The Death of the Peremptory Strike in Arizona BRIT A. SIMON, ESQ. – ASSOCIATE ATTORNEY, THOMAS RUBIN & KELLEY PC BRIAN D. RUBIN, ESQ. – MANAGING PARTNER, THOMAS RUBIN & KELLEY PC
Every member of the Arizona Association of Defense Counsel, and perhaps even most members of the public who have ever watched an episode of Law & Order or fulfilled their civic duty to sit on a jury, are probably familiar with the process of jury selection. The attorneys ask questions of the jurors in an effort to learn more about their backgrounds, identify any potential biases or conflicts, and eventually determine which individuals will sit on the jury itself. For centuries, attorneys have had two options with respect to removing jurors from the list of potential candidates – for-cause challenges and peremptory strikes. The former allows an attorney to strike a juror if they can cite to a specific reason why the juror should not sit on the jury based upon a lack of fairness or impartiality. The second option, the peremptory strike, allows an attorney to strike a juror without having to provide a reason. Historically, every state court in the country has afforded attorneys their right to exercise a peremptory strike of a juror.
This right, however, has not been unfettered. In 1986, the United States Supreme Court handed down an unwavering ruling which has since been binding upon every attorney in America. In that case, Batson v. Kentucky, the Court held that, in a criminal case, a peremptory strike may not be used to exclude jurors based solely on their race.1 Subsequent jurisprudence has resulted in the extension of Batson to civil cases 2 and cases where jurors are excluded on the basis of sex.3 In recent years, the sufficiency of these restrictions in terms of preventing the exclusion of a juror for an improper purpose, such as on the basis of race or sex, has been called into question by many. In fact, the appropriateness of the peremptory strike mechanism is an issue that has not only been debated in the United States, but across the world. England abolished peremptory strikes in 1988, and Canada did so in 2019. With respect to the latter, there have been varying opinions as to the impact said abolishment has had on
1) Batson v. Kentucky, 476 U.S. 79; 106 S. Ct. 1712; 90 L. Ed. 2d 69; (1986) 2) Edmonson v. Leesville Concrete Company, 500 U.S. 614; 111 S. Ct. 2077; 114 L. Ed. 2d 660; (1991) 3) J. E. B. v. Alabama ex rel. T. B. 511 U.S. 127; 114 S. Ct. 1419; 128 L. Ed. 2d 89; (1994)
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COMMON DEFENSE | Fall 2021 | azadc.org
