Peremptory Challenges and Unanimous Juries:

Dirk Olin has an essay in Slate objecting to the practice of allowing peremptory challenges in jury trials. Peremptory challenges allow a lawyer to dismiss a small number of potential jurors from the jury pool without giving a reason. (The word peremptory means “precluding a right to debate;” the dismissals are called peremptory challenges because the opposing attorney normally cannot challenge them.)

  Olin begins by recounting his experience as a dismissed juror in a criminal case in Newark, NJ. Olin had “been called for a case involving two black guys accused of dealing drugs near a school,” and the defense attorney exercised a peremptory challenge to get Olin off the jury. Olin, who describes himself as “a 40-something male mutt of Northern European extraction,” suggests that his dismissal was an example of “discrimination against middle-aged white men” that should not be allowed:

On occasion, it is likely that peremptories have been exercised by wise and well-intentioned advocates who used their intuition to keep a bigot or conspirator off a panel. But let’s recall that England and Canada get along just fine without them. And in the aggregate, the common costs far outweigh the rare benefits. There’s enough sub rosa racism in the system as it is. The peremptory challenge’s effect is to disguise it, not minimize it. In reality, it’s little more than an invitation to judge-approved jury rigging.

  I think Olin is overlooking something important, however. My sense is that peremptory challenges exist in the United States because juries have to be unanimous, at least in most jurisdictions. In a criminal case, every single juror has to agree for the jury to convict or acquit; a single juror can hang a jury and avoid either a conviction or acquittal. When a single juror can control the outcome of a case, it is reasonable to give parties the power to screen out jurors who they see (whether rightly or wrongly) as unrepresentative of the community at large. Peremptories can filter out unrepresentative viewpoints and leave a more accurate picture of core community values and attitudes.

  Of course, it would be ideal if people from all walks of life and all viewpoints could reach unanimous decisions. But part of the thinking behind peremptories is that jurors with unusual viewpoints may cause more harm than good. I’m not sure if I agree with the argument, but it seems plausible: While other jurors may benefit from exposure to the different perspective, the juror with outlier attititudes may also end up keeping the jury from reaching a unanimous verdict.

  In Olin’s case, for example, a defense attorney might reasonably conclude that a white male in his 40s who is an editor of a prominent legal magazine would identify with the police much more than would most citizens of Newark. If the case hinged on the credibility of a police officer, which is not unlikely, it’s not out of the question that Olin’s views would have been outside of the mainstream among prospective jurors. Of course, that doesn’t mean Olin wouldn’t be a great juror; it’s just that he probably isn’t a typical member of the jury pool.

  Finally, Olin notes that England and Canada get along just fine without peremptory challenges. That may be true, but the key question is whether these countries require unanimous juries, as well. I couldn’t find anything on whether Canada requires unanimous juries, but some quick research confirmed that England hasn’t required unanimous juries since the 1960s.

  UPDATE: It seems the Slate article is simply wrong about Canadian practices. Reader Matt Horner points out that Section 634 of the Canadian Criminal Code permits peremptory challenges:

634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to (a ) twenty peremptory challenges, where the accused is charged with high treason or first degree murder; (b ) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a ), for which the accused may be sentenced to imprisonment for a term exceeding five years; or(c ) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a ) or (b ).

Notably, Canada also requires unanimous jury verdicts.

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