Jury Selection as Election: A New Framework for Peremptory Strikes

By Leshem, Ela A. | The Yale Law Journal, July 2019 | Go to article overview

Jury Selection as Election: A New Framework for Peremptory Strikes


Leshem, Ela A., The Yale Law Journal


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. …

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