On August 30, 2021, the Arizona Supreme Court instituted a landmark rule change that made Arizona the first state in the country to abolish the use of peremptory challenges in criminal and civil trials. Challenges to potential jurors at the trial stage of an action are utilized to allow for the litigants to secure a fair and impartial jury, which is a paramount necessity of our justice system. Trial attorneys are afforded an unlimited number of challenges for cause to excuse a potential juror from the proceeding. A challenge for cause is based upon the answers provided by a prospective juror during the voir dire process where those answers exhibit that the juror cannot be completely fair and impartial to one party or the other. Peremptory challenges had been adopted by every state in order to allow trial attorneys to excuse potential jurors – not based upon a standard of fairness or impartiality — but based upon a “gut” feeling more than anything else.
The action taken by the Arizona Supreme Court goes into effect on January 1, 2022. The Arizona Rules of Criminal Procedure previously afforded the prosecution and criminal defendant between two and ten peremptory challenges, depending on the severity of the criminal charge. The Arizona Rules of Civil Procedure previously afforded a litigant four peremptory challenges. However, now the only challenges that can be advanced will be those that challenge the jurors based upon a lack of fairness and/or impartiality.
Peremptory challenges, that allowed for trial attorneys to indiscriminately exclude jurors from the trial process, came into effect after the Civil War when African-Americans were included in the jury process for the first time. An objection to peremptory challenges has always been advanced that such challenges allow for discrimination in the jury selection process. As a result of the potential for discrimination permitted by the use of peremptory challenges, the U.S. Supreme Court issued its ruling in the case of Batson v. Kentucky, which determined that race-based peremptory challenges constituted a violation of the Equal Protection Clause of the 14th Amendment. The ruling in Batson has since been extended to peremptory challenges based upon gender, ethnic background and sexual orientation. If an objection is raised based upon Batson, the party utilizing the peremptory challenge must present a non-discriminatory basis for the challenge.
It is interesting to note that, while no other states have abolished the use of peremptory challenges, England did so in in 1988 and Canada did so in 2019. The abolishing of peremptory challenges will have the direct effect of doing away with Batson arguments and appeals based upon the improper use of peremptory challenges by a party at trial. Additionally, no peremptory challenges will also reduce the number of jurors necessary for the jury selection process, thereby conserving judicial resources for trial. Finally, the practical effect of the abolishment of peremptory challenges may be that judges will scrutinize challenges for cause with a more liberal eye in order to make sure that there is not the slightest question as to the fairness or impartiality of a potential juror.
As a board certified civil trial attorney with more than 30 years of experience, I have no problem with the abolishment of peremptory challenges. Generally speaking, any juror that is potentially harmful to your position can be exposed based upon the careful questioning of the prospective jurors during the voir dire process. This decision by the Arizona Supreme Court will place more emphasis on the jury selection process. However, it has always been a critical aspect of the trial process.1 I have often found that the potential jurors that I have lost as a result of opposing peremptory challenges were more beneficial to our potential jury then the jurors that I excused were detrimental to our potential jury. It only takes the first domino to fall to start the rest of the dominos to follow suit. So, is Arizona the first domino? Maybe so.
1 “Trial Essentials: Keys to Not Losing your Jury Trial Before the First Witness is Called”