Apr 06, 2009

Peremptory Challenge Mistakes Are No Big Deal

Peremptory challenges allow prosecutors and defendants alike to get rid of potential jurors even though they are legally qualified to serve. The idea is that a party should be able to kick off a few people who give off "bad vibes," even if the party can't prove to the trial judge that actual bias exists.  About the only limitation on the use of peremptory challenges is that they can't be used to discriminate against potential jurors based on race or gender.  

In the 2009 case of Rivera v. Illinois, the U.S. Supreme Court decided that a judge's erroneous denial of a peremptory challenge made by a defendant charged with murder is not a serious enough mistake to justify reversing a conviction. The trial judge denied Rivera's peremptory challenge to Deloris Gomez, who later turned out to be the jury foreperson.  The trial judge denied the challenge because the judge believed (wrongly, so a higher state court later ruled) that Rivera's only basis for trying to kick Gomez off the jury was her gender. However, since Rivera could not show that Gomez was in any way biased against him, and in fact Gomez was legally qualified to serve on the jury, the trial judge's mistake was harmless and didn't justify setting aside the guilty verdict.  

Peremptory challenges are an uncomfortable fit with our largely-rationalistic trial process.  Based largely on intuition and hunches, lawyers can try to seat favorable juries by excusing those who "just don't seem right."  I've heard some lawyers admit that it's time to consign peremptories to the dustbin of history. Excuse potential jurors who are biased or who for some other reason are not legally qualified to serve, and get on with the trial.  That's pretty much what happens in England, and the U.S. may be headed in that direction.