee L. Rev. 1725, 1766-68 & n.
248 (1995).
19 One trial lawyer has observed "the reality
that some of those anxious for jury service resemble
vigilantes more than magistrates." Raymond Brown,
Peremptory Challenges As a Shield for the Pariah
, 31 Am. Crim. L. Rev. 1203, 1205 & n. 8 (1994).
20 Holland v. Illinois , 493 U.S.
474, 480 (1990).
21 See Raymond Brown, supra, 31 Am. Crim.
L. Rev. at 1203 ("Criminal defense lawyers, prosecutors,
and civil lawyers for both plaintiff and defense
were unanimous in their opposition to losing the
peremptory challenge because it is necessary to
effectively represent their clients").
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