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January 22, 2014
Viewpoints: Peremptory challenges ensure fairness in criminal trials

courthouse.JPG(Jan. 22 - By Dean Flippo and Winston Peters, Special to The Bee)

Each year, prosecutors and defense attorneys who practice in our state courts are charged with the responsibility of empaneling fair and impartial juries in criminal trials. In choosing a jury, each party is allowed to exercise 10 peremptory challenges, in which attorneys may remove a juror without stating a reason. Senate Bill 794, which is headed for the Senate floor this week, would reduce the number of peremptory challenges in misdemeanor cases from 10 to five.

While prosecutors and defense attorneys are rarely on the same side, we stand together on opposing SB 794 because it hurts everyone's right to a fair trial. Reducing the number of challenges will also result in less diverse and less informed juries, which will lead to verdicts that do not reflect the conscience of our communities. Our organizations, which collectively represent more than 8,500 California prosecutors and defense attorneys, believe that SB 794 will jeopardize just outcomes by making it more difficult to select a fair and unbiased jury that represents a broad cross-section of the community, a right that is guaranteed by our Constitution.

The U.S. Supreme Court has said that peremptory challenges "are a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury." This practice of allowing peremptory challenges in this country dates back to colonial times when the sheriff often selected jurors who were partial to the king of England. Peremptory challenges were used as a mechanism to remove jurors who were biased against the accused but did not meet the legal requirements for removal.

SB 794, authored by Sen. Noreen Evans, D-Santa Rosa, is sponsored by the California Judges Association, which argues that reducing the number of peremptory challenges will "save the courts money without reducing justice" and result in shorter trials. We disagree.

First, if the number of peremptory challenges is limited, the integrity of the system will suffer. In addition to removing jurors who the parties suspect are biased, peremptory challenges are used to dismiss jurors who do not want to serve but have not been excused by the judge for legal cause. Such jurors are less likely to pay close attention to the evidence and arguments. As a result, the verdicts they render are less reliable.

Second, SB 794 won't save time. It will increase the burden on the attorneys to show that a juror should be removed for cause and will make jury selection longer, not shorter. Questioning jurors will take more time, because with fewer peremptory challenges, both prosecutors and defenders will have to ask more questions to establish that a juror is biased.

Third, SB 794 won't save money. The proponents claim that the measure will result in "less paper, less postage, fewer jurors to pursue for not appearing, less physical infrastructure to hold potential jurors." These so-called cost savings are questionable at best. Juror summons would still have to be issued for the same number of people, since there is no way of knowing how many trial jurors are needed in misdemeanor and felony cases before jurors are summoned. And any cost savings recouped from paring down peremptory challenges would surely be lost through a more drawn out jury selection process.

In our view, SB 794 threatens the fundamental right to a fair trial. The constitutional right to an impartial jury is the heart of our legal system, and is too important to be diminished.

Dean Flippo is the president of the California District Attorneys Association. Winston Peters is the president of the California Public Defenders Association.