This article was originally published in Georgia State Bar Journal (December 1996).
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").