Put More Than 20 Years Of Courtroom Experience To Work For You

California Considers Eliminating Peremptory Challenges In Jury Selection

On Behalf of | Mar 13, 2021 | Legal News Links

For those that don’t know how a jury is selected in a criminal case in Montana (and in general terms in federal and state courts around the county) I will describe the process.  First there is a group of people selected out of the driver’s license and voter rolls of the jurisdiction of the court.  For example for a city court case, you have to live in the city, in the district or justice court, you have to live in the county, in federal court it is a regional area (So jurors sometimes drive five hours or more in federal trials).

The number of potential jurors varies based on the nature of the trial.  The judge will ask the potential jurors questions and the attorneys from each side get the opportunity to ask questions.  Some jurors get eliminated because of health or other reasons, some can be eliminated for “cause” which means the communicate some kind of bias (For example if they believe police over a lay person simply because they are police, or in the alternative they are less likely to believe police simply because of their occupation, or they may have been a victim of a similar crime in the past, or they may express hostility to the particular law enforcement officer which happens in the smaller communities sometimes) such people can be removed from the pool in a criminal trial.

There are a number of reasons to remove someone for cause.

The final way to remove jurors is the peremptory challenges.  Each side gets a set number of challenges that are used without giving an explanation usually.  There is what’s called a Batson challenge which is one side accusing the other of striking people based on race, gender or something similar, in which point the attorney has to explain why they are removing the jurors that are challenged and if they are unable to articulate a reason, it can lead to a mistrial.

I don’t support getting rid of these challenges.  Often there is a juror that you can tell by body language is hostile to the defense, but that isn’t grounds for removing them for cause.  There has been a concerted effort to narrow the ability of ability of attorneys and their ability to question and choose the jurors which I see as a direct threat to an individual’s right to a fair and impartial jury deciding their fate.

Here is a link to the California law being considered.