Do peremptory strikes ever make the jury more impartial/fair? If so, how do they do so? Beyond their historical significance, what purpose do peremptory challenges serve? How should we weigh this purpose in comparison to the critiques? What are some solutions to the problems discussed by Marshall in his Batson concurrence? Should we eliminate peremptory strikes for the prosecution? Should we eliminate them altogether?
Peremptory strikes are just unworkable for the prosecution--I can't think of a possible way to implement a prosecutorial peremptory strike without reproducing the same racially skewed jury system we have today. They have to go, at least for the prosecution. I see less of a problem on the defense side
I believe that peremptory challenges should be kept by defendants - I also think this discussion made me think more deeply on the semantics of "fair" and "impartial" and how the word "impartial" carries with it so many different interpretations (which is the issue)
I kind of think everyone should get them. There are flukes that will slip through the jury selection processes. I think everyone should get some ability to remove those flukes. The defendant because they don't want to be unfairly convicted, and the prosecution because the public should be confident that no flukes are keeping criminals on the streets
i think the concept of preserving the adversarial system is only really applicable in civil trials at least in my head. In a criminal trial the prosecutor should be interested in justice over capable lawyering
The way I think about the peremptory jury selection process is that if we can pick a diverse jury representing the community then peremptory challenges make the most sense. You begin with a representitive pool of 2000 people, then strike for cause any that are necessary. After that you have a pool consisting of the remainder, all of whom should be able to serve properly. From that group it should be that the prosecution who represents the states interest in justice and the defense can randomly strike off jurors as a process of minimizing the jury to 12 people. This will land at a jury that each side is fairly comfortable coming to justice in front of.
Although I am leaning toward leaving peremptory challenges as is, one question I have is how can we trust someone's word that a strike was not used to exclude on the basis of race/how can we enforce Batson?
I almost think about this in terms of the voting rights requirements placed on the most blatantly discriminatory states--where they had to remain under additional scrutiny before making changes--it acknowledged that there are some instances in which this country's systems are starting from a different place when it comes to systemic discrimination based on race. People are racist throughout the US, but I thought it was interesting. I almost feel that judges in different jurisdictions could be parsed out the same way and some should be monitored more closely than others if we keep peremptory challenges.
I think it is infrequent for anyone to change their mind as a result of class discussions. Today for me, was an exception to that rule. Although I am not 100% sure I have changed my mind, I am very much on the edge. I was exposed to facts and perspectives that I was unaware of and that are convincing. I will have to think more about what I believe taking that new information into consideration. Thank you for a thought provoking class.
There is a structural reason why the prosecution shouldn't get them, in my opinion, one raised in my breakout room - when the jury is a sovereign check on the exercise of state power, why give the state such an indiscriminate ability to control the makeup of that body? It then can't function as well as a check on the state.
I also think that with peremptory challenges as it exists should also include questioning/challenging the presumption that the prosecutor is always using this State power "to obtain a fair and impartial jury" - that presumption is why the prosecution has historically been able to uphold forms of racial discrimination; automatically equating prosector's role with using the State's power in a way that automatically gets some credibility of fairness when that is far beyond the reality
There's no way that peremptory challenges should be allowed for prosecutors. What are they to say: "Nothing definitive came up to meet the for cause standard in voir dire, but I have a hunch that this juror might think the defendant is innocent!" There's much less clarity on if the defense should get less challenges and should get an 'additional filter' so to speak, but I think it would be less impactful anyway where unanimity is required for conviction.
eliminate it all together. How do they guarantee a more impartial jury? Both sides are inherently partial. Suggesting that two partial attorneys somehow create a more impartial jury is nonsense. Two negatives don't create a positive here. Peremptory strikes are mislabeled and mis-defined. What they actually are, or how they are actually used, is far from "striking without stated cause..." - I'd go as fair as saying that they are used to strike qualified jurors for improper cause (more often than not).
I think wherever we come out on peremptory challenges, the rule should be applied equally to both sides. I understand that defendants have a lot riding on trial. But so too does the State. Victims are people too.
Isn't the prosecution, if they think someone is guilty, supposed to try to bring the best case against the defense. They are representing the public who want justice or the ability to live safely and freely in their community.
Vartburg brings up a good point. Find me a lawyer that wants a "fair" jury. Everybody wants a jury favorable to their side. The only way strikes gets you to "fair" Is if the adversarial system makes it such that the group whittled down by both sides are the people both sides have the least problem with. Basically, the 12 people you're left with are those both sides agree are the least bad for them. If only one side gets peremptory challenges, that's gone.
I am very pro-defendant...to a fault. But I have been trying to challenge myself to reframe and maybe humanize pro-prosecution rationales when dealing with this topic. If it's a rape case (I still tend to worry a lot about defendants in these cases, for various reasons), for example, wouldn't we want the prosecution to be able to screen for jurors who are particularly biased in terms of not believing survivors, for example?
@celestis if we assume that prosecutors are really interested in justice we need to be concerned about that canadian case and things of that nature happening more often. however that’s really only IF we assume prosecutors are interested in justice and not just making their W/L look better
peremptory strikes should be kept for defense only. if the prosecutor "has a hunch a juror may think the defendant is innocence" then they should still not get to strike them. all defendants should start with a presumption of innocence
Tbh I don't think its possible to have an impartial jury. Everyone comes in with baggage. Most people implicitly trust police more than lay witnesses or think that a defendant wouldn't be in court if they weren't guilty. On the other side, sometimes jurors literally decide guilt or innocence based on appearance. I only care about whether the trial is "fair" as possible for defendant
One small concern I have about a system in which only the defense can exercise peremptory challenges is how that would affect the defense's relationship with the jury--is there any risk that remaining jurors would somehow react negatively to the use of the challenges?
I agree with Bremervoord's point- Is the argument against that just that the odds are already stacked against the defendant? What about cases where that isn't true and obtaining a conviction is harder for various societal reasons such as racism or sexism against the victim?
If we eliminate it altogether, how do we ensure that a juror hasn't made up their mind before the trial even starts? Do we expand for cause strikes? If so, does having to state that arbitrary cause pose significant concerns? What if the judge disagrees?
yeah i think my opinion has changed too but in the opposite direction - i came into the class thinking keep them only for defendants but now i think about when the prosecutor is trying to bring a case against a horrible person and their afraid that one biased juror will nullify the proper verdict because they don’t believe women or have some natural biases against minorities
Doesn't the judge usually question jurors before they strike them for cause? Who is going to admit to being a racist? Do we really want either side to have to go on a witch hunt to prove someone is racist, rather than just getting rid of them with a peremptory challenge?
I agree with Porog - and earlier in today's discussion learned that the presumption of innocence means that jury selection should be based on choosing people who understand that standard - that they are to presume the defendant is innocent, and that this is the key in jury selection - finding jurors who can assume the presumption of innocence honestly and truthfully. This isn't about neutrality - this is about abiding by what the system portends to uphold - a presumption of innocence for defendants. If this is the case, then we need to select jurors based on people who validly presume the defendant is innocent.
I'm thinking about the role of the prosecutor - do we see them as "the carceral state" or as "the defender of the public"? Does it matter? As Prof N said at the beginning of class, technically it is the jury that decides the fact of guilt. So the prosecutor doesn't officially "know" that he is bringing a case against a guilty party until the party is convicted. But this is in tension with the idea that prosecutors have to already believe the party is guilty when the bring the charges
@jurors who believe in innocent until proven guilty - I liked Tayonna's point about the power imbalance that clearly puts the prosecution at an advantage rolling into voir dire. It would be ideal to give both sides the "same" right to challenge, but this seems like a tenable solution to level that inherent power imbalance
I think the notion of an impartial jury and a "fair" trial is a chimera in the first place, and this leads me to conclude that allowing only the defense to have peremptory challenges is the best approach. Fairness and impartiality in this context seem to describe a mythical condition where no jurors have any biases whatsoever and the parties are equally resourced, motivated, and competent. But we know this is never the case. A defendant meeting the forces of the state is at a tremendous disadvantage, and in the case of indigent defendants, it is even more one sided. Allowing the defense to have peremptory challenges merely gives David an arrow instead of a rock in his struggle with Goliath. Arguments that the prosecution also deserves a "fair" trial do not convince me. Trials are contests, and fairness in this contest does not mean equality in procedural rules. Fairness here should mean an acceptable level of power disparity and one that matches the rhetoric and purported normative commitments of the state. As of now in the U.S., that disparity is far too great to be called fair for the vast majority of criminal defendants. Allowing peremptory challenges for the defense would simply slide us towards a more acceptable level of disparity.
so for example what if a jury member is super PRO cop. that’s hard to strike i imagine. they want to nullify what happened to george floyd and let that cop who killed him off the hook. that doesn’t scare anybody at all?
If "pro defendant" means injecting less of a power disparity in criminal trials, then yes I think we can call it that. I think invoking the reality that there are victims and guilty defendants is a complete red herring in this context. We are talking about what we want the contours of the battlefield to look like such that in every single case, both those that involve guilty defendants and innocent defendants, where there are victims and there arent victims, that the disparity is even enough to be called fair. Appealing to emotions by pointing out the fact that there are in fact victims in some cases is a completely separate point that has no bearing on the contours of the trial itself.
I think that burden is high enough. No need to strip the prosecutors of even more power by inherently offsetting the balance during jury selection. Giving the right of peremptory challenges only to D is like saying "Yeah, D can strike jurors for improper cause (if D gets away with it) but the State cannot!" That's just wrong.
@centaurus i'm not sure it's a red herring. We like peremptory challenges for defendants because we want defendants to have fair trials. Similarly, we should port those considerations over for victims, because they also deserve fair trials.
@Altair, The insurance that a victim will have a fair trial is baked into the prosecutorial advantage already though. From the moment a suspect is apprehended and charged, the victim is assured a "fair" trial in the sense that it is far mroe likely than not that suspect will either plead guilty or be found guilty by a jury. What I am suggesting is that there is already so much of an assurance that chipping into that great advantage is a price we can absolutely afford and still ensure victims get their fair trial but that defendants are also afforded more fairness