The Peremptory Challenge: An Idea Whose Time is Gone?

Morris B. Hoffman wrote a fascinating op-ed for the March 7, 2006 New York Times. In it he persuasively argues that the peremptory challenge should be abolished. Hoffman is not alone in that position: Brandeis University Government Professor Jeffrey Abramson, author of the hugely successful introduction to jury studies "We, the Jury," concurs.

WHAT IS A PEREMPTORY CHALLENGE?

The peremptory challenge is the primary tool for jury selection that lawyers have. Generally, we do not "select" jurors -- we de-select them. The first twelve people in the box will be the jury unless the Prosecution or the Defendant strikes one - either through a peremptory challenge or "for cause."

A "for cause" strike is exercised when a juror is disqualified as a matter of law. Any person who is too young, not a citizen, is a felon, is insane, or fits a small number of other disqualifying points, is disqualified as a matter of law and cannot serve. Primary among these would be any juror who is so biased against one party or the other that they could not put that bias aside and judge the case on the merits.

Any person who is legally qualified to serve may be removed through a peremptory challenge. Both sides have a number of peremptories to exercise (in Texas, each side has ten in District Court (felony cases), and three in County Court (misdemeanor cases tried before 6 member jury). A lawyer may exercise a peremptory strike for any reason other than gender and race.

Accordingly, peremptories may be exercised arbitrarily; they may not be exercised discriminatorily. This is a distinction without a difference. A lawyer can say that he didn't like the juror's wardrobe, attitude, vocal inflections, eye contact, lack of eye contact, etc.; so long as he doesn't mention race, there is no problem.

I have seen jurors dismissed for having the same hair style as the defendant -- the theory being that the defendant and the juror, both African-American males with the same hair style, will somehow bond due to -- (not their race!!! definitely not their race!!!) -- their hairstyle.

To date, I know of no example of a juror being dismissed for having the same blood type as the accused. I cannot, however, monitor every case.

Recently a Texas capital murder case concerning Thomas J. Miller El, the Supreme Court reversed, granting Mr. Miller El a new trial, due to the State's use of racially discriminatory peremptory challenged. However, every lawyer, and most people who haven't gone to law school, know that the prosecutor's sin was not in using race to exercise her peremptory challenges. It was in getting caught: i.e., in being artless enough that her subterfuges could be seen through.

After all, she didn't once mention blood type!

The peremptory challenge serves important purposes, in allowing lawyers to remove jurors who they believe, but cannot prove, are overly biased against them. Once the peremptory challenge is subverted into a tool of jury stacking, it becomes a perversion of its own principle: a tool to micromanage the biases of the resultant jury.

It would appear that Jeff Abramson has it right: challenges for cause, perhaps, should be more liberally granted (so that those borderline jurors presently removed by peremptory challenges do not sit on trials), and the peremptory challenge eliminated or their number sharply reduced. This will put an end to the jury stacking that is presently an accepted part of our justice system, and return lawyers back to the task of presenting strong cases that a jury randomly selected from average citizens will find believable.