Posted by Orin Kerr:
Peremptory Challenges and Unanimous Juries:
Dirk Olin has an essay in [1]Slate objecting to the practice of
allowing peremptory challenges in jury trials. Peremptory challenges
allow a lawyer to dismiss a small number of potential jurors from the
jury pool without giving a reason. (The word [2]peremptory means
"precluding a right to debate"; the dismissals are called peremptory
challenges because the opposing attorney normally cannot challenge
them.)
Olin begins by recounting his experience as a dismissed juror in a
criminal case in Newark, NJ. Olin had "been called for a case
involving two black guys accused of dealing drugs near a school," and
the defense attorney exercised his peremptory challenge to get Olin
off the jury. Olin, who describes himseld as "a 40-something male mutt
of Northern European extraction," suggests that his dismissal was an
example of "discrimination against middle-aged white men" that should
not be allowed:
On occasion, it is likely that peremptories have been exercised by
wise and well-intentioned advocates who used their intuition to
keep a bigot or conspirator off a panel. But let's recall that
England and Canada get along just fine without them. And in the
aggregate, the common costs far outweigh the rare benefits. There's
enough sub rosa racism in the system as it is. The peremptory
challenge's effect is to disguise it, not minimize it. In reality,
it's little more than an invitation to judge-approved jury rigging.
I think Olin is overlooking something important, however. My sense
is that peremptory challenges exist in the United States because
juries have to be unanimous, at least in most jurisdictions. In a
criminal case, every single juror has to agree for the jury to convict
or acquit; a single juror can hang a jury and avoid either a
conviction or acquittal. When a single juror can control the outcome
of a case, it is reasonable to give parties the power to screen out
jurors who they see (whether rightly or wrongly) as unrepresentative
of the community at large. Peremptories can filter out
unrepresentative viewpoints and leave a more accurate sample of the
community.
In Olin's case, for example, a defense attorney might reasonably
conclude that a white male in his 40s who is an editor of a prominent
legal magazine would identify with the police much more than would
most citizens of Newark. If the case hinged on the credibility of a
police officer, which is not unlikely, it's not out of the question
that Olin's views would have been outside of the mainstream among
prospective jurors. Of course, that doesn't mean Olin wouldn't be a
great juror; it's just that he probably isn't a typical member of the
jury pool.
Finally, Olin notes that England and Canada get along just fine
without peremptory challenges. Maybe that is true, but the key
question is whether these countries require unanimous juries, as well.
I couldn't find anything on whether Canada requires unanimous juries,
but some quick research confirmed that England hasn't required
unanimous juries since the 1960s.
References
1.
http://www.slate.com/Default.aspx?id=2111247&MSID=D237CD8E9A184E1B9D331DC67DF7B4AF
2.
http://www.m-w.com/cgi-bin/dictionary?book=Dictionary&va=peremptory&x=0&y=0
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