By Tyler Miller.
Peremptory challenges have struck out! Arizona is the first state in the nation to eliminate peremptory challenges to prospective jury members. A peremptory challenge is an objection to a proposed juror that can be based on any reason that is not discriminatory. In contrast, cause challenges require the party opposing the juror to establish by a preponderance of the evidence that the juror cannot render a fair and impartial verdict. As a result of the reform, cause challenges are now the only way to strike a juror.
Civil rights activists have applauded the Arizona Supreme Court’s decision as crucial to ensuring due process and equal protection. Specifically, it protects a defendant’s right to a jury of his or her peers and a citizen’s right to sit on a jury.
However, supporters of the Supreme Court’s decision fear the change will be fleeting. Republican legislators, backed by local prosecutors, are attempting to circumvent the reform by enacting House Bill 2413, which would restore peremptory challenges in criminal trials. The House Judiciary Committee advanced House Bill 2413 in a 6-4 vote in February, 2022.
Jacqueline Parker, a member of the Arizona House of Representatives, is a key sponsor of the bill. She is calling for a return to a status quo that had existed for decades. Other supporters of the bill argue that peremptory strikes are a valued last resort to remedy an improperly denied cause challenge. Judges can deny a cause challenge even though a juror reveals a bias in favor of one side or the other if the juror promises to set the bias aside and impartially follow the law. Many practitioner’s think that jurors who voice a clear bias will not be able to actually set aside their biases, making peremptory strikes especially useful.
Peremptories Over the Ages
For centuries, lawyers used peremptory strikes to eject jurors without providing any reason at all. Both prosecutors and defense attorneys routinely used peremptory challenges to discriminate on the basis of race, religion, gender, age, and other protected classes. Both sides believed certain demographics are more likely to be “prosecution” or “defense” leaning, especially in capital cases. Throughout history, the Court condoned this practice by articulating a doctrine of non-interference when faced with determining the scope of peremptory challenges.
In the landmark decision Batson v. Kentucky, the court held peremptory challenges could not be used to discriminate against jurors based on their race. A party that uses a peremptory challenge must give a race neutral reason for the challenge if the opponent can make a prima facie showing the strike was discriminatory. Then, it is up to the judge to determine if the party opposing the strike has shown “purposeful discrimination”. Under this subjective standard, the opponent of the challenge must show the party struck the jury member because of their race.
The problem is one of proof; it is difficult to show that an attorney has used race as a reason for striking a juror. Indeed, all Batson requires is that an attorney using a peremptory strike cite a single reason that is not discriminatory in order to protect their challenge. Attorney’s race-neutral justifications range from the trivial, such as disapproving of a prospective juror’s shoes, to the contradictory, such as striking two separate jurors for being too quiet and too loud.
As a result, many scholars have deemed Batson a failure. It has been widely studied and shown that Batson challenges don’t actually reduce discriminatory peremptory strikes. For example, a study of peremptory challenges used in capital cases in Philadelphia showed that prosecutors use the majority of their peremptory challenges to remove African American jurors and rarely use them to strike white jurors. On the other hand, defense attorneys routinely used their peremptory challenges to strike white jurors while infrequently using them to strike African American jurors. Consequently, challenging attorneys deny an impartial jury to the defendant and the ability to sit on the jury to the prospective jurors.
Washington’s New Moves
Washington was the first state to change the rule surrounding Batson in an attempt to end discriminatory strikes. In Washington, a party opposing a strike only needs to show that a reasonable observer could view race or ethnicity as a factor in the use of the peremptory strike in order to prevail. This objective standard is much easier to prove than the subjective inquiry required by Batson. Consequently, the number of successful peremptory strikes has decreased significantly.
In January of 2021, the Arizona Bar Association created a committee called the Batson Working Group which pushed to adopt Washington’s rule. However, when they petitioned the Arizona Court of Appeals, Judges Swann and McMurdie took their proposal a step further and petitioned for the abolishment of peremptory strikes.
Arizona Takes It a Step Farther
Judges Swann and McMurdie advanced three main arguments in their petition to the Arizona Supreme Court. First, they pointed out that peremptory strikes are not required by the Constitution. Next, they summarized peer reviewed research which concluded Batson had failed because peremptory strikes were still being used to discriminate based on race by both prosecutors and defense attorneys. Lastly, they noted that protecting a defendant’s due process right to a jury of their peers and a citizen’s equal protection right to sit on a jury improved public confidence in the criminal justice system.
The Arizona Supreme Court approved the petition with an order that contained no written opinion. Instead, they removed all peremptory strikes from the Arizona rules of civil and criminal procedure.
Let’s Wait and See
The Arizona legislature should hold off on eliminating this crucial reform. States are supposed to be laboratories capable of experimenting with new legal regimes to see if they are workable. Only time will tell if eliminating peremptory challenges effectively enforces due process and equal protection. Thus, the legislature should pump the breaks and allow legal practitioners and scholars to assess whether eliminating peremptory strikes has a positive or negative impact. Maybe after a period of adequate data collection, the legislature will be in a better position to pass meaningful legislation rather than simply reacting to an upset with the status quo.