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Wednesday, June 15, 2005

Peremptory Challenges

The U.S. Supreme Court decided two cases this Term that involved Batson challenges. Should you want to see the decisions themselves, here is the URL: and

The first case was MILLER-EL v. DRETKE [03-9659] and the second was JOHNSON v. CALIFORNIA [04-6964]

In Miller-El in a concurring opinion, Justice Breyer stated:

In Batson v. Kentucky, 476 U. S. 79 (1986), the Court adopted a burden-shifting rule designed to ferret out the unconstitutional use of race in jury selection. In his separate opinion, Justice Thurgood Marshall predicted that the Court's rule would not achieve its goal. The only way to "end the racial discrimination that peremptories inject into the jury-selection process," he concluded, was to "eliminat[e] peremptory challenges entirely." Id., at 102-103 (concurring opinion). Today's case reinforces Justice Marshall's concerns.

Without a focus on race, gender, or any other characteristic, I wonder whether elimination of peremptory challenges might not be an idea whose time has come. Consider the time and money spent on voir dire and multi-page questionaires and jury consultants, etc. Why wouldn't 12 members of the community for whom no legal obstacles were present be acceptable?

Is it conceivable that such a group might be predisposed toward either the prosecution or the defense? Of course, but jurors have shown time and again that they take their job very seriously and do in fact listen to the evidence and settle on a verdict to which all agree.

Do you think we should keep peremptory challenges? PLEASE comments are not to focus on race or other discriminatory elements but simply to address whether the peremptory should be retained.

Originally these challenges were allowed so that each side could strike a set number of venirepersons for any reason, undisclosed, whatsoever. Today Batson and other decisions have changed the rules for the use of peremptory challenges.

My point is simply that if you took away peremptory challenges neither side could use them and the jury would be composed of ordinary citizens. Might that not be a good idea?