New rules in Arizona radically change how a jury is selected

Beginning January 1, 2022, there will be a radical change to the jury selection process in Arizona.

For years, the selection process included challenges for “cause” and what were known as “peremptory” strikes. “Cause” meant a juror had a bias or prejudice that prevented he or she from being impartial. “Peremptory” meant the juror could be excused for any reason.

In the 70’s and 80’s it became apparent that the peremptory challenge was being abused. Jurors were being excused peremptorily based on sex, race, ethnicity, or religious grounds.

Then came Batson v Kentucky decided by the US Supreme Court in 1986. The case is considered landmark. No longer could a juror be excused peremptorily simply based on sex, race, ethnicity or religion. Of course, if challenged, the lawyer making the challenge could always justify the challenge on other grounds. Such as “He is an accountant. This is a financial case. The jury will lean on him for leadership.” But “the accountant” was obviously of Muslim descent wearing a turban in court. The accounting firm on trial was named: “Goldberg, Weissman and Silver” obvious Jewish names. Previous attempts to challenge the juror for cause had been denied as the accountant swore under oath that he could be fair and would consider the case on the evidence only.

Batson v Kentucky made it clear that challenges based on sex, race, ethnicity, or religion would no longer be tolerated. But the abuse continued.

The Arizona Supreme Court took a bold move and eliminated the peremptory challenge effective January 1, 2022. In civil cases, 24 prospective jurors would be called to the room. Sixteen would be called for questioning. Each side had four peremptory challenges making up a civil jury of eight. Additional jurors would be called in Criminal trials that would require a jury of twelve. Peremptory challenges were eliminated in Criminal cases as well.

Now, sixteen jurors are called, eight are called for selection. Absent any challenges for cause, those eight become the jurors that will decide the case.

This was a bold move. So far, Arizona is the only jurisdiction implementing this new policy. It is seen as a move to eliminate the abuse Batson v Kentucky addressed in 1986 and will at the same time reduce costs as fewer jurors will have to be called for each case. That means elimination of the mandatory one day juror fee that the County pays to each prospective juror that does not serve.

Plaintiff’s lawyers are welcoming this change, and the Defense lawyers are crying “foul.” As with any “social experiment” it will take years to determine the effect this new selection process will have on actual case outcome. The Rockafellow Law Firm welcomes this new change as no longer will the defense be able to strike a juror for cause just because the juror might be sympathetic to the Plaintiff’s position. This change truly levels the playing field.