Monday, July 02, 2012

U.S. v. Yepiz (9th Cir. - July 2, 2012)

I wouldn't start an opinion (as Judge Rawlinson does here) by saying that "One of the most valuable weapons in the arsenal of the trial attorney is the peremptory challenge."  For one thing, I don't think it's true.  As a trial attorney, I'd give up peremptory challenges before I'd give up a lot of other important things (e.g., if you're a defense attorney, reasonable doubt, unanimity requirements, etc.; if you're a prosecutor, conspiracy charges, etc.).  Moreover, since both sides have them, strategically, their use seems a wash.  Plus, the empirical evidence on whether challenges can be used effectively is slim at best.  Attorneys may think they're bouncing potential jurors who are biased against their side (or unlikely to rule their way), but the reality is starkly different.

Moreover, views about peremptory challenges have changed a lot over the past several decades.  I think there's a recognition nowadays that they're troubling.  Not only administratively -- because they engender all the Batson-like challenges -- but also because emplying these things seems inherently suspect.  It may well have been that, forty years ago, most trial lawyers would have said that peremptory challenges are essential to justice.  Nowadays, I think that such a sentiment would be substantially weaker, and a contrary view much more pervasive.

Noe of that suggests that peremptory challenges are going away anytime soon.  Though I think that's the direction (if not the wholesale result) we're headed.  And I get why some people think that the availability of at least some peremptory challenges is a good idea.

But I wouldn't write an opinion that calls them one of the most valuable weapons available to a trial attorney.  Especially if that opinion is going to hold -- as Judge Rawlinson's does here -- that taking away a full twenty percent of those challenges from the defendant is harmless error because he can't prove that a replacement juror was biased.