The peremp­tory prob­lem

Los Angeles Times - - SUNDAY OPINION -

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.

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