Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges

Abstract

A fundamental tenet of the American justice system is that an impartial jury is an essential component of a fair trial. In addition to a litigant's right to have his or her case decided by jurors free of bias or prejudice, individual citizens enjoy a separate right to be considered for jury service without the taint of improper discrimination. Scholars have called for the elimination of peremptory challenges in jury selection, arguing they lack utility and are exercised in an unconstitutionally discriminatory manner.

No one, however, has proposed that prosecutors should voluntarily waive peremptory challenges even if the general practice is retained. A prosecutor's ethical duty goes beyond advocacy; unlike other lawyers, the prosecutor is uniquely duty-bound to "seek justice." Prosecutors' use of peremptory challenges is an exercise of discretion to be evaluated against this distinct ethical standard. A prosecutor cannot deny that peremptory challenges may be exercised in violation of the Equal Protection Clause at least some of the time by some of the lawyers in her office. In addition, prosecutors cannot always elicit adequate information about prospective jurors to form rationally-based reasons for excusing jurors peremptorily, which raises a separate concern about a prosecutor's exercise of peremptory challenges as an irrational, arbitrary, and capricious governmental act.

Peremptory challenges are not themselves constitutionally guaranteed; rather, they are a prophylactic safeguard of the constitutional right to an impartial jury, subject to cost-benefit scrutiny. On the one hand, to what extent does the practice risk unconstitutional discrimination, damaging both the actual and perceived fairness and reliability of the prosecution process? On the other hand, to what extent does the practice actually increase the likelihood of a just conviction? In balancing the two, is the benefit of one outweighed by the detriment to the other?

In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges.

Keywords: criminal procedure, prosecution, jury selection, voir dire, jurors, juries, peremptory challenges, Batson v. Kentucky, prosecutorial ethics, equal protection