NCJ Number
44025
Journal
Yale Law Journal Volume: 86 Issue: 8 Dated: (JULY 1977) Pages: 1715-1741
Date Published
1977
Length
27 pages
Annotation
THE PEREMPTORY CHALLENGE OF PROSPECTIVE JURORS IS EXAMINED IN LIGHT OF A SUPREME COURT FINDING OF THE RIGHT OF CRIMINAL DEFENDANTS TO A JURY SELECTED FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY.
Abstract
THE PEREMPTORY CHALLENGE IS EXERCISED BY PROSECUTORS AND DEFENSE ATTORNEYS FOR ANY REASON, INCLUDING THE GROUP ASSOCIATIONS OF PROSPECTIVE JURORS, AND IS NOT SUBJECT TO JUDICIAL APPROVAL. COURTS HAVE REFUSED TO ACCEPT DEFENDANTS' CLAIMS THAT PROSECUTORS USE THE CHALLENGE TO EXCLUDE RACIAL GROUPS FROM JURIES AND THEREBY VIOLATE DEFENDANT'S RIGHTS OF EQUAL PROTECTION AND DUE PRECESS. IT IS ARGUED THAT THE U.S. SUPREME COURT'S RATIONALE IN DECIDING THAT THE CRIMINAL DEFENDANT HAS A CONSTITUTIONAL RIGHT TO A JURY SELECTED FROM A REPRESENTATIVE CROSS-SECTION OF THE COMMUNITY, WHEN APPLIED TO THE ACTUAL COMPOSITION OF THE JURY, MODIFIES THE ROLE OF THE PEREMPTORY CHALLENGE BY PROHIBITING ITS EXERCISE AGAINST PROSPECTIVE JURORS ON THE BASIS OF THEIR GROUP ASSOCIATIONS. A DISTINCTION IS DRAWN BETWEEN THE GROUP BIASES OF PROSPECTIVE JURORS AND SITUATION-SPECIFIC BIASES, I.E., THOSE RELATING TO THE UNIQUE ASPECTS OF A PARTICULAR TRIAL. IT IS ARGUED THAT THE ROLE OF THE PEREMPTORY CHALLENGE IS PROPERLY LIMITED TO REMOVAL OF PROSPECTIVE JURORS POSSESSING SITUATION-SPECIFIC BIASES. A METHOD OF JUDICIAL CONTROL OF THE PEREMPTORY CHALLENGE IS PROPOSED. THE METHOD IS DESIGNED BOTH TO PREVENT THE USE OF THE CHALLENGE TO EXCLUDE GROUPS AND TO PRESERVE THE POTENTIAL OF THE CHALLENGE FOR REMOVING JURORS WITH SITUATION-SPECIFIC BIASES. THE PROPOSAL IS SUITABLE FOR ADOPTION BY COURTS OR BY LEGISLATURES AS THEY REVISE RULES OF CRIMINAL PROCEDURE. (AUTHOR ABSTRACT MODIFIED).