The peremptory problem
The best-known problem with peremptory challenges — a lawyer’s dismissal of a prospective juror without a stated cause — may be that too often there actually is a cause, and it’s an improper one. For example, lawyers have used their no-stated-cause challenges in attempts to remove jurors because of their race, gender or sexual orientation. Courts have banned the practice, but when lawyers need not state a cause, it’s not always easy to know their motivations.
There is a lower-profile problem with peremptory challenges as well, at least in California, where prosecutors and defense lawyers in misdemeanor trials are each allowed an astounding 10 such challenges, far more than are permitted in most other states. With such wide latitude in rejecting jurors, the selection process eats up a great deal of time — court time, juror time, attorney time. It slows proceedings, making them costlier for a justice system that already is struggling with slashed funding.
Those higher costs would be justifiable if the purpose of the challenges was to exclude jurors unable to understand or follow the proceedings, or those with a bias against certain types or classes of people. But lawyers already can dismiss an unlimited number of prospective jurors for those good causes.
California lawmakers are considering a bill to reduce the number of peremptory challenges in misdemeanor trials from 10 to six, and only for an experimental six-year period. Lawyers currently are limited to six in low-level misdemeanor trials, in which the maximum punishment is 90 days. Six ought likewise to be a sufficient number in other misdemeanor prosecutions.
Defense lawyers argue that their ability to examine potential jurors already is too limited under California laws that assign to judges, rather than lawyers, the job of questioning them. But prosecutors and defense lawyers still ask questions, under a judge’s supervision, just as they do during trials.
Many justice experts, U.S. Supreme Court Justice Stephen G. Breyer among them, have called for abolishing peremptory challenges altogether, in felony as well as misdemeanor cases, to eliminate improper or frivolous reasons for striking jurors, and the idea has merit. In comparison, AB 87 by Assemblyman Mark Stone (D-Santa Cruz), with its reduction to a still-ample six such challenges, is remarkably modest.
The bill has cleared the Assembly. The Senate, too, ought to approve the bill to help make the jury selection process less like a casting call and more like what it should be — a way to obtain random cross-sections of society, capable of understanding testimony and making fair judgments about what they hear.