21 years ago, in Batson v. Kentucky, the Supreme Court held that a prosecutor's use of peremptory challenges on the basis of prospective jurors' race violates equal protection. Justice Thurgood Marshall joined Justice Lewis Powell's majority opinion, but also wrote a concurrence arguing that the Court should go further and completely ban peremptory challenges. Permitting any such challenges, Marshall said, would make it extraordinarily difficult to prove race discrimination in any given case. In the years since Batson, the Supreme Court has expanded both the categories of forbidden discrimination (to include sex and national origin as well as race) and the circumstances in which it is forbidden (including peremptories by criminal defense attorneys and by attorneys in civil cases). However, the Court has not taken up Justice Marshall's suggestion of eliminating peremptories altogether.
That is most unfortunate. Given the ease with which a prima facie Batson violation can be rebutted, Justice Marshall was probably right that much illicit discrimination goes undetected. But even if he were wrong about that, eliminating peremptory challenges would have a wholly unrelated and almost entirely beneficial effect: It would greatly shorten the length of time it takes to pick a jury and the number of people needed to make up a jury pool.
I am painfully aware of the cost of peremptories at the moment because I am currently in the midst of jury service. I spent most of today with about 60 of my fellow citizens in a New York State criminal court, as the judge and lawyers painstakingly asked each prospective juror a variety of questions. To be sure, some of these questions were designed to elicit grounds for cause dismissals, such as connections to the parties or professed inability to follow the judge's instructions regarding reasonable doubt. (I strongly suspect perjury from some of my fellow prospective jurors, who, in my view, were claiming that they could not be sure they would follow the law as a means of being excused from service.)
However, at least half of the questioning concerned matters that did not reasonably relate to a cause dismissal. Instead, questions about jurors' occupations and hobbies are designed to permit lawyers to exercise their peremptories on the basis of those hunches and stereotypes that the Batson line of cases does not forbid. Thus, the result of having peremptory challenges is to roughly double the amount of time per panel member on voir dire. Moreover, unless I've misread the applicable New York statute (and I admit I don't usually practice criminal law in New York), in a robbery case of the sort I'm now on (as a panel member only so far), the prosecutor and the defense attorney are each entitled to exercise 19 peremptory challenges. That means that if each side uses up all of its peremptories, then in order to seat 12 jurors and 2 alternates, the court will have to find 52 qualified jurors.
In other words, in a New York State criminal case, jury selection may take 6 times as long with peremptories as it would take without peremptories (twice as long examination per juror and three times as many jurors). New York's use of peremptories also requires citizens to show up to jury duty as much as three times as often as they would need to without peremptories (because the ratio of rejected to accepted jurors is so high). And for what? There is simply no reason to think that the dismissal of qualified jurors results in juries that are more fair or better along any dimension. Peremptory challenges have been completely abolished in England with no evident ill effects.
Admittedly, the fact that peremptory challenges end up wasting the time of an enormous number of people does not mean that they violate the Constitution, but the problem at least cries out for legislative reform. As far as I can tell, the only constituency that favors peremptory challenges is trial lawyers. Long ago, I was the Reporter for a New Jersey Supreme Court committee tasked with addressing bias in the jury selection system. (At the time I lived and worked in New Jersey.) I proposed eliminating peremptories. The judges and the one other professor on the panel heartily seconded the proposal but the trial lawyers all balked. As one of them explained to me outside the meeting: "A peremptory challenge is my one opportunity to overrule the judge. I'll be damned if I give that up." To which the rest of us should respond: Fine; don't give it up; we'll take it from you.
Posted by Mike Dorf