Peremptory Challenges

Picking a jury is an important moment in a lawsuit. The jurors will decide the outcome of the case, but jurors are not legal professionals, and they come to court with the full array of biases and prejudices that exist in the world.

In most cases, the lawyers for the parties to the lawsuit will be able to ask prospective jurors some brief questions in a process called voir dire. The judge will remove anyone who says that they are biased, but with their fates in the hands of inexperienced strangers, litigants often worry that one or more potential jurors might harbor a bias that is not expressed.

For this, the law allows each side in a lawsuit a fixed number of peremptory challenges. A peremptory challenge is the right of a party to a lawsuit to remove a potential juror without giving a specific reason.

For the parties, peremptory challenges can help them feel more confident that their case will be decided based on the evidence and not bias or prejudice.

But peremptory challenges come with a cost. First, it is not clear that parties can reliably predict who is biased and who is not, and therefore, it may be the litigants who are relying on their own biases and prejudices to exclude fair-minded people from jury service .

Second, to accommodate peremptory challenges, courts must call more potential jurors to make sure that after each side exhausts its challenges, enough people remain to fill out the jury. This wastes the time of people who wouldn’t have to be called to jury service if the courts didn’t need the extra bodies to use up the parties’ the peremptory challenges.

California is now considering reducing the number of peremptory challenges in some criminal cases. Currently, for felony cases, the prosecution and the defense each get 10 peremptory challenges, and for cases involving punishment by death or life in prison, each side gets 20.

For misdemeanors in California (cases where the potential punishment is one year in jail or less), under current law the prosecution and the defense each get 10 peremptory challenges, the same number as for felony cases. The San Francisco Chronicle reports that California is considering reducing the number of challenges for misdemeanor cases from 10 to five.

Potentially, this small change could save a lot of money. According to the San Francisco Chronicle:

The California Judges Association, SB794’s sponsor, says it would save at least $1.2 million a year for the courts and $30 million or more for prospective jurors, their employers and their communities by reducing the number of jurors called for service and the time they spend in court. About 1.5 million Californians report for jury duty each year.

Prosecutors and defense attorneys, however, are united in their opposition to the move. They believe that fewer peremptory challenges would mean more biased juries.

Peremptory challenges are controversial because it is not clear whether they really reduce bias or rather simply waste money and people’s time. If California goes through with the reduction in peremptory challenges, it will be very interesting to see what effect, if any, it has on misdemeanor trial results.