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Jury selection in California is about to get more complicated, with a new rule coming into effect in the new year that will make it harder for lawyers to remove potential jurors from the jury roll for fear that too many ‘between them act in a partial way.
Typically, each party is allowed a certain number of “peremptory” strikes, which means they can eliminate a juror without giving a reason, but the Supreme Court’s decision in Batson v. Kentucky has banned the use of such strikes to screen potential jurors on the basis of race. .
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California new rule – the latest in a growing trend of jury selection reform – extends to “conscious or unconscious bias” against several other protected classes. It allows opposing attorney to challenge peremptory strikes and takes Batson much further, attributing bias to many of the reasons a lawyer might give to justify their decision.
“A peremptory challenge for any of the following reasons is presumed invalid unless the party exercising the peremptory challenge can prove by clear and convincing evidence that an objectively reasonable person would regard the justification as unrelated to race, origin ethnicity, sex, gender identity, sexual orientation, national origin or religious affiliation, or perceived membership in any of these groups, and the reasons given relate to the juror’s ability potential to be fair and impartial in the matter, ”states the rule before listing 13 potential candidates. of the reasons for striking off a juror which he supposes to be rooted in a prejudice.
These include the removal of a juror because of them “[e]expressing mistrust or negative experience with law enforcement or the criminal justice system “or” a belief that law enforcement officials engage in racial profiling or that criminal laws have been applied in a discriminatory manner ” .
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The rule also opposes the removal of jurors for “[h]have a close relationship with people who have been arrested, arrested or convicted of a crime ”, for having children out of wedlock, not being of English mother tongue, their dress or personal appearance, lack of employment , receive government benefits, etc. .
The rule applies to cases where jury selection begins on or after January 1, 2022.
California isn’t the first to take such action, and it probably won’t be the last. The rule is based on the state of Washington General rule 37, which has the stated purpose of challenging “inappropriate bias” in jury selection. California and Washington allow not only opposing counsel, but the court to challenge peremptory strikes for this reason.
“This revolutionary rule for jury selection will reduce the damage done by racial and ethnic bias to the integrity of our justice system and to communities of color,” said Nancy Talner, lawyer for ACLU-Washington at the adoption of his state rule in 2018.
Arizona has went even further, completely eliminating peremptory challenges with a clean rule that takes effect at the start of the new year.
Connecticut, Kansas, Massachusetts, New Jersey, New York, North Carolina, Oregon, and Utah have all considered rules like Washington’s or abolishing peremptory strikes like Arizona, but they don’t. did not come to a final conclusion.
The Colorado Supreme Court rejected the adoption of a rule similar to Washington’s.
While all states considering or enacting such rules cite the value of addressing explicit or implicit bias in jury selection, New Jersey criminal defense attorney and former Morris County chief prosecutor Bob Bianchi, believes that the restrictions on peremptory challenges fail to take into account the “reality of the courtroom and hamper the ability of lawyers – and their clients – to select impartial juries.”
Bianchi is on a committee of the New Jersey Bar Association that opposes efforts to eliminate or severely limit peremptory challenges in his state. Addressing the new California law, Bianchi said he actually agreed that most of the reasons for dismissing a juror that are presumed to be one-sided have no place in the search for an impartial jury. He takes issue with the idea, however, that it is presumed inappropriate to strike a juror on the basis of negative experiences or feelings towards law enforcement, but not positive feelings.
“What does this really mean? If a person says they hate the police and doesn’t trust a word they say, can’t that person be fired? Isn’t that a bias against the state? ” He asked. “And why isn’t it balanced to include those who have a positive experience with the cops or the justice system?” “
Bianchi said that having a system designed to prevent people with negative views on law enforcement from receiving the same treatment as others, “is inherently unfair and unbalanced at first glance and defies the common sense “and” specifically prohibits things in favor of the defense only. “
Bianchi acknowledged that allowing lawyers to explain their reasoning if their peremptory strike faces an objection helps alleviate the problem.
“But, I don’t think we should have to do this with preemptive challenges,” he said. Bianchi also noted that “knowing the judges, most of the time, a lawyer will be unable to meet the burden of winning by a clear and convincing standard.”
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While believing that these rules are tilted in favor of the defense, Bianchi also pointed out that they take away some of the little power a defendant might have during his trial.
“This stage of the proceedings is the only time an accused has a meaningful opportunity to participate in who will truly be a jury of his peers,” he said. “If a client says ‘hit this person’, do we now have to ask the client who has the right to silence to disclose their reasoning? “