By: Sarah Fisher

In late 2021, the State of Arizona became the first in the nation to eliminate peremptory challenges. In an August order, the state supreme court released a modified version of the Arizona Rules of Criminal Procedure. Section 18.5(f) now stipulates that a “party challenging a juror for cause” must establish “by a preponderance of the evidence that the juror cannot render a fair and impartial verdict” (emphasis added). Beginning in January 2022, attorneys in Arizona now carry the burden of proving there is at least a fifty percent likelihood that a juror will be biased in their decision-making. Peremptory challenges, as they are designed to function in a criminal trial, allow for the prosecution and defense to “strike” potential jurors from consideration without showing cause. The intent of this function is to generate a more fair and impartial jury by allowing counsel to remove jurors whom they perceive as biased. In Pointer v. United States, the Supreme Court went so far as to declare that the right to peremptory challenges, although not written in the constitution, is a fundamental right of the accused. Although facially neutral, this practice has fostered widespread discrimination in its application.

Studies have shown that peremptory challenges are used arbitrarily, with race as a driving factor in a lawyer’s decision to strike. Jurors have been stricken for arbitrary reasons such as “unkempt hair.” Despite efforts to prevent peremptory strikes as a method of discrimination, see Batson v. Kentucky (holding that pretextual discrimination against black jurors is unconstitutional), biased juries continue to have major implications in criminal trials, especially those involving indigent defendants and defendants of color. For example, in Maricopa County criminal trials during 2019, prosecutors were three times more likely than the defense to use a peremptory challenge to eliminate a prospective Black juror. This is especially alarming considering that Black and Hispanic people in Maricopa County are disproportionately charged with crimes, and given longer jail sentences and higher criminal fines than their White counterparts. Only six percent of Maricopa County’s population is Black but in 2019, eighteen percent of the cases filed were against Black people. As Justice Thurgood Marshall wrote in his concurring opinion in Batson, ending discrimination in the jury selection process can only be accomplished by complete elimination of the peremptory challenge.

The nation is watching as Arizona delves into a new era of progressive criminal justice. Many, however, are skeptical about whether this will have the intended equalizing impact that the state supreme court anticipates. The largest opposition comes from litigators on both sides. Some defense attorneys believe that eliminating the challenges will prevent attorneys from removing jurors who appear to harbor bias or disdain toward their clients. Others believe that recent progress by the Supreme Court in the realm of criminal justice will insulate the defendants from a potentially biased juror. In Ramos v. Louisiana, the Court established the requirement of a unanimous jury verdict in all criminal trials. It is unclear what the effect will be on Arizona defendants.

As the state of Arizona moves forward in its efforts to combat inequity, other areas of reform are moving to the forefront. Improving jury selection, specifically, is a major area for growth in the continued struggle towards a more efficacious and impartial criminal justice system. Indigent defendants, as well as low-income prospective jurors, will benefit from a system that pays jurors a livable compensation while they take leave from their normal jobs. Inability to leave a paying job necessarily eliminates potential jurors who are not independently wealthy. Moreover, potential jurors are found using voter registration files and motor vehicle records which tend to include more White people.

As Arizona embarks on this new experiment of criminal procedure, attorneys and the judicial system at large must be vigilant in assessing whether it will create a fairer jury selection process or if it will worsen the conditions for indigent and minority defendants facing trial.

Sarah is currently a 2L at Arizona State University’s Sandra Day O’Connor College of Law. After passing the bar, she hopes to work in criminal defense. Within the topic of social justice, her interests include criminal justice reform, wrongful convictions, and advocating against capital punishment. Outside of the law, Sarah enjoys backcountry camping, trying (and mostly failing at) new recipes, and overindulging in political podcasts.