PHOENIX — Arizona is about to become the first state in the nation to eliminate the ability of attorneys to strike prospective jurors based on what may only be hunches, a practice that often ends up culling minorities.
The state Supreme Court will announce this week approval of a new rule eliminating what are called “peremptory challenges.” This is the ability of attorneys in civil and criminal trials to disqualify potential jurors without citing any reason at all.
Instead, as of Jan. 1, lawyers will need some specific reason to strike someone from the jury pool, like an admitted bias or their personal knowledge of the parties or the dispute.
The move comes over the objections from several prosecutors who contend, as does Maricopa County Attorney Allister Adel, it “will ultimately lead to trials that are less fair for all sides.”
Instead, the Supreme Court justices accepted the recommendation of two judges from the state Court of Appeals, Peter Swann and Paul McMurdie, who argued that the move will go a long way to eliminating persistent problems with juries that often do not reflect the racial and ethnic backgrounds of their communities.
“The primary tool by which this discrimination is practiced is the peremptory strike,” they wrote in their petition.
No one has disputed that lawyers have used peremptory challenges to fashion a jury they think will be more favorable to their arguments.
But the appellate judges noted this is not anything guaranteed in the U.S. Constitution. In fact, they said, most states did not allow for it until after the Civil War.
“A cynical observer might note that the power came into being in the years after black Americans obtained the right to serve on juries,” they wrote.
The problem was addressed — or at least supposed to be addressed — by the U.S. Supreme Court in 1986 in the case of Batson v. Kentucky.
In that case, a Black man was on trial charged with burglary and receipt of stolen goods.
The prosecutor used his peremptory challenges to eliminate all four Black prospective jurors. Batson was then convicted.
In a 7-2 ruling, the nation’s high court said the prosecutor’s actions unconstitutionally denied Batson his right to a fair trial and his right to equal treatment under the law.
Since then, any time there has been a peremptory challenge to a minority juror, the attorney needs to articulate a non-racial reason for his or her decision. But Swann and McMurdie said the data they have seen convinces them that it still means fewer minorities on juries, even with lawyers citing what they claim is a legitimate reason.
“There can be no doubt that race continues to play a major role in the exercise of peremptories decades after Batson was decided,” they wrote.
There is evidence of that in Arizona.
In criminal cases here, the proportion of white jurors seated varied only 3% from their representation in the population, a study compiled by the Administrative Office of the Courts shows. By contrast, Black jurors were underrepresented by 16%.
And it was worse for Hispanics who were underrepresented on juries 21% of the time, with a 51% gap for Native Americans.
The disparities were even more pronounced in civil cases.
But much of the opposition comes from prosecutors.
The peremptory challenge gives prosecutors a chance to strike jurors who they believe, based on their answers to questions asked during the screen process, hold some bias, Adel said.
“Expecting a prospective juror to candidly admit that they cannot be fair is not realistic,” wrote Kenneth Vick, her chief deputy, on her behalf.
“Most people do not think of themselves as unfair or biased,” he continued. “Others, even if they recognize a bias in themselves, likely do not want to express their true opinions on sensitive topics like race, their views on the law, or their beliefs in the equity or inequity of the legal system in front of a group of strangers.”
That view was echoed by Elizabeth Burton Ortiz, executive director of the Arizona Prosecuting Attorneys’ Advisory Council.
“What reasonable minded person would want to publicly admit on the record, in front of a group of stranger that they did not even judge themselves to be fair?” she wrote.
And Assistant Attorney General Nicholas Klingerman, writing for Mark Brnovich, his boss, argued that peremptory challenges help ensure that those who are unfit do not serve on juries and eliminates the need for a lawyer to find some “challenge for cause.”
Instead, Brnovich wants more study of the matter.
But Mikel Steinfeld, a Maricopa County public defender, said the move is long overdue.
“There is near-uniform agreement that peremptory strikes have long been a tool for discrimination,” he wrote. He cited a 2005 survey which found that every lawyer interviewed considered race and gender when picking a jury.
Among judges, the sentiment is more divided.
Nine out of the 10 Yavapai County Superior Court judges submitted comments in support of the change, concluding that the peremptory process is misued.
But a majority of judges in Mohave County are opposed. Kip Anderson, administrator of the court, said peremptory challenges are a tool not just for prosecutors but also defendants whose attorneys may sense bias but not be able to articulate it in challenging someone for cause.
“Characteristics such as facial expressions, body language, tone of voice, dress and grooming are not verbally expressed by prospective jurors and are rarely reflected in the record,” Anderson wrote. “However, they often indicate that these jurors would not favor the defendant.”
And even the Arizona Black Bar, while taking no formal position, is concerned that complete abolition of peremptory challenges “could have unintended and undesirable consequences.”
Not all the opposition to the change is coming from prosecutors. Attorneys defending doctors and hospitals in medical malpractice cases involving millions of dollars also want to keep their ability to strike jurors without having to articulate a reason.
“These cases can be highly emotional,” they wrote. “It is especially important to have the peremptory challenge safety valve for ensuring that the jurors who are seated in these cases are not unfairly biased for or against one side or the other.”
But McMurdie and Swann say there’s another — and potentially more practical — reason, aside from racial and ethnic balance, to eliminate peremptory challenges.
In capital cases, each side now is allowed 10 peremptory challenges. The figure is six per side in other superior court criminal cases and two in lower court.
For civil trials, each side gets four such challenges.
Allowing these strikes means that more people have to be called for jury duty than actually will be needed. That, they said means that “a substantial percentage of jurors who make the effort to appear for jury service are merely fodder for arbitrary hunch-based strikes.”
The new rule still allows attorneys to challenge a prospective juror “for cause.” But it will require the lawyer to prove “by a preponderance of the evidence that the juror cannot render a fair and impartial verdict.”