Arizona Changes the Game in Jury Selection by Eliminating Peremptory Challenges

Peremptory challenges allow attorneys to strike potential jurors from sitting on the jury without a reason unless it is motivated by race, ethnicity, or sex. This allows each side to remove potential jurors that they do not feel are best for their case without having to explain why they are removing them. Peremptory challenges sparked abundant life creating the world of jury selection consulting, academia on the subject, and intense strategizing about who is the best person to sit on your jury and who is the worst. Because juries hold the ultimate power at the conclusion of a trial, eliminating the right jurors for your case can be the difference between winning and losing. This year, Arizona passed a rule, approved by its supreme court, eliminating the use of peremptory challenges in trials starting next year.

On the defense side, proponents of eliminating peremptory challenges think it will help prevent prosecutors from striking jurors based on the color of their skin, even considering the availability of Batson challenges. Opponents of removing these challenges, which seems to be many, are not in favor of removing a strategic part of a winning game plan. Attorneys, much like any profession, get used to certain rules and procedures. Removing some tools at their disposal is likely cause disruption regardless of what it is actually about.

In most Minnesota criminal cases, the prosecution gets three peremptory challenges and the defense receives five. In Minnesota cases punishable by life in prison, the defendant receives fifteen peremptory challenges and the prosecution gets nine. There are also challenges for cause, which are unlimited. But to be successful in a challenge for cause, the moving attorney must show that the potential juror cannot try the case impartially and without prejudice to either party. There are also other reasons that constitute challenge for cause.[1]

The “right to an impartial jury” of your peers is rooted in the Sixth Amendment. Arizona is toying with this fundamental right with its experiment of eliminating peremptory challenges. With only having challenges for cause, will attorneys – and more importantly defendants – believe they are still getting an impartial jury? Time will tell. In the meantime, it will be interesting to see if any other states soon follow.

Robert H. Ambrose is a criminal defense attorney and DUI lawyer in Woodbury, Minnesota. Super Lawyers named him a Rising Star for the past six years; and the National Trial Lawyer’s Organization named him a Top 40 Under 40 Trial Lawyer the past seven years. He is an adjunct professor at the University of Minnesota Law School. DWI Lawyer Woodbury MN; Criminal Defense Attorney Woodbury MN; and DUI Attorney Minnesota.

[1] Felony convictions unless the person’s civil rights have been restored; disabilities, relation to any of the parties in the case; service on any jury involving the same defendant, etc.

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