Changes coming to jury selection oversight

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Contributors

The phrase “jury selection” sounds like attorneys select who is going to sit on the jury. That’s a bit inaccurate—trial attorneys instead attempt to exclude those potential jurors for that case that they do not want to be a juror. Attorneys are provided with a group of potential jurors and then ask questions (“voir dire”) to determine whether that potential juror is one they want to sit in judgment on the case.

There are two ways that an attorney can have the Court exclude potential jurors. One way is a challenge “for cause.” This occurs when a potential juror actually admits in open Court before all the other jurors and the Judge that they cannot be a fair and unbiased juror in a given case. Getting to that result is not generally easy, but the number of these challenges are unlimited – as long as potential jurors admit those biases, the Judge must excuse them.

The other way for an attorney to excuse a potential juror is called the “peremptory challenge.” These are limited in number, for rather obvious reasons. In civil cases, each side gets 6 peremptory challenges if there are two sides (one plaintiff and one defendant). If there are more than 2 sides (for instance, one plaintiff and two defendants, who may try to blame one another), the challenges increase incrementally, but are still limited in number.

Unlike cause challenges, the rule is an always has been that an attorney need not explain the reason for a peremptory challenge—it is by definition a challenge without an explanation (peremptory in nature).

Having said that the challenges are without explanation, there have been Court cases limiting the exercise of peremptory challenges if it appears that such challenges are being used in a discriminatory manner. If, for instance, a trial attorney uses all of their peremptory challenges to make sure that the entire jury is white and male, that’s discriminatory.

There are two primary cases – one Federal, and one in California - that discuss and limit the improper use of peremptory challenges. Those cases are Batson v. Kentucky (1986) 476 U.S. 79 and People v. Wheeler (1978) 22 Cal.3d 25. While there are some differences in the cases, the main thrust of the rulings is that if one party thinks that another party is using peremptory challenges to exclude potential jurors based on protected status, such as race and gender, they can raise the issue with the Judge, and object to the apparently discriminatory nature of the challenge(s).

The mechanism for correcting any such abuse under Wheeler and Batson is this: The party contending that the peremptory challenge is improper must make a prima facie showing to the Judge that the challenge was based on improper grounds. If they meet that burden of proof, the party who made the challenge to the potential juror must then respond with their non-discriminatory reasons for the challenge, and the Court then rules.

The California Legislature decided this was not a sufficient protection. In 2020 the Legislature passed, and the Governor has signed, California Code of Civil Procedure Section 231.7. This statute flips the burden of proof to the party making the challenge, putting the burden of justifying the challenge on the party that exercised that litigation tool.

Specifically, under the new law, an opposing counsel only needs to object that they believe a challenge is based on improper grounds (race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups). Once an objection is raised, the challenge is “presumed to be invalid”, and the party that made the challenge bears the burden of establishing by “clear and convincing evidence” that the challenge was made for reasons that actually bear on the potential juror’s ability to be fair in the case (again within certain stated reasons.) The party making the objection to the challenge can request, and the Judge must excuse the entire jury pool, if they find that a given challenge was made on improper grounds.

The potential for abuse by trial attorneys objecting to peremptory challenges made by opposing counsel, is clear. The Alliance of California Judges and the California District Attorneys Association, among others, have issued statements in response to the potential chaos and time consumption this law presents, including the fact that it essentially upends the normal jury selection process..

This new law has taken effect this year in criminal cases, and will be in effect 2026 in civil cases. Perhaps if the implementation of the new law in criminal cases is sufficiently problematic, it will be changed before it applies to civil cases.