The Septuagenarian Speaks, published September 15, 2021, Siskiyou Daily News

“The defense would like to thank and excuse juror number 8.” If you ever sat through a jury trial in California, you have probably heard the attorneys say that or something similar. It is the nice way attorneys use to exercise a peremptory challenge of a prospective juror during jury selection. California, like virtually all states up to now, allows both sides in a jury trial to exercise a specified number of peremptory challenges to prospective jurors. This means that the attorneys for each side of a case can simply excuse prospective jurors without stating a reason for doing so. In California, each side is entitled to ten peremptory challenges in non-capital felony cases and six in civil cases. The use of peremptory challenges has come under criticism for potentially being discriminatory. California, like most states, has developed a procedure allowing a party to object to the blatant use of peremptory challenges to remove prospective jurors on the sole ground of race or some other group bias. This is generally called a Wheeler-Batson motion. Unfortunately, the Wheeler-Batson procedure is complicated and unwieldy, and disruptive of the trial proceedings.

Last week Arizona announced a rule eliminating peremptory challenges entirely, effective January 1, 2022. The change was created by a rule promulgated by the Arizona Supreme Court, not the state legislature. As I am writing this, the new Arizona rule has received little national media attention. Although I may be wrong, I expect this to change. If I am right … well … you heard it here first.

I can’t believe the federal politicians will let Arizona’s maverick rule go unchallenged. They will want to pass federal legislation, usurping the state’s right to control the proceedings of its own courts. Why? Because it’s Arizona that’s doing it. It does present a dilemma for woke federal politicians, because, at least in theory, allowing the exercise of peremptory challenges invites discrimination. But the ambition of the federal government to meddle and take over control of matters traditionally left up to the states seems pretty strong right now.  So, what will the politicians do? We will see.

Politics aside, is Arizona’s approach good or bad? That’s a judgment call, with reasonable arguments pro and con. From my own perspective as a retired California judge, I think our state’s current process is too time consuming and disruptive. I would like to see it streamlined, perhaps by reducing the number of available challenges. But eliminating the process entirely is another matter. Even without peremptory challenges, parties still can ask the court to excuse prospective jurors for cause. Bias is one of the available reasons for a juror to be excused for cause. If a juror demonstrates that he or she has a prejudice that prevents the juror from being fair, then the juror can be excused for cause. But this can be difficult to flush out. During the jury selection process (voir dire) the attorneys and the judge ask questions of prospective jurors to determine, among other things, whether because of bias, prejudice or some other factor a juror is unable or unwilling to give both sides a fair trial. But bias or prejudice can be difficult to discover. If a juror is simply asked, “Can you give this defendant a fair trial?” the juror is likely to say “yes, of course,” (unless, of course, the juror doesn’t want to be there in the first place.) The questioning can be more specific, but a juror with an agenda who wants to participate in the trial will be able to answer questions in a manner that would not disclose, at least on the record, a legal cause for disqualification from the case. That is where the peremptory challenges come in. In my opinion, the attorneys and their clients should be able to use their intuition to discern whether a particular juror might be unable or unwilling to give them a fair trial. A prospective juror’s demeanor would not appear on the written record, and therefore not be sufficient to create a legal justification why the juror should be excused for cause. Mannerisms like hesitancy to answer questions, nervousness, facial expressions, and eye-rolling, for example, do not show up on the written transcript.

Also, there may be another down side to eliminating peremptory challenges entirely. Time saved by eliminating the peremptory challenge process may be outweighed by the necessity to give the attorneys more time to cross examine jurors to ferret out reasons they should be disqualified. Besides being time consuming, this can lead to an invasion of jurors’ privacy.

So, for me the bottom line is that I don’t agree with Arizona’s approach of entirely eliminating peremptory challenges. That being said, I don’t think the federal government should take it upon itself to meddle. That different states may take different approaches toward certain issues can be a good thing. Like a laboratory experiment, it’s a good way to discover what works and what doesn’t.

Bob Kaster
Yreka, California