Jury Selection as Election: A New Framework for Peremptory Strikes.

Author:Leshem, Ela A.

NOTE CONTENTS INTRODUCTION 2358 I. THE STATUS QUO 2361 A. Background 2362 B. Under Siege 2363 C. The Impartiality Account 2368 II. UNRESOLVED PUZZLES 2370 A. Puzzle One: Sticky Default 2370 B. Puzzle Two: Lack of Required Reasons 2375 C. Puzzle Three: Allocations 2378 III. THE DEMOCRATIC LEGITIMACY ACCOUNT 2384 A. Election Analogy 2385 B. Democratic Jury 2392 C. Historical Resonance 2397 IV. RESOLVED PUZZLES 2402 A. Explaining the Default 2402 B. Explaining the Lack of Required Reasons 2403 C. Explaining the Allocations 2404 V. REFORMS 2406 A. Eliminate State Peremptories 2406 B. Require State Reasons 2410 C. Increase Peremptories in Liberty-Threatening Civil Trials 2410 CONCLUSION 2411 INTRODUCTION

Why should parties to a trial have peremptory strikes? And why should the trial system retain peremptory strikes, even though peremptory strikes are prone to discriminatory misuse?

The standard response given by judges and scholars defending the status quo is that peremptory strikes (or peremptories) serve the value of impartiality. (1) Peremptories allow parties to eliminate potential jurors who hold extreme views on either side of the legal dispute. The resulting jury, shorn of biased jurors on both sides, is thus more impartial.

But impartiality cannot fully justify the practice of peremptories, for at least three reasons. (2) First, impartiality cannot justify the choice to retain peremptories after Batson v. Kentucky, (3) instead of expanding strikes for cause. (4) Second, impartiality cannot justify the legal community's failure to subject peremptories to a requirement that parties routinely give reasons for their strikes. (5) Third, impartiality cannot justify the varying numbers of peremptories that both the state and federal systems assign to parties, depending on the severity of the alleged offense and the requested punishment. (6) Nor can impartiality justify that, in the federal system and in some state courts, the prosecutor has fewer peremptories than the defendant. (7)

This Note argues that, in addition to impartiality, peremptories serve the value of democratic legitimacy. (8) Peremptories grant parties a say in who presides over them at trial. This say renders the trial's coercive power over the party that has been involuntarily haled into court more legitimate than it otherwise would be. Jury selection through peremptories is thus analogous to the election of legislators through votes. (9) Standard democratic accounts of the jury focus on how the jury legitimates the trial by representing the people and by involving the people in lawmaking. (10) This Note takes a different tack, offering the further insight that the jury advances the legitimacy of the trial by representing the parties themselves. On this latter account of representation, jurors are trustees of the parties, but not delegates. (11) That is, jurors owe it to the parties who indirectly selected them through peremptories to wield their powers justly, but not to effectuate the parties' will.

In practice, my democratic legitimacy account of peremptories may come into conflict with existing democratic theories of the jury. Existing theories demand that every citizen be given an equal opportunity to serve on a jury and that the jury represent a fair cross section of the population. (12) My account demands that parties subject to the trial's coercion be given a say in selecting the jury. But giving parties a say in the form of peremptories diminishes citizens' equal opportunity to serve on a jury and the jury's representation of a fair cross section--especially when the parties use their peremptories in discriminatory ways.

My account helps us to understand that our current system of peremptories seeks to strike a balance between complementary yet conflicting demands of democratic legitimacy. (13) One way to view this balance is that the overarching value of the trial's democratic legitimacy has both an equal protection dimension and a due process dimension. The equal-opportunity and fair-cross-section demands give rise to an equal protection interest. My account's demand that the parties be given a say in choosing their jurors gives rise to a due process interest. Our current system prioritizes the equal protection interest at the initial stage when randomly selecting jurors by lot. It prioritizes the due process interest at the later stage when granting parties peremptories. And it seeks to reduce direct conflict between these interests through Batson's prohibition of discriminatory peremptories.

The democratic legitimacy account also helps us make sense of our current system in other ways. Understanding peremptories as serving democratic legitimacy, akin to the election of legislators, justifies the three formerly unsupported features of our peremptories practice. (14) First, it justifies the decision to retain peremptories as a default. (15) The legitimation value of jury selection would be lost if we eliminated peremptories in favor of expanded strikes for cause because elimination would reduce the parties' control over the judicial process. Second, the democratic legitimacy account justifies our resistance to requiring parties to disclose their reasons for peremptories. (16) As in legislative elections, we do not ask parties to disclose the reasons for their selection because the selection is about giving parties a say in the process, regardless of whether it leads to reasonable choices. Third, the democratic legitimacy account justifies the additional peremptories that every jurisdiction affords as the severity of the alleged offense increases. (17) More peremptories are allocated to parties at trials of more severe offenses because the greater the threat of punishment, the greater the need to legitimate the court's coercive power.

But my account of democratic legitimacy not only provides justifications for the status quo; it also calls for reforms. (18) This is because our current peremptories practice does not fully live up to the value of democratic legitimacy that partly supports it. In particular, my account urges three reforms.

First, the state should not receive any peremptories. (19) Prosecutors in criminal proceedings and federal, state, and territorial governments in their own courts' civil proceedings should not have peremptories. They have not been involuntarily haled into court. (20) And they do not advocate on behalf of an individual to whom we would need to legitimate coercive state power. Rather, they advocate on behalf of the state and wield its coercive power. If complete elimination of state peremptories turned out to undermine the jury's impartiality, then the democratic legitimacy account would still demand that we consistently give the state fewer peremptories than other parties. In the past, such asymmetric allocations of peremptories were widespread. (21) One of the distinct advantages of the democratic legitimacy account is that it can make sense of these historical allocations, whereas the impartiality account cannot. (22) But starting in the mid-nineteenth century, most jurisdictions began to increase prosecutorial peremptories and their asymmetric allocations gradually gave way to symmetric allocations. (23) The democratic legitimacy account would require resisting this trend and expanding asymmetric allocations of peremptories insofar as they still exist.

Second, if we reduced rather than eliminated state peremptories, the democratic legitimacy account demands that the state--unlike other parties--explain its peremptories. (24) After all, the state is exempt from the trial's coercive power and does not require an unconditional say in choosing jurors.

Finally, the democratic legitimacy account suggests that we should give more peremptories to civil parties threatened with deprivations of liberty than to civil parties threatened with deprivations of property. (25) In particular, we should increase the number of peremptories for defendants in involuntary-commitment proceedings.

These three reforms would effectuate not only the value of democratic legitimacy, but also the constitutional value of equal protection of the laws. On the whole, they would lead to a reduced number of peremptories and an increased need for reason-giving, which would diminish parties' opportunities to use peremptories in discriminatory ways. Moreover, the reforms would be compatible with the goal of selecting an impartial jury. This compatibility becomes apparent once we abandon the impartiality account's undue focus on the median juror and conceive of an impartial jury instead as one that contains no jurors who should have been struck for cause. (26)

The Note proceeds in five Parts. Part I provides an overview of peremptories and presents the impartiality account that currently informs both their defenders and critics. Part II argues that the impartiality account offers at best an incomplete account of the normative purpose of peremptories. Part III proposes a new account of peremptories. It argues that peremptories facilitate democratic legitimacy and situates this account in the context of democratic and historical accounts of the jury. Part IV highlights the account's ability to justify three central features that the impartiality account was unable to justify. Part V analyzes departures from my democratic legitimacy account in current practices and calls for their reform.


    This Part offers an overview of the current practices and defenses of peremptories. It lays the groundwork for evaluating the dominant impartiality account and supplementing it with my democratic legitimacy account in subsequent Parts. Section I.A historically situates us by providing a brief background on peremptory strikes before and after Batson. Section I.B enters the existing scholarly debate over peremptories by summarizing the main criticism and reform proposal of the post-Batson status quo. Finally, Section I.C...

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