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Arizona's Supreme Court Eliminates Peremptory Challenges

RACHEL MARTIN, HOST:

To Arizona now - starting next year, lawyers there will no longer be able to dismiss potential jurors before trial without stating a reason why. Arizona will be the first state to eliminate so-called peremptory challenges under a groundbreaking rule change approved recently by the Arizona Supreme Court. Supporters say it's a move designed to combat systemic discrimination that has blocked people of color from serving on juries. NPR's Cheryl Corley reports.

CHERYL CORLEY, BYLINE: Jury selection is often like a chess game between prosecutors and defense attorneys.

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ERIC NELSON, BYLINE: What I'd like to do, sir, is ask you kind of a series of general questions.

CORLEY: Eric Nelson was the defense attorney in the trial of former Minneapolis police officer Derek Chauvin, who was convicted earlier this year of the murder of George Floyd. There was intense scrutiny as attorneys began the process of trying to find the people who would be the best fit for their side of the case.

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NELSON: You as a juror are supposed to start at kind of ground zero, that being Mr. Chauvin is presumed innocent.

UNIDENTIFIED PERSON: Yes.

NELSON: All right. Can you do that?

UNIDENTIFIED PERSON: I would like to think I could.

CORLEY: Attorneys can ask a judge to remove a prospective juror for cause if they can't be impartial. There are also peremptory challenges. Attorneys have a set number of times they can dismiss people without having to say why.

PETER SWANN: There is no other means of skewing a jury other than the peremptory strike.

CORLEY: That's Peter Swann, the chief judge of the Arizona Court of Appeals. He and his colleague, Appellate Judge Paul McMurdie, filed a petition asking the Arizona Supreme Court to end the use of the challenges.

SWANN: Peremptory challenges are designed to allow lawyers to practice intuition. But intuition can often be based on stereotypes and unconscious forms of bias.

CORLEY: And they've been controversial ever since they were invented in the United Kingdom in the 19th century. The U.K. and Canada no longer use the challenges. A landmark U.S. Supreme Court case in 1986, Batson v. Kentucky, set restrictions. It said getting rid of a potential juror solely based on race was unconstitutional. Prosecutors also have to provide a race neutral explanation if they dismiss a juror and the defendant thinks it was because of race.

BARBARA O'BRIEN: So it might have mitigated the problem a bit. But it has not been a panacea.

CORLEY: That's Michigan State University law professor Barbara O'Brien. She and her colleague, Catherine Grosso, studied the impact of race on jury selection in more than 170 death penalty cases in North Carolina.

O'BRIEN: And found that prosecutors struck eligible Black jurors at more than twice the rate they struck other jurors.

CORLEY: The Supreme Court bans dismissing potential jurors based on race. But courts rarely enforce it. Professor Grosso says it's difficult to prove discrimination as the motive as the law requires, especially since attorneys and judges frequently work together in the same courtroom.

CATHERINE GROSSO: They all know each other. And to say that someone you work with all the time, your decision was racist, you exercise that because you had racist ideas, people hesitate.

CORLEY: Many in Arizona's legal community don't support dropping peremptory challenges. They say they're needed to screen out biased jurors and eliminating them sets a bad precedent. But beginning January 1, Arizona becomes the first state to ban the practice. Other states will likely watch to see whether the legal experiment will create a fairer jury selection process or if it will create other problems.

Cheryl Corley, NPR News, Chicago.

(SOUNDBITE OF GERALD CLAYTON'S "SIR THIRD") Transcript provided by NPR, Copyright NPR.