Wednesday, September 1, 2021

Arizona eliminating peremptory challenges in jury selection

 Arizona’s top court is eliminating the longstanding practice of allowing lawyers in criminal and civil trials in state courts to remove potential jurors without explanation, a move that proponents said would help prevent discrimination in the selection of trial jurors, The Associated Press.

So-called peremptory challenges will end Jan. 1., under a groundbreaking rule change ordered by the Arizona Supreme court.

In the meantime, a court task force will recommend possible changes to current court rules that also allow opposing sides in trials to ask judges to remove potential jurors for valid reasons such as stated bias or inability to serve, the order said.

Peremptory challenges are a hot-button legal issue nationally as illustrated by jury selection in the trial that resulted in the conviction of a former Minneapolis police officer in George Floyd’s death.

Robert Chang, a Seattle University law professor, said during an interview Saturday that he believed Arizona’s impending outright elimination of peremptory challenges is believed to be a first such step by a U.S. state, though others such as Washington and California have recently moved to place new restrictions on the challenges.

“Arizona clearly has gone further,” said Chang, the director of a legal center that endorsed a competing Arizona rule-change proposal to restrict but not eliminate peremptory challenges. “Arizona’s move is big, and it will be fascinating to see what other states and courts do.”

The Arizona court rejected the competing proposal and, as is its practice when it acts on requests to change rules, did not comment on its reasoning for its actions.

However, the two state Court of Appeals judge who proposed the rule change in January said it was “a clear opportunity to end definitively one of the most obvious sources of racial injustice in the courts.”

While many lawyers view peremptory challenges as a way to “structure a jury favorable to his or her cause,” that interest should be secondary “if elimination of racial, gender and religious bias in the court system a controlling goal,” Judges Peter Swann and Paul McMurdie wrote in their proposal.

The current system of allowing a side to object to the other side’s peremptory challenge of a potential juror if discrimination is thought to be the unstated motive is ineffective and inefficient, according to the proposal by the two former trial judges.

Their proposal drew some support but also strong opposition from within the state’s legal community while it was under consideration by the Supreme Court.

Eliminating peremptory challenges would make it harder to pick a fair and impartial jury because some potential jurors would be chosen if they said they could be impartial even though one side in a trial thought they likely weren’t acknowledging biases, opponents said in comments on the proposal.

“Expecting a prospective juror to candidly admit that they cannot be fair is not realistic,” Maricopa County attorney Allister Adel said in a comment.

Supporters included nearly all the judges on a trial court in one mid-size county. Apart from preventing discriminatory abuse of peremptory challenges, their elimination presents opportunities to streamline jury selection, the Yavapai County Superior Court judges’ comment said.

Chang, the Seattle University professor, said it’ll be important to follow up the elimination of peremptory challenges by changing other rules to allow lawyers more time in court to question potential jurors about potential biases.

Otherwise, “it’s really hard to get the basis for making for-cause challenges,” Chang said.

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