The peremptory challenge right now shares one problem with the two leading presidential contenders: high negatives. In the recent Foster v. Chatman case, the United States Supreme Court overturned a murder conviction due to the prosecutor's use of peremptory strikes to eliminate African-Americans from the jury based on seemingly flimsy excuses such as a lack of eye contact when those race-based strikes were challenged. The simple solution, and the one proposed by Thurgood Marshall in his concurring opinion in the earlier Batson v. Kentucky case, is to eliminate the peremptory strike and put the full burden of checking bias on the cause challenge, accompanied by reasons and decided by judges. Marshall's call has been echoed by many other commentators. For example, at the Civil Jury Projectconference in the fall of 2015, Yale University's well-known law professor Akhil Amar called the existence of peremptory strikes "a disgrace," and without constitutional basis. In February, 2016, lawyers and judges from across California met to discuss a proposal to reduce the number of peremptories allowed in state courts.

The most recent example of this call comes from the Editorial Board of the Connecticut Law Tribune, who make the case for eliminating the peremptory challenge in Connecticut. "We agree with Justice Marshall's concurring opinion," they write, "that the best way to eliminate inappropriate use of peremptory challenges is to eliminate peremptory challenges." By expanding the cause challenge, making the basis more liberal in including the perception or appearance of bias as a basis for removal, the Board feels that goals of the peremptory strike can be preserved while limiting the chances for discriminatory strikes based on questionable reasons. It sounds like a nice idea: finally a clean sweep to end the troubled legacy of Batson and its progeny. But I believe this recommendation proceeds from a fundamental misunderstanding of the role of the peremptory strike. In this post, I will make the argument that, as much as we should liberalize cause challenges, we shouldn't expect that to do the job of the peremptory challenge, as originally intended and as still needed today.

The Current Argument for Doing Away with Peremptory Strikes

The article has, curiously, been pulled down, but a cached version of the Connecticut Law Tribune editorial reveals a short but clear argument for replacing the peremptory with a liberalized cause challenge. In addition to calling out the recent Foster decision, the article generalizes that "Peremptory challenges have a long history more closely related to justice by combat than to justice by equal protection of the law." The argument draws a dichotomy between reasons that would (or should) serve as the basis for a proper cause challenge on the one hand, and reasons that are based on nothing more than prejudice or a hunch on the other hand. In fact, the word "hunch" is used five times in a six-paragraph essay. "Once the case is in the courtroom," they write, "a proper argument before a judge should not be based on 'I have a hunch.'" Their argument is that if counsel's reason for wanting a panelist off the jury is not based on demographic prejudice and is not simply an unsubstantiated "hunch," then it should rise to a cause challenge, especially if the court applies a "liberal grant rule" in which the perception or appearance of bias can be enough to justify a cause removal, even if the potential juror is willing to proclaim their fairness to the judge. Expanding the basis for a cause challenge is a good idea, but the question is, does that really do the work of the peremptory? My answer: No, not if you take into account the full role of the peremptory.

The Peremptory's Purpose and Pedigree

In his dissent in Batson v. Kentucky, Chief Justice Warren Burger makes some good points. His central argument, in my view, isn't one of them: He approves of race-based challenges under cover of the peremptory strike because, "The expression required of a challenge is societally divisive." Today, it is easy to say that race-based exclusion, and other exclusions based on demographic stereotypes, should be "societally divisive" because they are wrong. But one can feel that the Equal Protection Clause trumps a party's interest in secrecy for its strikes, while still supporting the properand nondiscriminatory use of the peremptory strike.

As Justice Burger pointed out, peremptory strikes have been with us as long as juries have been with us. Their use in ancient Greece and Rome, and with the early English juries, has been based on a need for both party's mutual satisfaction with the panel. "The function of the challenge," according to Burger, "is not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try the case will decide on the basis of the evidence placed for them, and not otherwise. In this way, the peremptory satisfies the rule that, 'to perform its high function in the best way, justice must satisfy the appearance of justice.'" The rationale is not limited to individual, demonstrable, and judicially validated bias, but that doesn't mean peremptories are limited to empty hunches either. The spectrum in between, and the fact that there are reasons to strike that are reasonable but not individually provable, means that there is still a role for a proper peremptory strike.

The Reason Cause Challenges Will Never Do the Work of Peremptories

The best part of the Connecticut Law Tribute editorial is its call for application of a "liberal grant rule" on cause challenges. But expanding the basis for cause challenges solves the problem of over-restrictive cause challenges -- that is, the lack of any reasons to trust panelists' declarations of fairness in many cases -- but does not solve the reasons for having peremptories in the first place. That purpose is to address factors that could reasonably cause discomfort to a party, but without necessarily meeting the standard for a cause challenge. For example, let’s say that based on good experience, a mock trial or a community survey, counsel knows that jurors with a given experience or attitude are more likely to find against her client. It's not certain, but it is more likely. That could not be used as a basis for a cause challenge no matter the standard, first, because the past experience or the data couldn’t and shouldn’t be offered in court, and second, because it is a generalization – a reasonable and grounded generalization, but still a generalization and not a fact about the individual in particular. Applying strikes based on that kind of reliable but general information still helps to get both sides to a jury that is less likely to be guided by bias and more likely to be mutually satisfying.

In comparison to cause challenges, factors motivating a peremptory strike are more likely to be:

  • General rather than individual
  • Risks rather than certainties
  • Unacknowledged rather than admitted
  • Reasonable but not necessarily provable

What separates that from a hunch? Experience, social science, and often, applied (and proprietary) research on your own case.

And how do we continue to allow peremptories without also allowing racially-based strikes based on thin pretexts? That is a fair question, and probably the subject for another post, but the answer likely lies in counsel being trained to appreciate the true weakness of demographics as a predictor and empowered to question on other better bases for strikes, such as case-relevant experiences and attitudes.

So, like the presidential candidates, the peremptory does have some high negatives. But, also like the candidates, it has a strong base. That base is the historical purpose of peremptories in providing a mechanism for parties to be satisfied with the panel. Even without demographic strikes -- which experienced and properly-trained attorneys should have no reason to use -- the peremptory strike provides an indispensible tool for targeting case-specific experience and attitudes which are likely to reduce the fairness and the legitimacy of the trial process.