HAS THE "LAST PETAL" FALLEN? BEAUTY OF THE MODERN JURY TRIAL AND THE BEAST KNOWN AS THE PEREMPTORY CHALLENGE.

• Author: Moeller, Alexa B.

1. INTRODUCTION

   In the beloved Disney classic Beauty and the Beast, an enchantress arrives at the princes' glamorous castle during a party to escape a storm outside. (1) As the prince was repulsed by the enchantress' witch-like appearance, he turned her away and told her to go home. (2) Warning the prince not to be deceived by outward appearances, the enchantress condemned the handsome prince to live with the physicality of a monstrous beast because she has seen something truly ugly on the inside. (3) The catch was simple: if the beast can learn to love another and be loved in return, the spell would be broken. (4) The timeliness of the beast's fate rested upon a single rose. (5) If the last petal fell before the beast could find the love in his heart, he and everyone in his castle would remain cursed for the rest of their days. (6) Wanting to prolong the wilting of the flower, the Beast placed the rose in a bell jar to preserve it. (7)

   Like the Beast, the modern legal system, particularly the modern jury trial, has slowly started disenchanting those who waltz through courthouse doors. (8) From voir dire to closing arguments, important pieces of evidence and individual rights fall through the cracks created by administrators, judges, and attorneys. (9) Much like the enchanted rose in Beauty and the Beast, the modern legal system has placed peremptory challenges in an airtight glass bell jar as if to preserve a dying flower. (10)

   Peremptory challenges are "[o]ne of a party's limited number of challenges that do not need to be supported by a reason..." (11) Peremptory challenges are the quiet but calculated sibling of challenges for cause. (12) Contrary to challenges for cause, peremptory challenges do not require any sort of justification and are done in private by the attorneys. (13) It took the Court until 1986 in Batson v. Kentucky to decide peremptory challenges may not be used against a juror based on his or her race. (14) Critics of peremptory challenges go so far as to say peremptory challenges are contrary to the otherwise impartial idea of juries and jury selection. (15)

   This comment asserts that peremptory challenges and the Batson standard are shedding their "last petals" and are thus outdated and unnecessary in the modern legal system. (16) As the world evolves and progresses, so must the way the legal system is administered. (17) This comment first discusses the history behind peremptory challenges in both the United States and South Dakota. (18) Second, this comment presents legal thought on the impact of implicit biases in the modern criminal justice system and illustrates how attorneys do not possess a magical mirror for which to see deep into the subconscious of jurors--in reality, attorneys are no better at detecting implicit biases and making determinations based on those biases to use peremptory challenges on potential jurors. (19) Finally, this comment suggests changes for South Dakota's circuit courts and ways to "waltz" South Dakota's voir dire processes into the modern day. (20)

2. BACKGROUND

   1. TALE AS OLD AS TIME: THE HISTORY OF PEREMPTORY CHALLENGES

      The peremptory challenge was not born in the United States; it is a practice the United States adopted from the European justice system. (21) However, before there could be peremptory challenges, history had to first establish jury trials. (22) William the Conqueror was one of the first rulers to use trials in England. (23) William the Conqueror established three different trial practices: trial by combat, trial by ordeal, and trial by jury. (24) While they sound similar in nature, trial by combat and trial by ordeal are entirely different concepts. (25) A trial by combat is also known as a trial by battle, meaning two individuals would fight (usually to the death) to settle an issue. (26) A trial by ordeal, on the other hand, came from practices of torture to force those accused of a crime to tell the truth. (27) In contrast to both a trial by battle and a trial by ordeal, a jury trial historically was similar to the jury trial recognized today. (28) Instead of fighting to the death or being subjected to torture at the hands of the Crown, the accused could present their cases before a jury of their peers and the jury would determine whether the defendant was guilty of the crime. (29)

      As time went on and jury trials became more popular in England, the peremptory challenge was born. (30) Peremptory challenges were first known to be used in capital cases where the Crown had unlimited peremptory challenges, making the monarchy "royally infallible." (31) Noticing blatant one-sided-ness of this practice, English courts in 1300 began giving defendants an opportunity to use their own peremptory challenges. (32) Peremptory challenges were thus woven into the fabric of English common law as they are understood today. (33)

      While the United States continues to foster the practice, English courts have abandoned the peremptory challenge. (34) The English have done away with peremptory challenges for a number of reasons, but time showed how infrequently these challenges were used. (35) This dwindling process began in 1530 when Parliament originally awarded the Crown thirty-five peremptory challenges in capital cases and the defense twenty. (36) Parliament noticed that neither the Crown nor the defense ever exhausted their allotted numbers of peremptory challenges--in fact, both sides rarely used peremptory challenges at all. (37) As a result, Parliament passed the 1977 Criminal Justice Act, decreasing the number of peremptory challenges to only three. (38) The Criminal Justice Act of 1988 abolished peremptory challenges entirely. (39) English courts determined that challenges for cause still manage to complete the voir dire process fairly, without the mess peremptory challenges tend to leave behind. (40)

   2. SONG AS OLD AS RHYME: PEREMPTORY CHALLENGES IN THE UNITED STATES

      Like many other legal traditions, the United States adopted the jury trial--and the peremptory challenge--from English common law. (41) Though the Framers discussed putting a provision into the Constitution explicitly allowing peremptory challenges, they decided this right was implicit in a defendant's right to an impartial jury. (42) Since the Framers did not provide this right explicitly in the Constitution, Congress passed an Act "explicitly afford[ing] the defense thirty-five peremptories [sic] when treason had been charged and twenty challenges in all other capital cases." (43)

      As the American court system evolved, so did the exercise of peremptory challenges. (44) The United States Supreme Court first recognized peremptory challenges in 1887 in Hayes v. Missouri, (45) holding that states had a legitimate interest in removing certain jurors. (46) Only twenty-one years later, the Court in Williams v. Mississippi (47) again recognized the same legitimate interests. (48) Here, the Court held nothing had yet shown that the administration of procedures such as peremptory challenges were evil, "only that evil was possible under them." (49) It would take the Court longer still to address discrimination under the use of peremptory challenges in Swain v. Alabama. (50)

      The Supreme Court of the United States first addressed the racial and discriminatory issues of peremptory challenges and their potential discriminatory effects on African American defendants in Swain v. Alabama. (51) In Swain, an African American defendant charged and convicted of rape challenged his indictment on the grounds that the jury was chosen in an improper manner. (52) The Supreme Court of Alabama affirmed his conviction and held that Alabama laws and jury practices were not inherently discriminatory. (53) The United States Supreme Court granted certiorari and also affirmed the defendant's conviction. (54) After briefly discussing the history of the peremptory challenge and its functions, the Court held that, in order to establish a case of discrimination, there must be an "acceptable degree of clarity" to show "when, how often, and under what circumstances the prosecutor alone has been responsible for striking those... who have appeared on petit jury panels in [a particular] County." (55) This standard and burden on a defendant proved heavy, causing the Court to revisit its opinion on peremptory challenges less than twenty years later. (56)

      In Batson v. Kentucky, the United States Supreme Court found the previous Swain standard was too high a hurdle for defendants to establish a prima facie case for discrimination. (57) Batson was the Court's chance to reexamine and restructure the way in which peremptory challenges based on race may be scrutinized. (58) The African American defendant in Batson was indicted on charges of second-degree burglary, as well as receipt of stolen goods. (59) During the voir dire process, the prosecutor exercised his peremptory challenges to eliminate all four African American prospective jurors, leaving only Caucasian people to serve as a jury of his peers. (60) After the defendant was convicted on both counts within the indictment, he appealed to the Kentucky Supreme Court. (61) The Kentucky Supreme Court affirmed and held that, since the defendant did not "demonstrate systematic exclusion of a group of jurors from the venire," he did not have a constitutional claim for discrimination. (62)

      The Supreme Court granted certiorari and reversed the defendant's conviction, holding that the lower court did not give the defendant a fair opportunity to establish a prima facie case for discrimination. (63) Because the Batson Court was not satisfied with the Swain standard, it fashioned a new standard for establishing a case for discrimination. (64) The Court created a three-step process to establish a prima facie case for discrimination. (65) First, a defendant must show that he or she is a member of a racially cognizable group. (66) Second, a defendant must show that the State used...