Academic journal article South Dakota Law Review

Has the "Last Petal" Fallen? Beauty of the Modern Jury Trial and the Beast Known as the Peremptory Challenge

Academic journal article South Dakota Law Review

Has the "Last Petal" Fallen? Beauty of the Modern Jury Trial and the Beast Known as the Peremptory Challenge

Article excerpt


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)



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. …

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