The Only Thing Worse Than Peremptory Strikes Is Losing Them.
The utility and fairness of peremptory strikes has been the subject of discourse in the media, within blogs, and post jury selection in courtrooms and law offices of late. Opponents cajole that peremptory strikes are often capricious, discriminatory and patently unfair to the venire persons subject to the process.
Nathan Koppel in the March 5, 2009 Wall Street Journal intones: “In the interest of fair trials, attorneys can dismiss people from jury pools for dressing strangely, for being fat, even for just looking at them funny. What lawyers can’t do is dismiss potential jurors based on their race, gender or ethnicity. Yet, attorneys and academics say, it happens all the time.” Three Strikes and You’re Out? Critics Seek Juror-Dismissal Cap
Apparently, Mr. Koppel hasn’t read the plethora of “how to get out of jury duty” material on line. How to Get Out of Jury Duty. Wearing a t-shirt emblazoned with “Barbie is a Slut!!!” will do it every time. Why in the world would any litigant, defendant or the State want someone with this intention and attitude making serious decisions? D’oh!
The snarky ridicule above suggests that the motives and rationale for elective strikes are superficial and shallow… or sinister. Through this argument the writer seeks to dismiss the process, purpose and the product of effective, thoughtful inquiry in voir dire and paint it with the broad brush of taint. He wants us to believe that any point of view and any potential juror is as good as the rest when it comes to fair and impartial. He asserts that because the peremptory process might be misused, it should be abandoned. He’s wrong and here’s why:
We are as a species riddled with cognitive and emotional biases and partialities. Many of us proudly wear our prejudice out into the marketplace. Most of us are blind to ourselves. If human beings were sublimely self aware, imbued with perfect honesty, acutely reasoned and rational, untroubled by strong preferences, unfettered by faithful adherence to unquestioned beliefs, ruled by compassion and fair play, and born to Vulcan parentage, there would be no need for the peremptory strike. A straight question regarding bias or predilection would result in a straight answer and the cause strike would suffice.
Peremptory strikes are an effective way to remove extremes of partiality. By nurture and nature, jurors and other humans acquire beliefs, prejudices, cognitive short cuts, and heuristic biases that bracket and define our capacity to experience and conceptualize “reality” as we see it. These predilections are the “truth” as we know it and will circumscribe our capacity to weigh and measure the facts, testimony and arguments proffered in trial. Extremes of partiality affect the capacity of an individual to follow the instructions of the court and render the parties fair and impartial justice.
Perhaps the best reason to support peremptory strikes is to cure erroneous refusals by the trial court to excuse jurors for cause. You can’t assume the judge really cares or understands the issues in your case as well as you do and you have the obligation of effective advocacy… Hizzoner doesn’t. I’m not big on judge conducted voir dire.
Litigants and defendants have the right to competent representation. Whether competent means clever is another matter. One thing is clear: it’s clever to probe for partiality and get the cause strike if possible. Competent counsel should be acquainted with the abundant social science research pertinent to trial practice in the area of decision making, cognitive and emotional bias, prejudice and partiality, etc. Competent counsel will use that knowledge base to form incisive and probing questions for voir dire. Competent counsel will have refined those questions into conversational invitations to the panelist to self disclose. Competent counsel will welcome and encourage disclosures from the panelists that are adverse to the case. Competent counsel will be unrelentingly polite all through voir dire. Competent counsel will apply judgment with discretion and discrimination when pursuing the cause strike and reserve the remedy of the peremptory for the necessary culling of the partial or probably partial panelist. Competent counsel will know that attitudes are more important than demographics always. Competent counsel will use a peremptory strike on the strangely dressed fat man who simply looks out of place when it serves the advocacy of his client and the issues of the case.
Count me in as a proponent of peremptory strikes. Until my crystal ball comes back from the shop, I want to be able to use my judgment and my strikes to deselect and get the fairest panel possible.
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