Arizona Eliminating Peremptory Challenges of Jurors
The Supreme Court of Arizona recently ruled that it will eliminate peremptory challenges of prospective jurors in Arizona, starting January 1, 2022. This practice formerly allowed lawyers during a trial to remove prospective jurors from a case for any reason. Arizona will be the first state to remove peremptory challenges entirely from jury selection for criminal and civil trials.
The ruling would amend Arizona Rules of Criminal Procedure. 184. and 18.5 and Rule 47 (e) of the Rules of Civil Procedure. It is a major change in the criminal justice process in the state, and, if it does, indeed, go into effect in 2022, could affect changes in the jury selection process in other states.
Why Is This Change Being Made?
For years, many have argued against attorneys’ ability to challenge prospective jurors for any reason, or for no good reason at all. Following the current rule, which will expire on January 1, 2022, both prosecutors and criminal defense attorneys are allowed to challenge a juror without citing a reason for doing so. Under the recommendation of two judges from the Arizona State Court of Appeals, Peter Swann and Paul McMurdie, the ruling is being changed with the hopes of creating juries that better reflect the racial and ethnic backgrounds of their communities.
Lawyers have used peremptory challenges to create juries that they feel will be more favorable to their arguments in trials. The judges mentioned above noted that the peremptory challenges rule did not go into effect until after the Civil War, after black Americans were given the right to serve on juries.
What Does the U.S. Supreme Court Say About Peremptory Challenges?
In the 1986 U.S. Supreme Court case of Batson v. Kentucky, a black man was on trial for burglary and receipt of stolen goods. The prosecutor in that case used his peremptory challenges to eliminate all four prospective black jurors from serving on the jury. Batson was ultimately convicted by a jury that was not necessarily comprised of his peers.
The Supreme Court ruled that the prosecutor’s actions denied Batson his right to a fair trial and to equal treatment under the law. Since that ruling, any peremptory challenge made to a minority juror must be backed up by the attorney making the challenge, using a non-racial reason for their challenge. But, the Arizona judges authoring this amendment argued, there have still been far fewer minorities serving on juries. According to them, race continues to play a major role in the exercise of peremptory challenges.
What Does the Data Show?
In Arizona’s criminal cases, the proportion of white jurors serving on a jury vary only three percent from their representation in the population of their communities. Black jurors in Arizona, however, are underrepresented on juries by 16 percent. Hispanics are underrepresented by 21 percent. Native Americans are underrepresented on juries by 51 percent. The disparities are even more pronounced in Arizona’s civil cases.
What Do Arizona’s Attorneys Think?
Arizona’s prosecutors generally oppose eliminating peremptory challenges of jurors. They say that the peremptory challenge gives them a chance to strike jurors whom they believe hold some sort of bias. They note that people won’t admit to not being fair or biased when asked, but certain questions posed in peremptory challenges can find these biases and help to weed out biased jurors.
Public defenders and many criminal defense attorneys, on the other hand, applaud the change. They note that peremptory challenges have long been used as a tool for discrimination.
Arizona’s judges are mixed in their opinions of the new ruling. Nine out of 10 Yavapai County Superior Court judges support eliminating peremptory challenges. The majority of judges in Mohave County, on the other hand, are opposed to the change.