“Abolish the peremptory challenge”

by Walter Olson on January 23, 2014

It’s not a new idea for reform — I suggested it as my contribution to a book fifteen years ago, it had been kicked around for decades already at that point, England has done it, and we’ve discussed it here. But the route of making progress, as befits our age of anti-discrimination, has been the piecemeal extension of so-called Batson challenges in which it is argued that lawyers used their peremptories to exclude a protected demographic group. The editorialists of the L.A. Times discuss the latest, a Ninth Circuit ruling extending the list of forbidden categories to include sexual orientation.

{ 4 comments }

1 Anonymous Attorney 01.23.14 at 1:38 pm

Like so many other reforms that would make sense, this one won’t happen because lawyers like peremptory challenges. Plaintiffs’ attorneys, civil defense attorneys, prosecutors, criminal defenders — all of them. They would all howl.

2 kimsch 01.23.14 at 3:44 pm

If they keep adding people/groups that are added to “protected” lists, then everyone will be “protected”. Then we come to conflicts between “protected” people. Which protection trumps which?

3 Malcolm Smith 01.24.14 at 2:03 am

Exactly who is being “protected”? The article talked about discriminating “against” homosexuals. However, since jury service is an impost on the citizen, not a benefit, I would have thought it was the heterosexuals in the jury pool who were being discriminated against.
In any case, I agree that peremptory challenges make no sense. In my country (Australia) the only information that lawyers have, apart from what they see in front of them, is the information on the electoral roll from which the names were take ie name, address, age, and occupation (which, in my case, would be “student”, because that was my occupation when I got the vote 43 years ago).
Then again, I’ve always been convinced that, in the US, the lunatics are in charge of the asylum. There is little on this blog to disabuse me of that view.

4 Ron Miller 01.24.14 at 4:29 pm

I’m not sure all lawyers would howl. Litigation is a zero sum game. In any given case, having them helps or hurts me. I think they help me because I fancy myself as good at making the choices. Most lawyers do which is why there would be some resistance.

The reality is that there are some jurors that you can tell are going to be against you for one reason or another. You just don’t think that juror is going to give you a fair shake. You can’t prove it. You just know it – or think you know it – when you see it. I see jurors I’m pretty sure are predisposed against me and predisposed for me. When we get rid of these folks – on both sides – we probably have a more level playing field which is why we have them in the first place. Getting rid of those outliers makes for a more fair jury.

Often I see people that I would love to have and hate to have in voir dire. The jury rarely includes any of those people. And that is a good thing.

(All of that said, I should read the arguments on both sides because I’ve never looked at it before.)

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