Selecting Better Juries

As criminal justice reform has swept the nation in the last few years, a big topic of discussion has been finding a fairer way to ensure that juries reflect an unbiased cross-section of the community. Jury trials are supposed to take place in front of a jury of one’s peers, but this is easier said than done.

Generally, jury selection happens through a process in which a panel of prospective jurors is brought into the courtroom and questioned by the judge and the attorneys after which the lawyers may challenge prospective jurors in one of two ways.

The first is a cause challenge, in which a lawyer may argue to strike a juror from the panel based on a specific reason. I.e., the person will not commit to following the law, they have articulated a bias against one side or another, they do not speak enough English to fully understand the proceedings, etc…In this case, the lawyer must state the reason they seek to eliminate a juror and the judge then rules whether sufficient cause to strike the juror exists. Each side has unlimited challenges for cause for obvious reasons.

The second is known as peremptory challenges. Here, lawyers for each side may strike jurors without giving any reason at all. In California, the number of such challenges each side receives depends on the case: 6 in a misdemeanor up to 20 in a felony where the defendant is facing life.

Such challenges have long had problematic ramifications when it comes to the exclusion of jurors based on race. In the landmark case of Batson v. Kentucky, the U.S. Supreme Court sought to fashion a fix to this problem allowing lawyers to contest a peremptory challenge on the ground that it was motivated by race. The process works in 3 steps, the lawyer raising the issue must first make a prima facie case that the peremptory challenge was based on race. The other side must then provide the race-neutral reason it seeks to strike the potential jurors. Finally, the court determines whether the defendant has proven purposeful discrimination.

As you can imagine, it is a difficult hurdle to clear. Since peremptory challenges can be made on any basis other than race, it is not difficult to articulate reasons for a strike that do not pertain to race. A prosecutor can simply indicate they got a bad vibe from a juror, didn’t like the tone of their answers, and for a Batson challenge to be successful, a judge has to essentially call the prosecutor a racist liar if they want to sustain the challenge.

As such, racial exclusion from juries remains a persistent problem that Batson has been unable to fix. Recently, an idea that Justice Thurgood Marshall proposed in his concurring opinion in Batson has gained traction. Justice Marshall foresaw that Batson would be insufficient to end race discrimination in jury selection and argued that the goal could only be accomplished by “eliminating peremptory challenges entirely.”

In August, Arizona became the first state in the county to adopt this proposal, ending the use of peremptory challenges entirely. A similar bill in California failed in this year’s legislature. Instead, it passed a bill aimed at giving Batson more teeth, passing a bill that lowers the bar. Under SB 3070, it is no longer necessary to prove purposeful discrimination to sustain a Batson challenge, only that there is a “substantial likelihood that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, as a factor in the use of the peremptory challenge.” The law will make it much easier to challenge discriminatory use of peremptory challenges.

Notably, when the idea of following Arizona’s lead and eliminating peremptory challenges altogether was on the table, groups advocating on behalf of both prosecutors and criminal defense attorneys opposed the change. I suspect much of the reason for defense attorneys' opposition is that people are resistant to change. This is simply how we have always done it. Change is scary.

I took a different position, and it is based in part on the way I approach jury selection. I try the majority of my cases in Orange County, historically a jurisdiction full of conservative pro-prosecution jurors. I realize at the outset of jury selection, that I am never going to get 12 freedom fighters seated on a jury in Orange County. There are far more people I wish to eliminate than the prosecution in the average case and challenges are limited. Thus, my strategy has always been to try to ensure I have a few strong jurors who I believe will view the case my way and lead others in that direction. I preserve my challenges for the opposite, pro-prosecution-type jurors who I believe have the qualities that will sway other jurors.

A big consideration in this strategy is that, unlike the prosecution, I do not need 12 jurors to agree. A hung jury is generally a win for the defense and to avoid one, the prosecution needs 12 jurors willing to convict. Were peremptory challenges eliminated, I am confident that we would often be able to seat more defense-friendly jurors than we are otherwise able to. The prosecution would be stuck with a more accurate cross-section of the community. I am confident in this belief because, in my trials, the prosecution almost always uses more peremptory challenges than I do.

It will be interesting to see the impact that SB 3070 has on the jury selection process, but I think we must continue to keep the idea of the total elimination of peremptory challenges on the table.

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