Whither Peremptories?

In a recent decision, Commonwealth v. Rodriguez, the Massachusetts Supreme Judicial Court considered whether a prosecutor’s use of a peremptory challenge to remove a prospective Hispanic juror violated the state and federal constitutional prohibition against excluding jurors “solely because of bias presumed to derive from their membership in discrete community groups.”

The prosecutor argued that he exercised a peremptory challenge against the juror because he found troubling “not only the juror’s failure to reveal her own and her son’s experiences in the court system, but her express indication to the contrary on the juror questionnaire.” The court concluded that the prosecutor’s use of the peremptory in this instance was not unconstitutional, given his legitimate and race-neutral concern about the prospective juror’s ability to follow simple instructions “in the context of a trial alleging murder in the first degree and involving two defendants.”

In a brief concurring opinion, Chief Justice Margaret Marshall reiterated her concern about the continued use of peremptory challenges. She stated that, “rather than impose on trial judges the impossible task of scrutinizing peremptory challenges for improper motives, it is time either to abolish them entirely, or to restrict their use substantially.” (Quotation omitted.)

Chief Justice Marshall accordingly stands in contrast to Justice Antonin Scalia, who in the 1994 decision J.E.B. v. Alabama decried the Supreme Court’s extension of prohibited bases for the exercise of peremptory challenges to include gender. Justice Scalia lamented the regulation of peremptories via equal protection, arguing that decisions such as J.E.B. did damage to the peremptory challenge system,

which loses its whole character when (in order to defend against “impermissible stereotyping” claims) “reasons” for strikes must be given. The right of peremptory challenge “is, as Blackstone says, an arbitrary and capricious right; and it must be exercised with full freedom, or it fails of its full purpose.” The loss of the real peremptory will be felt most keenly by the criminal defendant, whom [the Court has] until recently thought “should not be held to accept a juror, apparently indifferent, whom he distrusted for any reason or for no reason.”

The question is whether we have reached a time when we should no longer tolerate the use of peremptories that may be based upon undetectable irrational prejudice. Back in the day, peremptory challenges existed in the context of a jury pool comprised entirely of similarly-situated members of the community—all white, all male. Thus arbitrary juror selection could not be based upon prejudices we now view as suspect—suspect today because those prejudices may deny a defendant or a juror the constitutionally mandated equal protection of the laws.

The end of peremptories, as Chief Justice Marshall well knows, would mean more efficient jury selection. For cause challenges allow for reasoned argument and rebuttal—not to mention transparency—in all the ways that the use of peremptories does not.

But there may yet be a use for peremptories, as my colleague Vic Hansen explains in a forthcoming article, “Avoiding the Extremes: A Proposal for Modifying Court Member Selection in the Military,” in military courts-martial peremptories may be the best way to ensure defendants a fair trial. As he notes, the military context is one closer than the civilian criminal trial to the situation Blackstone contemplated, where prospective jurors are in a real sense similarly-situated as members of a particular military community. The effectiveness of the use of peremptories in that context, though, may be further evidence of why they create such problems in civilian courts.

—Lawrence Friedman