Abolish the peremptory challenge?

A recent piece in this august newspaper proposed abolishing the peremptory challenge to prospective jurors.

The authors' goal is worthy. In Batson v. Kentucky, the Supreme Court held that a prosecutor may not base a peremptory challenge to a Black prospective juror on a belief that Black people will view the case differently from members of other racial groups. Batson has since been extended to defense counsel in criminal cases and to all counsel in civil cases. And the rule is now applied to all racial and ethnic groups, as well as women and gays.

The problem, as the authors stress, is the difficulty in proving the true motivations of the attorney exercising the challenge. Today, no attorney with any sense will announce, "I exercise a peremptory challenge against Mr. Smith, because he is Black, and I believe a Black juror will be too sympathetic to a Black defendant." Instead, the attorney might conceal this belief behind a cover story, such as "I exercise a peremptory challenge against Mr. Smith, because his cousin-in-law was once falsely accused of committing the same crime as the defendant currently on trial." There are ways of flushing out the true reason, e.g., by showing that a white juror had the same issue, but went unchallenged by the prosecutor. But there are also ways of covering up the cover, e.g., by challenging the white juror too.

The authors quote a prosecutor: "Any attorney worth his salt can make up something to get over a Batson challenge. And, literally, [prosecutors] do make it up." I don't disagree.

The only solution that will work, according to the authors, is to abolish the peremptory challenge. That would still leave the challenge for cause intact, and that will be sufficient to get rid of truly biased jurors and ensure a fair trial for both sides. Justice Thurgood Marshall proposed exactly that, and several other judges have since endorsed his proposal.

Whoa! Not so fast, guys. The authors say nothing about the possible cost of ending the peremptory challenge. And their analysis seems divorced from the reality of trying a case to lay people we know almost nothing about.

Back when I was law professing, I wrangled some junkets teaching comparative law in foreign climes. While there, I snooped around their legal systems, to get a flavor of how they did things.

I once taught at a university in Istanbul. One day, a student took me to watch a criminal trial, and we ended up having lunch with the presiding judge.

He was curious about our jury trials. The whole idea struck him as quite peculiar. In Turkey, as in every other European country following the "inquisitorial" system of trying cases (along with their former colonies in Africa, South America and Asia), juries are rarely used.

The judge asked, "Tell me, Professor, in America do you trust untrained lay people to pilot your commercial airplanes? No? Then why do you trust them to decide who should go to prison, and who should be deprived of their fortunes?"

Ever the patriot, I explained to him the Anglo-American concern about powerful governments abusing their powers, and the need to have a "check" on prosecutors and judges who might work in cahoots with them. He responded, "We've had our own share of tyrants. But those days are pretty much gone, and we're not willing to risk mistaken verdicts by people with no training or experience in these matters -- which might be very complex. Judges have trouble understanding DNA evidence and the inner workings of computer software, but at least we're well educated and have learned about these issues in prior trials."

"You think jurors make more mistakes than judges?"

"Well, let me put it this way. If I were innocent of a crime, I'd prefer to be tried in a European court. But if I were guilty, I'd rather be tried in America."

I pointed out that we don't just turn jurors loose to do whatever they like. We have methods of hemming them in -- or taking certain issues or even the whole case away from them. Motions in limine and rules of evidence restrict what they can hear. Jury instructions limit what jurors may consider, and tell them the law they must apply. Preliminary hearings and motions for summary judgment or adjudication can knock out certain charges or claims, or even end the case before the trial starts. Motions for new trial and JNOV can undo what a jury did.

"Yes," he conceded, "but that still leaves quite a few cases where there is no legal ground for taking the case from the jury. The parties then face a group of lay people who might not understand jury instructions on the law, or be able to obey a judge's order to 'disregard' certain evidence."

I replied, "we try to get rid of those people at the outset, 'for cause', by showing the judge that they are in fact unable or unwilling to do what the judge tells them to do."

"Does that work?"

I had to admit, "Sometimes, but often not. Potential jurors don't always tell the truth on voir dire. And often their answers will be fuzzy enough that the other lawyer or the judge can "rehabilitate" them with "But you will try to apply the law, right?"

Then I brought up the clincher. "Look, Your Honor, we allow a peremptory challenge as a last-resort back-up, when we can't prove bias or incompetence, but we know it's there. We get a limited number of those challenges to use as we like."

"What do you mean by 'you know it's there'?"

I replied, "We -- me and my client -- don't know for sure. But we feel it's there. Maybe we can't articulate why. Sometimes the juror gave my client a funny look when asked a certain question. Maybe he smiled at opposing counsel, but not at me. Or maybe he learned about science by listening to politicians. We know so little about these people that we have no choice but to go with these tidbits and our gut instincts."

"And your American law allows you to control who's on your jury based on feelings?"

This got to the guts of the matter.

"Yes, Judge, it does. Here's why. Prior to trial by a judge, the attorneys can't voir dire the judge as to her attitudes and possible bias. A party may challenge a judge for cause only if there's independent evidence that a judge is biased in the case. While some states (such as California) allow a peremptory challenge to a judge (no more than one per case), that right is seldom exercised.

"So why do we treat a juror different from a judge?

"Because the judge is pretty much a known quantity. He or she is a trained lawyer, has been selected (through election or appointment) by some process that has reviewed the candidate's qualifications, and has had experience hearing evidence and finding facts in other cases. And if you want to see how she operates, you may inspect her at any time: just walk into her courtroom and see how she handles another case. She will also have a reputation in the legal community that you can check out. All these things give us confidence in the judge that we do not have in jurors."

He asked, "Of course you require jurors have college degrees, and some experience with science or business."

"No we don't," I replied. "Not even a high school diploma, and no experience required. In fact, the jurors are a bunch of amateurs that neither the lawyers nor the client have ever seen before -- 'twelve strangers pulled in off the street.' We tell our clients before trial, 'Going to jury trial is a crap shoot. You never know whether you'll get a dozen sharp people who care, or a bunch of know-nothings who have trouble keeping awake or who are easily taken in by emotional, misleading arguments. Or some mix of the two."

I added, "Entrusting your client's freedom or fortune to such people can be a frightening experience, for both you and your client. Who are these people? Can they be fair to my side? Do they respect the law enough to follow the judge's instructions? Are they intelligent enough to understand the evidence, my arguments, and the judge's instructions? A lawyer should have some power to find out about these people and remove those who do not seem qualified, if the parties are to have any confidence a jury's verdict. That confidence is important -- it's the only thing holding our justice system together.

"The challenge for cause helps, but it might not be enough. To prove bias well enough for a challenge for cause to be sustained, usually the lawyer must get the juror to admit facts or attitudes that show bias. Most people, however, do not like to admit such things -- especially in a room full of other people. But even without admissions of bias, the lawyer (or his client) might 'feel' that this juror will not give him a fair shake. This feeling might be based on all sorts of attitudes and preconceptions held by the lawyer or client -- not all of them provable or even admirable. But shouldn't such feelings be considered if we want litigants to have confidence in the jury's verdict and respect for the judicial system?

"Also, the pursuit of admissions of bias -- through penetrating voir dire questions -- might annoy, embarrass, or alienate the juror being questioned. If the lawyer fails to convince the judge to sustain a challenge for cause to this juror, the lawyer might be stuck with a juror who now has a reason to dislike the lawyer. Having the peremptory challenge as a back-up to the challenge for cause gives the lawyer some leeway to ask the questions he needs to ask to make proper challenges for cause.

"For all these reasons, the verdict of most trial lawyers -- civil as well as criminal, on both sides -- is: if we are to keep the jury, we must also keep the peremptory challenge. (Many judges, on the other hand, don't like the peremptory challenge, because it takes up too much trial time.)"

My new Turkish friend rendered his verdict. "Thank you for your analysis, Professor, but I think we Europeans will stick with what we have. You have all these Band-Aids propping up a system that entrusts lay people with more than they can handle. Why not just get rid of the jury and be done with it?"

Good question. If you were designing a legal system, would you include juries? If you were designing a system of government, would you allow 12 unelected, untrained citizens chosen at random to decide whether to declare war? Whether to raise taxes? Whether to adopt a death penalty? Whether to impose a death penalty on an individual? Whether to decide an individual's guilt or innocence of a crime? Whether to impose liability for money damages on someone?

It's not so easy to abolish jury trials. The Sixth Amendment locks in the right to a jury in criminal cases. We have, however whittled away with juries in civil cases -- especially with the advent of arbitration. And I'm not sure we really want to totally abolish them, even in civil cases. There still remain vestiges of the old notion that we don't want to give government/judges too much power.

If we keep the jury, then maybe we need to keep the peremptory challenge -- to ensure confidence in jury verdicts. Granted, there is a cost, as the abolitionists point out. Some racist, sexist, and homophobic stereotypes will inevitably creep into the process. But attorneys who use their peremptories for such reasons will pay a price. They will waste their limited number of challenges on people who in fact do not fit their preconceptions, and might well vote to convict, find liability, etc. -- despite what some attorneys believe their race or gender dictates.

Abolition sounds good, but watch out for the law -- the law of unintended consequences. If litigants lose confidence in the accuracy and fairness of jury verdicts, why bother having juries at all? 