ruling for Petitioner Matthew Alex Erickson against the City of Seattle (City of Seattle v. Attorneys of both sides have access to two primary means of influencing the jury section: peremptory challenges and "for cause" challenges. Because peremptory challenges allow for greater discretion on the part of attorneys, they tend to be limited to prevent their abuse. 2. Judges and attorneys should be open-minded and curious. demonstrable scientific knowledge from junk or pseudoscience. But the Court's decision in Batson v. Prince 12.5 (www.princexml.com) The controversy stems from concerns about racial discrimination and whether using peremptory strikes to excuse members of a given racial group violates the Fourteenth Amendment. Sealy-Harrington also represented the B.C. open minded, curious and non-judgmental, jurors will be more candid in their No, lets talk about her, Column: Did the DOJ just say Donald Trump can be held accountable for Jan. 6? <>9]/P 20 0 R/Pg 33 0 R/S/Link>> In fact, the discussion will sug- gest that the focus on restricting the bases for peremptory challenges distracts attention from more important issues that should be consid- ered in attempting to select fair juries. Andr Bear, who is pursuing his law degree at the University of Saskatchewan, offers two conflicting stories that illustrate well what's being lost and gained, now that peremptory challenges are gone for good. They are used by both the defense and prosecution in order to eliminate sources of unconscious bias and seat the best possible jury. exam, it can be years before they see the inside of a courtroom unless they choose to go to the 10 uuid:ee7ac9dd-ad96-11b2-0a00-f02cc84cfc7f However, he also went on to properly. Keywords: jury system, Australia JEL Classification: K00, K19 lawyers over the years have done: used easy stereotypes to help them decide which jurors to juror uses to process the evidence and law presented during the trial. confirmation bias (only seeking information to confirm a prejudgment.) If a judge finds a prima facie case of potential misuse of challenges, endobj Arizona's top court shocked even some advocates last week when it unexpectedly, even quietly, became the first state to eliminate outright the century-old practice of peremptory juror challenges . If the attorney (and the judge) is First, a juror must be aware of their particular bias, second, they have to be motivated to biases or implicit associations in the decision making of judges, attorneys, and jurors, and What good is a silver bullet if, when fired, it turns out to be a blank? Some judges are generous and allow attorneys hours or days impartial jury would be obtained by just putting the first twelve jurors in the box.. "A visibly native potential juror walked in the room he had two braids, and dark skin," Bear says. biases affect a jurors thought and decision-making process. endobj These include questions like, How do you feel about? or How do you In The juror has conscious control over that bias. we are to truly address the issue of bias and look at meaningful ways to reform the use of Many anxiously await the reasons to see if the court tries to compensate for the loss of peremptory challenges. Create your account. or ambiguous questions are the best voir dire. The CBA's Family Law Section expresses it continued support for this program. From Frye through Daubert, the Courts have sought to establish tests to distinguish The defense counsel may think that the juror has a potential for bias and direct their unconscious resentment for being fired onto their client. Please note that asking whether they have an opinion individual experiences, sensibilities, and preferences. (Swain v. Alabama), opening the door to the discriminatory use of strikes. endobj The time and expense of the challenge process were shouldered by both the taxpayer and the parties. Intro to Criminal Justice: Help and Review, The Criminal Trial in the U.S. Justice System: Help and Review, Challenge for Cause: Definition & Criminology, Psychological Research & Experimental Design, All Teacher Certification Test Prep Courses, Introduction to Crime & Criminology: Help and Review, The Criminal Justice Field: Help and Review, Criminal Justice Agencies in the U.S.: Help and Review, Law Enforcement in the U.S.: Help and Review, The Role of the Police Department: Help and Review, Constitutional Law in the U.S.: Help and Review, Criminal Law in the U.S.: Help and Review, Constitutional Requirements of a Criminal Trial, Writ of Habeas Corpus & Reasonable Doubt in a Criminal Trial, Pretrial Activities of a Criminal Trial: Steps, Purposes & Importance, Stages of the Criminal Trial: From Voir Dire to Verdict, Types of Defense Against a Criminal Charge, Criminal Trial Post-Trial Steps: Appeals, Reviews & Processes, What is Double Jeopardy? peremptory challenges altogether, would almost certainly exacerbate the use of discriminatory Since the competition ultimately involves convincing jurors of the defendant's guilt or innocence, the jury's selection has become regulated to achieve this balance. opinions imply that attorneys have discriminatory intent in making these strikes, the use of The attorney will not need to explain this rationale; in principle, anyone could be excused from jury duty. In addition, voir dire preparation is often low on the priority list when an attorney is and biases, implicit or explicit, when making their peremptory strikes, which can in fact result in If Bear, a member of the Indigenous bar, also serves on the Canadian Juries Commission and as a chief's liaison for the Confederacy of Treaty Six. 5 0 obj v. Kentucky in preventing the discriminatory use of peremptory challenges in jury selection. The prosecution removed all of the other African Americans from the jury pool through peremptory challenges; thus, he was convicted by an all-white jury. Recently, in City of Seattle v. Erickson, 386 P.3d 1098 (Wash. 2017), the Washington the internet) a broad range of topics that directly relate to the cases we try. So when should the peremptory challenge have been filed? The defendant and prosecutor are granted this power; the goal is that by balancing the power. Heres why thats wise, Editorial: Bay Area making climate change history by phasing out sales of gas furnaces and water heaters, Nicholas Goldberg: How I became a tool of Chinas giant anti-American propaganda machine. attempting to prevent attorney bias the Courts may actually end up unintentionally concealing endobj In a Justin Ling is a regular contributor based in Montreal and Toronto. He calls peremptory challenges, and the way they were used to disqualify Indigenous jurors, "only one symptom of a legal system that is embedded with racism." jurors. The juror knows they have a bias. vy pp ia. "It's an old Indian fort. in the quality of responses to these questions, and only one of these questions may truly we should reform the voir dire process and ensure peremptory challenges are being used they themselves feel about these complex and difficult issues. that they dont know if they can keep, rather than exploring potential issues and areas of bias. National Magazine is the official periodical of the Canadian Bar Association and covers the latest trends and developments affecting the legal profession and the practice of law, as well as the latest news regarding the association and its activities. Laurel Johnson Do they use a cell phone in the car? sense. 2d 69 (1986 . ago, then men will examine each so-called delinquency until they discover its cause, and then The implementation of Bill-C 75 on June 21, 2019, removed the use of peremptory challenges in Canada. Stephens and Yu go further and call for the elimination of peremptory challenges altogether, Jurors dont always have quick and ready responses to A series of Supreme Court cases illustrate both the relatively recent controversy about peremptory challenges and the attempts to preserve them in the American legal system. just gave an undesirable response, prompting them to backtrack or shut down. Once the system ensures that there are fewer racialized or diverse people available to participate, the disproportionately-white jury cannot be impartial innate biases "impacts how they deal with evidence and credibility," he says, adding that there are no mechanisms to deal with those implicit biases. Even if that juror expresses no explicit bias, they may form an unconscious connection with the defendant throughout the trial that could cloud their judgment. endobj In Federal Court, attorney-conducted voir dire is often not allowed at all. be wiser to ensure this important procedure is used properly to secure a fair and impartial jury. accompanies knowledge, which can affect impartiality. While attorneys may abuse their discretionary powers, this risk is counterbalanced by the opposing attorney having peremptory challenges of their own. started recognizing the role of this implicit bias and how it drives decision-making, so it takes Originally in our system jurors were usually neighbors and townsfolk who knew all about the case. genuine feelings and beliefs. endobj Some judges list the pros and cons of choosing Irishmen, Englishmen, Germans, Catholics, Presbyterians, The juror knows the extent of their bias. Erickson, 386 P.3d 1098 (Wash. 2017), the Court stated, Batson v. Kentucky, 476 U.S. 79, 106 S. He provides the counterexample ofAustin Eaglechief,an Indigenous man who died after a chase involving Saskatoon police in 2017. Judges should then allow attorneys to ask follow-up questions. <>/Metadata 2 0 R/Outlines 5 0 R/Pages 3 0 R/StructTreeRoot 6 0 R/Type/Catalog/ViewerPreferences<>>> the case. Why? A statement in the opposition that the parties were specially appearing did not matterit is the character of the relief sought, not the intention of the parties, that matters. intimating environment of a courtroom, jurors are naturally reluctant to speak candidly Appellate Oral Argument: The Ultimate Misnomer? This will tell you the full extent of their attitudes and whether their Courts allowed prosecutors to use peremptory strikes to prevent Black people from serving on juries throughout most of the 20th century. The idea of the perfectly rational juror is a myth. It would be one thing for you to advocate the elimination of peremptory challenges altogether, as some members of the Supreme Court have done, but a reduction in the number of challenges. Top 3 Challenges in Benchmarking Research for Industrial. And as public servants, prosecutors should be willing to put their cases before anyone in the communities they serve. [32 0 R 35 0 R 37 0 R 39 0 R 40 0 R 41 0 R 42 0 R 43 0 R] was likely delivered to "clean up" uncertainty around whether the enacting legislation applied retroactively. On the rare occasions a juror does identify an experience or attitude that The . The case also turned on the use of forcein supposed self-defence situations, as well as the obvious deficit of Indigenous jurors on the rolls ("You can't deny that there are Indigenous people in the community of North Battleford [where Stanley was tried]," Bear says. Supreme Court Foster v. Chatman decision, in which the Justices found purposeful pre-trial conference, the Judge and attorneys discuss how to best explore these issues, Because Batson is so difficult to enforce, however, peremptory challenges are rarely disputed. The law also vests judges, not already-selected jurors, with the power to determine challenges for cause. However well intentioned, it is ironic that by they drive that will steer their collection of evidence. They Opinion: How has American healthcare gone so wrong? The defendant is a construction project manager. 12 0 obj experiences, beliefs, and common sense to interpret the evidence and law that is presented. racial bias, they seek to remedy the problem with rules rather than processes. As soon as a juror complex and not easily solved with a series of remedial procedures. He says that's a mistake. Ct. 1712, 90 L. Ed. In 2005, the Supreme Court considered the case of Miller-El v. Dretke. think about? or Whats your opinion about? For example, which question would true feelings. Swain, an African American man, was convicted of rape by an all-white jury and sentenced to death. challenges. While they may seem time meaningful discussion about jury selection and peremptory challenges. Sealy-Harrington also represented the B.C. The key idea is that a well-balanced competition between defense and prosecution will ultimately yield a fair result. In concurring with the opinion and establishing this bright line test, Washington Justices case, a question like, How do you feel about race relations in this country? may bring a Their first responses dont always express their they are usually just asked whether they can set that experience aside, and are forced to only leaving a panel of one hundred jurors. implementing punitive rule changes or eliminating peremptory challenges altogether, it would Follow the Opinion section on Twitter @latimesopinion and Facebook. this behavior is likely a primary reason that voir dire time has been so drastically reduced in witness? or How do you feel about law enforcement? There is a world of difference Additionally, many attorneys still believe they should spend their time in voir dire The current legal system is highly varied in the exact regulations and allotments of peremptory challenges; even within the United States alone, the defense may receive access to more peremptory challenges than the type of law prosecution to minimize the risk of convicting an innocent person. <> When used properly, peremptories are one of the most important tools defendants have in getting a fair jury. may affect their ability to be fair and impartial, the courts simply ask the juror whether they can attorneys, judges, and other jurors. While Washington was the first state to pass the sweeping reforms to the peremptory challenge process, all . Attorneys formulate open-ended questions about these identified biases or Discriminatory use of peremptory challenges is as much a product of our countrys bias from our jury system. That working group has recently come up with Proposed Rule 36, that the list of possible jurors don't need to look like a random cross-section of a community, so long as the state takes reasonable measures to allow the broader population to participate in the process. set it aside. Most jurors dutifully answer in the affirmative. resort to their own demographic formulas in selecting juries. How is it that removing a juror without an explicit rationale could achieve fairness? In a Federal criminal trial, for example, the defense has 10 such challenges and the prosecution has 6. Sealy-Harrington says our system still labours under a belief that juries are impartial because they were chosen through a supposedly random process, which was endorsed byKokopenace. be dismissed for cause. Two years ago, the federal government axed peremptory challenges, removing the ability of Crown and defence counsel to reject potential jurors out-of-hand, without any need to explain. Select low cost funds; Consider carefully the added cost of advice; Do not overrate past fund performance The plaintiff filed actions in three different counties and then filed a noncomplex motion to consolidate the actions in the San Diego County case. <>/MediaBox[0 0 612 792]/Parent 9 0 R/Resources<>/Font<>/ProcSet[/PDF/Text/ImageC]/XObject<>>>/StructParents 0/Tabs/S/Type/Page>> curtailed in recent years, attorneys have extremely limited time to discern which jurors will give Find a lawyer near you. - Definition & Meaning, Testimonial Evidence & Law: Definition & Examples, What is the Chain of Custody? Joshua Sealy-Harrington, who practises at Power Law and is currently pursuing his doctorate at Columbia Law School, acknowledges many of the problems baked into the use of peremptory challenges. It's up to the lawmakers, then, to step up. they have opinions on the subject matter. are not aware of biases related to the complex issues in a legal case such as attitudes toward - Definition & Meaning, O.J. The San Diego judge being challenged by the defendants had already been assigned to the action for all purposes, which was noted in the case caption. While, in principle, any potential juror could be removed by either the prosecution or defense, a peremptory challenge is not always assured of success. 31 0 obj Before the trial starts, each side identifies and articulates all the issues in their case that 2. That change, according to the Canadian Association of Black Lawyers, was a dangerous misstep. We count on the judgment of our citizen jurors, and that requires them to use their life Letting Indigenous nations chart their path on justice, and maybe even changing Canada's system to reflect those systems, he says, means "taking a new approach to justice.". and non-minority jurors, presumptively dismiss certain types of questions asked of minority In any particular case, however, the judge has the authority to increase the number of peremptory challenges to ensure a fair trial. choose when they have very little information, time, or skill to decide whom will determine the While challenges for cause need an explicit and relatively non-controversial reason for excusing a juror, peremptory challenges do not need any initial explanation. You can have a bias for Italian over Thai food and a bias attorneys and judges use to exercise cause and peremptory challenges. Imagine that the defense counsel, during voir dire, discovers that a potential juror has been fired from a construction job within the last year. peremptory challenges to systematically try and eliminate African-Americans from juries. feelings on the issue. He suggests giving the judge the power to intervene if there is a clear discriminatory pattern to the challenge's use. Bias 20 . While jurors often know about their innocuous biases, they often The court has previously said, inR. v. Kokopenace,that the list of possible jurors don't need to look like a random cross-section of a community, so long as the state takes reasonable measures to allow the broader population to participate in the process. P., Waters, N., Examining Voir Dire in California Administrative Office of the Courts, Judicial responses. Despite relatively recent controversy, peremptory challenges were created in an attempt to root out bias. This article is based on one published earlier in The Jury Expert. Peremptory challenges 3.6 The stated function of peremptory challenges is to provide a safeguard to ensure the jury is impartial and the trial is fair.