Trial by Transformation: An Analysis of Arizona's Elimination of Peremptory Challenges

Abstract

Trial by jury is one of the fundamental tenets of the U.S. justice system, enshrined by the Constitution. Each year, millions of Americans are summoned to serve on a jury, but only a fraction of those individuals are actually impaneled due to a process known as voir dire. In voir dire, lawyers can exercise either (1) for cause challenges, which require that lawyers provide a reason for dismissing a prospective juror or (2) peremptory challenges, which do not require any reasons to be provided.

Historically, peremptory challenges have been shown to be used in a discriminatory manner, particularly on the basis of race. As a result, prospective jurors may be unfairly removed from juries, which can have negative impacts on (1) the prospective juror, (2) the defendant, and (3) the community at large. Current legal protections against discriminatory peremptory challenges, namely Batson challenges, have not been sufficient. As a result, this matter has been taken up at the state level, resulting in some states passing reforms to improve these legal protections.

Arizona became the first state to eliminate this practice entirely in 2022. Since this decision is still fairly recent, current literature on this topic has not yet looked at the impact this decision has had on the courts. My thesis attempts to fill this gap by investigating three main questions: (1) How and why did the decision to eliminate peremptory challenges come to be?; (2) What effect does eliminating peremptory challenges in jury selection have?; and (3) How does eliminating peremptory challenges compare to other possible jury reforms? To address the first two questions, I conduct interviews with lawyers, judges, and policy analysts in the state of Arizona to qualitatively assess (1) motivations behind this decision, (2) reactions of lawyers to this decision, and (3) the observed impact of this decision. Based on their responses, I compare eliminating peremptory challenges to other types of jury reforms to address the third question.

From my interviews, I found: (1) that this decision was possible because of COVID-19 measures already put in place, (2) that reactions largely fizzled after initial opposition and seeing some benefits of this decision in certain cases, and (3) that the impact has been largely positive when considering both qualitative accounts and preliminary quantitative data. This decision has led to (1) increased diversity on juries, (2) stable hung jury rates, and (3) increased efficiency.

The main points of concern that were expressed include: (1) potentially biased outcomes due to the reduced ability to eliminate someone from the jury, (2) disruption of established judicial protocols, and (3) disruption of a perceived constitutionally supported right.

After addressing these points of concern and exploring other possible solutions to this issue, I recommend that other states should consider eliminating peremptory challenges as well. In addition, while some states may want to wait for more data to be released from Arizona, I also recommend that Arizona and other states should (1) continue collecting data on jurors, (2) have judges allow for expanded voir dire when necessary, and (3) continue building out juror support such as increased pay.

Ultimately, eliminating peremptory challenges effectively prevents them from being used in a discriminatory manner and has been seen to increase diversity in some areas without severe negative consequences. Elimination is an important step toward building more trust and civic engagement in the legal system.