The challenge of peremptory challenges a brief study in the evolution of the law.

• Author: Tringali, Joseph A.
• Position: Florida

It is a day in 13th century England, some 50 years after Henry II, great-grandson of William the Conqueror, held his Assize at Clarendon. At that Assize, Henry had radically altered the legal system of his people. The existing forms of trial--compurgation, ordeal, and combat--were abolished. In their place, the King had created something entirely new: trial by jury. The people were not happy with the change. The old ways were better, they said, because through them God decided their disputes. God, who knew the secrets of every heart and put His hand on every life, would never permit wrong to triumph over right. Now their King was requiring them to be tried by men no better than themselves.

On this particular day, the King's Justice, riding his regular circuit, comes to the shire full cloaked with his royal authority and a local miscreant is brought before him.

"William," the Justice demands, his voice striking terror into the very bones of the defendant and the people gathered around, "now answer me by what device thou camest by this mare; for at least thou canst not deny that she was found with thee, and that thou didst avow her for thine own."

"Sire, I disavow this mare," William replies, "and never saw I her until now."

"Then, William, thou canst right boldly put thyself upon the good folk of this vill that never thou didst steal her."

"Nay, sir, for these men have hearts big against me and hate me much because of this ill report which is surmised against me."

"Thinkest thou, William, that there be any who would commend his body and soul to the devils for thee or for love or hatred of thee? Nay, verily, they are good folk and lawful, and thou canst oust from among them all those whom thou suspectest of desiring thy condemnation."(1)

And so, with the invention of the jury trial, we have the first suggestion of the peremptory challenge: not so much as a means of ensuring fairness but as a sales pitch for a new-fangled idea. Nor should we conclude that the medieval system of criminal justice had advanced very far. Defendants who could not be coaxed into submitting to the "new" form of trial were subjected to peine forte et dure--punishment strong and hard--until they "voluntarily" changed their minds. Peine forte et dure started out as ordinary torture, confinement in a dungeon on stale bread and water "from the water running next to the prison neither from fountain or river," and eventually standardized into piling stones on the defendant's body until the defendant either agreed to trial by jury or was crushed to death.

But one point, at least, cannot be overlooked: The concept of the jury challenge has been around for nearly as long as the concept of the jury itself. It is not a modern fillip brought into being by pop psychologists and self-proclaimed jury experts; rather, it is a thread woven through the warp and weft of our legal system.

Winds of Change

In 1965, Alabama was using a "struck jury" system in which "about 100 people" would be called for service in a capital case. As the U.S. Supreme Court explained in Swain v. Alabama, 380 U.S. 202 (1965), "[a]fter excusals and removals for cause, the veniere in a capital case is reduced to about 75. The jury is then `struck' -- the defense striking two veniremen and the prosecution one in alternating turns, until only 12 jurors remain." The Court refused to examine the prosecutor's reason for exercising challenges and said, "[W]e cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws." But, the Court warned, "If the State has not seen fit to leave a single Negro on any jury in a criminal case, the presumption protecting the prosecutor might well be overcome."

Let Us Leave It to the States

By 1982, pressure for change was building. Two states, California and Massachusetts, had limited the right of an individual prosecutor to exercise peremptory challenges on racial grounds. Then it was New York's turn to enter the fray. In People v. McCray, 57 N.Y. 542, 457 N.Y.S.2d 441, 443 N.E.2d 915 (1982), the New York Court of Appeals considered a case in which a young African-American had been convicted of the armed robbery of a white victim. During jury selection, the...