THE DEATH OF THE PEREMPTORY STRIKE IN ARIZONA

B R I T A . S I M O N , E S Q .

– A S S O C I A T E A T T O R N E Y , T H O M A S R U B I N & K E L L E Y P C B R I A N D . R U B I N , E S Q . – M A N A G I N G P A R T N E R , T H O M A S R U B I N & K E L L E Y P C

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 and cases where jurors are excluded on the basis of sex.

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

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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)

the justice system. According to the Canadian Association of Black Lawyers, 4 “[p]eremptory challenges are required to protect the constitutional rights of Black accused persons... abolishing them led to "the exacerbation of the very issue that it claimed to fix: systemic racism . " Another Canadian legal organization, Aboriginal Legal Services, took a diametrically opposite view: "[t]he exclusion of Indigenous jurors through the use of peremptory challenges is a real and persistent problem that has a corrosive impact on the jury process. ” Id.

Arizona is becoming the first jurisdiction in the United States to undertake radical measures with the stated ultimate goal of reducing institutional racism as it pertains to jury selection. In the past, the Arizona Rules of Criminal Procedure afforded the prosecution and criminal defendant between two and ten peremptory challenges, depending on the severity of the charges. The Arizona Rules of Civil Procedure previously afforded a litigant four peremptory challenges. However, the jury selection process in Arizona is about to change significantly. On August 30, 2021, the Arizona Supreme Court instituted a landmark rule change that made Arizona the first state in the country to abolish the use of peremptory challenges in criminal and civil trials. The rule change will go into effect on January 1, 2022, and thereafter, the only challenges that can be advanced will be those that challenge the jurors based upon a lack of fairness and/or impartiality (and, separate and independent from the discretion of attorneys, a juror’s claim of hardship).

The proposal to end the practice of peremptory strikes was championed by two state appellate judges: Peter B. Swann (Chief Judge of the Arizona Court of Appeals, Division I) and Paul J. McMurdie (Judge of the Arizona Court of Appeals, Division I). Judge Swann and Judge McMurdie argued that peremptory strikes propagated bias against potential jurors on the basis of sexual orientation, disability, gender, race, or ethnicity.

"The primary tool by which this discrimination is practiced is the peremptory strike,

'' they wrote in their petition. However, the proposal to eliminate the peremptory strike was not particularly well received by many members of the legal community in Arizona. Notable organizations such as The State Bar of Arizona, the Arizona Attorney General’s Office, the Mutual Insurance Company of Arizona, the American Board of Trial Advocates, and others all spoke out in staunch opposition to the proposed change. The motivation of most, if not all, of these organizations, was rooted in the argument that the abolishment of the peremptory strike rule would result in the empanelment of juries that were not fair or impartial. The comment submitted to the court by The State Bar of Arizona, in opposition to the rule change, stated “[e]limination of peremptory strikes could well result in a jury selection process that helped conceal juror bias, resulting in fewer fair and impartial juries.... Instead of eliminating peremptory challenges, the State Bar submit[ted] it would be wiser to ensure this important procedure is used properly to secure a fair and impartial jury.

4) https://www.nationalmagazine.ca/en-ca/articles/law/in-depth/2020/why-are-we-eliminating-peremptory-challenges

There are, of course, potential benefits to the elimination of the peremptory strike, which are independent of the overarching goal of reducing institutional bias. It is no secret amongst attorneys that the jury selection process can take hours, and potentially days, depending on the magnitude of the case at hand. Allowing attorneys to only strike jurors for cause, as opposed to granting them latitude to do so for an unspecified reason, may assist in streamlining the process. No one has argued that attorneys do not use the jury selection process to benefit their “ side. ” And thus, the removal of any such efforts to form a jury that is favorable to one side versus the other (whether that be for a proper or improper purpose), could certainly speed up the empanelment of a jury. Further, because there will be a reduced number of stricken jurors, the pool of potential individuals needed in order to eventually seat a full jury will be lessened as well. That is not to say that these benefits outweigh the potential negative impact of this rule change, however, it is certainly something to be considered as the system swiftly shifts away from peremptory strikes.

On a procedural level, this rule change will likely heighten the level of “ control” a presiding judge will have over the empanelment of juries. Under the new rules, the only mechanism available for striking a juror will be a challenge for cause (or, independently from the purview of the attorneys, a juror’s claim of hardship), and the determination as to whether the claimed “ cause” as set forth by an attorney will be at the discretion of the judge. By way of example, if an attorney attempts to strike a juror because he attended the same university as a defendant, the judge will be the sole determinator of whether, in light of the facts and circumstances of the case, said cause is sufficient to warrant the striking of that juror. If the judge disagrees, and the juror is allowed to be seated, the opposing party is essentially without recourse aside from their right to appeal a verdict following the trial. While no one, particularly the authors of this article, intends to set forth an opinion that the discretion of judges gives rise to any impropriety, there is no doubt that a difference of opinion as to the sufficiency of “ cause” can be significant.

Because Arizona is the first state to ban the use of peremptory strikes, other jurisdictions will certainly be monitoring the effects said change has on Arizona’s judicial system. Whether other states adopt similar or identical changes remains to be seen. What is clear is that Arizona has made an aggressive move here –and others are, and will continue to be, watching closely to see how this change plays out.