Arizona Shuts Down Peremptory Challenges: Jury Trials Gettin’ Crazy!Arizona is the first state to eliminate peremptory challenges in all criminal and civil jury trials. The new law followed a petition from a group of appellate judges and was approved by the Arizona Supreme Court. The law took effect January 1, 2022.
Even before becoming a lawyer, I’ve wanted to serve on a jury – not just to perform my civic duty, but to see how the mysterious dynamics of a jury would work.
Since becoming an attorney, I’ve wanted even more to serve as a juror, not just to help me gain trial experience. I also wanted to see how strangers would look at the evidence, view witnesses, and wrestle with and resolve a dispute.
Alas, I was summoned but never picked (but I came close twice). Apparently most litigants prefer not to have attorneys on their jury and routinely give them the heave ho.
This “lawyers-not-welcome-as-jurors” attitude may now be a thing of the past.
What is a peremptory challenge?
Peremptory challenges allow attorneys after questioning to strike jurors without explanation. That’s often how lawyers are dismissed from the jury. Challenges for cause differ from peremptory challenges. A challenge for cause is used to get rid of any jurors who can’t consider the evidence fairly or who will be influenced by admitted biases.
The end of peremptory challenges
Peremptory challenges have been around for a few centuries—a hold-over from British law—but they have always drawn criticism. Critics point to evidence of race-based discrimination, which shows that people of color are disproportionately often eliminated from jury pools. Research has generally supported this criticism.
A study analyzing trials in North Carolina over several decades found that black jurors were more than twice as likely to be excluded from jury pools than white jurors. Responding to this criticism, restrictions have been placed on peremptory challenges to prevent race-based discrimination. A landmark United States Supreme Court case in 1986, Batson v. Kentucky, held that peremptory challenges in criminal cases cannot be based solely on a prospective juror’s race.
Because Batson is so difficult to enforce, however, peremptory challenges are rarely disputed. For example, since the Batson decision in 1986, only eight peremptory challenges have been reversed in Arizona. Thus, it is easy to see why ending peremptory challenges will bring a dramatic change.
The pros and cons of eliminating peremptory challenges
Ending peremptory challenges has prominent supporters, but not everyone welcomes the rule change. Proponents of the change argue that peremptory challenges are simply too often misused, that jury selection has become a chess game between the trial lawyers.
Meanwhile, some lawyers see peremptory challenges as a constitutional right and an important tool to identify biased jurors. They believe the peremptory challenge system exists to overcome subtle obstacles to a fair trial, as it is very difficult to prove that a juror is biased through direct questions and answers. Sometimes all they have to rely on is a hunch or an impression that a given prospective juror is prejudiced for or against one side. After all, few jurors readily admit they cannot be fair, particularly in a room full of strangers.
Trial lawyers’ impressions are at times based on unspoken cues about a prospective juror’s demeanor that show in the wording of their answer to a question, a noticeable pause, a person’s body language, or facial expression. Using this type of subjective information to make an argument in a challenge for cause, however, is virtually impossible. Indeed, striking a prospective juror for cause requires an explicit statement from the juror that clearly proves their impartiality.
A national trend?
Arizona is now a curious experiment for the rest of the states. Lawmakers and judges will keep a keen eye on Arizona and study the consequences for criminal and civil trials over the next months and years. If the change actually produces more diverse and representative jury pools, it is likely other states will want to follow Arizona’s example.
What does the new law mean for future trials?
Without peremptory challenges, jury trials are now much less predictable. Potential outliers who would have been struck from serving under the former system are now serving as jurors. Yes, that means even lawyers have a shot at serving on a jury, and some already have.
Lawsuits are not always the answer to settling disputes, but when a lawsuit is needed, we go to court and fight for our clients. As an experienced trial team, we understand how the end of peremptory challenges have changed jury trials in Arizona and what must be done to enforce our clients’ rights. We can help you, too.
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