Peremptory Challenges

During the jury selection process, attorneys may request that a potential juror be stricken for cause, e.g. the juror is related to the defendant. Attorneys also have a limited number of peremptory challenges, typically between 3 and 20 depending on the state and the seriousness of the charges, which are essentially accepted without question. In Batson v. Kentucky the Supreme Court ruled that peremptory challenges may not be based solely on race but it’s widely acknowledged that Batson has no teeth because attorneys can easily come up with pretexts–which need not rise to the level of causes–to strike.

Next month the Supreme Court will revisit peremptory challenges and race. I don’t have strong opinions on the issue, although a small number of peremptory challenges seem fine to me, if only to keep the system moving and reduce the time and resources spent on jury selection. One reason I don’t have strong opinions is that I don’t think peremptory challenges are as biased as a NYTimes article seems to suggests.The NYTimes article, for example, never mentions that defendants also get peremptory challenges!  A second more subtle reason is that diversity of the jury pool constrains the jury even when there are no minorities on the jury. Here, from an earlier post, I comment on the findings of The Impact of Jury Race in Criminal Trials:

What the authors discover is that all white juries are 16% more likely to convict black defendants than white defendants but the presence of just a single black person in the jury pool equalizes conviction rates by race. The effect is large and remarkably it occurs even when the black person is not picked for the jury. The latter may not seem possible but the authors develop an elegant model of voir dire that shows how using up a veto on a black member of the pool shifts the characteristics of remaining pool members from which the lawyers must pick; that is, a diverse jury pool can make for a more “ideologically” balanced jury even when the jury is not racially balanced.

Thus, diversity of the jury pool may be as important as diversity of the jury–in a way that’s fortunate since it’s easier to make the jury pool diverse (as we have done with required randomization) than the jury. Instead of eliminating peremptory challenges, I’d raise their cost. For example, suppose that both sides get 3 “free” peremptory challenges but if they wanted one more they would have to give two to the opposing side.

Addendum: Justice Kavanaugh has written in favor of restricting peremptory challenges.


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