Wednesday, June 15, 2005

Peremptory challenges to prospective jurors

This week the US Supreme Court threw out the conviction of two accused murderers on the basis of racial discrimination in jury selection. The court ruled that prosecutors had used peremptory challenges to ensure an all-white juries that would be more likely to convict the black defendants. Jury selections or strikes that are based solely on race are unconstitutional. (Miller-El v. Dretke, Johnson v. California)

In a concurring opinion Justice Breyer argues that peremptory challenges should be eliminated entirely. This would eliminate the practical problem of a court determining whether an attorney's Jury strikes are based on unconstitutional grounds and avoid situations like the two cases in question. The AP reports on Breyer's opinion with some context here. One of the points made is that jury-selection has become a highly sophisticated process, essentially trying to game the system.

I have to agree with Breyer here and my reasons go beyond the practical considerations. The jury system is an important guarantee provided by the Constitution and more broadly the Anglo Saxon tradition that protects individuals from arbitrary or malicious actions of government or judges. The system makes the most sense, however, when the jury is composed of a fully random sample of the populace. Certainly screening out those perspective jurors who have a vested interest in the case or a particular bias is appropriate, since the goal is a fair, unbiased jury. These strikes are done for cause and I have no argument with them. Allowing attorneys to select who they don't want to see on a jury, however, destroys the spirit of the system. While proponents will say that they are acting to try to remove biases that they can't prove, it seems much more likely that it is employed to ensure that the jury is in fact biased, but biased to one side.

Courts of law should be about law, not gut feelings or intuition. If there is no cause to eliminate a prospective juror he or she should serve.

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