by Brit Simon
If you have ever watched an episode of Law & Order or fulfilled your civic duty to sit on a jury, you are probably familiar with the process of jury selection. The attorneys ask questions of the jurors in an effort to learn more about their backgrounds, identify any potential biases or conflicts, and eventually determine which individuals will sit on the jury itself. For centuries, attorneys have had two options with respect to removing jurors from the list of potential candidates – for-cause challenges and peremptory strikes. The former allows an attorney to strike a juror if they can cite to a specific reason why the juror should not sit on the jury based upon a lack of fairness or impartiality. The second option, the peremptory strike, allows an attorney to strike a juror without having to provide a reason.
Historically, The Arizona Rules of Criminal Procedure afforded the prosecution and criminal defendant between two and ten peremptory challenges, depending on the severity of the charges. The Arizona Rules of Civil Procedure previously afforded a litigant four peremptory challenges. However, the jury selection process in Arizona is about to change significantly. On August 30, 2021, the Arizona Supreme Court instituted a landmark rule change that made Arizona the first state in the country to abolish the use of peremptory challenges in criminal and civil trials. The rule change will go into effect on January 1, 2022, and thereafter, the only challenges that can be advanced will be those that challenge the jurors based upon a lack of fairness and/or impartiality.
The proposal to end the practice of peremptory strikes was set forth by two state appellate judges who argued that peremptory strikes propagated bias against potential jurors on the basis of sexual orientation, disability, gender, race, or ethnicity. However, their proposal was not particularly well received by other members of the legal community in Arizona. Notable organizations such as The State Bar of Arizona, the Arizona Attorney General’s Office, the Mutual Insurance Company of Arizona, the American Board of Trial Advocates, and others all spoke out in staunch opposition to the rule change. The motivation of most, if not all, of these organizations was rooted in the argument that the abolishment of the peremptory strike rule would result in the empanelment of juries that were not fair or impartial.
Despite the majority opposition to the proposed rule change, the Arizona Supreme Court adopted the proposal and set into motion a change that will undoubtedly have an impact on jury trials across the state. To what degree, however, is a question that will be answered in the months and years to come.
The attorneys at Thomas Rubin & Kelley, PC have significant experience with jury trials and will continue to monitor the effect of this rule change on an ongoing basis. If you have any questions about the abolishment of the peremptory strike in Arizona, or if you require any assistance as to any of your Arizona litigation claims, please do not hesitate to contact Brian Rubin (brubin@trkfirm.com) or Michael Kelley (mkelley@trkfirm.com).