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Why Prosecutors Should Voluntarily Waive Peremptory Challenges Maureen A University of Washington School of Law UW Law Digital Commons Articles Faculty Publications 2010 Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges Maureen A. Howard University of Washington School of Law Follow this and additional works at: https://digitalcommons.law.uw.edu/faculty-articles Part of the Criminal Procedure Commons Recommended Citation Maureen A. Howard, Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, 23 Geo. J. Legal Ethics 369 (2010), https://digitalcommons.law.uw.edu/faculty-articles/367 This Article is brought to you for free and open access by the Faculty Publications at UW Law Digital Commons. It has been accepted for inclusion in Articles by an authorized administrator of UW Law Digital Commons. For more information, please contact [email protected]. Taking The High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges MAUREEN A. HowARD1 ABSTRACT A fundamental tenet of the American justice system is that an impartial jury is an essential component of a fair trial. In addition to a litigant's right to have his or her case decided by jurors free of bias or prejudice, individual citizens enjoy a separate right to be considered for jury service without the taint of improper discrimination. Scholars have called for the elimination of peremptory challenges in jury selection, arguing they lack utility and are exercised in an unconstitution- ally discriminatory manner. No one, however, has proposed that prosecutors should voluntarily waive peremptory challenges even if the general practice is retained. A prosecutor's ethical duty goes beyond advocacy; unlike other lawyers, the prosecutor is uniquely duty-bound to "seek justice." Prosecutors' use of peremptory challenges is an exercise of discretion to be evaluated against this distinct ethical standard. A prosecutor cannot deny that peremptory challenges may be exercised in violation of the Equal Protection Clause at least some of the time by some of the lawyers in her office. In addition, prosecutors cannot always elicit adequate information about prospective jurors to form rationally-ba sed reasons for excusing jurors peremptorily, which raises a separate concern about a prosecutor's exercise of peremptory challenges as an irrational, arbitrary, and capricious governmental act. Peremptory challenges are not themselves constitutionally guaranteed; rather, they are a prophylactic safeguard of the constitutional right to an impartial jury, subject to cost-benefit scrutiny. On the one hand, to what extent does the practice risk unconstitutional discrimination, damaging both the actual and perceived fairness and reliability of the prosecution process? On the other hand, to what extent does the practice actually increase the likelihood of a just conviction? In balancing the two, is the benefit of one outweighed by the detriment to the other? 1. Assistant Professor, University of Washington School of Law. The author served as a Deputy Prosecuting Attorney for King County in Seattle, Washington and dedicates this article to former King County Prosecutor Norm Maleng (1939-2007), one of the most brilliant and ethical lawyers of our time. It was he who planted the seed for this article. The author thanks the following people for their insightful comments on earlier drafts: Helen Anderson, Tom Andrews, Laura Appleman, Jeffrey Dobbins, Christopher Howard, W. H. (Joe) Knight, Deborah Maranville, Todd Maybrown, Dana Raigrodski, Hari Osofsky, Ellen Yaroshefsky, Mary Whisner, and Louis Wolcher. THE GEORGETOWN JOURNAL OF LEGAL ETHIcs [Vol. 23:369 In this Article, I review the efficacy of peremptory challenges and conclude that both empirical and anecdotal evidence confirm such challenges are of little utility. I contend that the marginal benefit of peremptory challenges to a criminal prosecutor is outweighed by the damage done to both the actual and perceived fairness of the system, and that imbalance should persuade prosecutors to consider a wholesale voluntary waiver of peremptory challenges. INTRODUCTION A fundamental tenet of the American justice system is that an impartial jury is critical to providing a fair trial to liiigants.2 In addition to a criminal defendant's right to have his case decided by jurors free of bias or prejudice, individual citizens enjoy a separate right to be considered for jury service without the taint of improper discrimination.3 Efforts to seat an impartial jury cannot infringe on the constitutional rights of prospective jurors.4 A number of scholars and commentators have criticized the use of peremptory 2. "Juries are supposed to serve a number of important functions. Formally their task is to engage in sound fact finding from the evidence produced at trial. However, juries are also supposed to represent the various views of the community, serve as a political body, and, through rendering fair and just verdicts, provide legitimacy for the legal system. A jury that is not representative of the community is likely to fail in these functions." NEtL ViDMAR & VALERE P. HANS, AMEIcAN JuRIEs: THE VERDicr 66 (2007). See also American Bar Association, Principles for Juries and Jury Trials 3 (2005), available at http://www.abanet.org/ juryprojectstandards/principles.pdf (last visited Feb. 11, 2010). 3. The Supreme Court in Batson v. Kentucky, 476 U.S. 79 (1986), held that the Equal Protection Clause of the Fourteenth Amendment prohibited the state prosecutor from exercising peremptory challenges based on race. This constitutional prohibition was extended to ethnicity in Hernandez v. New York, 500 U.S. 352 (1991), and to gender in J.E.B. v. Alabama ex rel. TB., 511 U.S. 127 (1994). A party need not be of the same race as the challenged juror to raise the issue. Powers v. Ohio, 499 U.S. 400 (1991) (white defendant may object to prosecutor's challenge of minority jurors). The protection against discrimination in jury selection applies to private litigants in civil cases. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991). The prohibition against discrimination in exercising peremptory challenges extends to all parties, including a criminal defendant. Georgia v. McCollum, 505 U.S. 42 (1992) (holding racial discrimination in jury selection undermines public confidence in the fairness of the jury system regardless of who exercises the discriminat6ry challenge). This standard may eventually be extended to prohibit the exercise of peremptory challenges based on sexual orientation. See, e.g., Romer v. Evans, 517 U.S. 610 (1996) (finding Colorado constitutional amendment violated equal protection where it attempted to prohibit all legislative, executive, or judicial action designed to protect homosexual individuals from discrimination). In the federal system, The Jury Selection and Services Act prohibits discrimination as well. 28 U.S.C. § 1862 (2009) ("No citizen shall be excluded from service as a grand or petit juror in the district courts of the United States on account of race, color, religion, sex, national origin, or economic status."). State constitutions and/or legislation may similarly broaden the pro- tections afforded a prospective juror from discrimination in jury selection beyond those articulated in Batson and its progeny. For example, the Washington State Constitution provides that no person shall be incompetent as a juror "in consequence of his opinion on matters of religion." WASH CONST. art. I, § 11. It remains unclear whether this constitutional provision triggers a Batson analysis. See Justin Dolan, Thou Shall Not Strike: Religion-Based Peremptory Challenges Under the Washington State Constitution, 25 SEArrn.E U. L. RE. 451 (Fall 2001). 4. See citations and accompanying text, supra note 3. The thread of these cases is that citizens have a right to be considered for and participate in jury service, free of discrimination. See Barbara D. Underwood, Ending Race Discriminationin Jury Selection: Whose Right is it, Anyway?, 92 COLUM. L. REv. 725, 742-50 (1992). 2010] TAKING THE HIGH ROAD challenges precisely because they are used discriminatorily and thus unconstitu- tionally. 5 One commentator referred to the peremptory challenge as a "weapon of prejudice."6 Another denounced peremptory challenges as being "probably the single most significant means by which.., prejudice and bias [are] injected into the jury selection system."7 Yet another referred to unrestricted peremptory challenges as "the last bastion of undisguised racial discrimination in the criminal justice system."' 8 At least one federal judge voiced her concern about the abuse of peremptory challenges by banning them in her courtroom, calling them a violation of equal protection. 9 Some U.S. Supreme Court justices have also questioned whether the detriments associated with the use of peremptory challenges outweigh the intended benefits, producing a net harm. 10 Justice Thurgood Marshall, in his concurring opinion in Batson v. Kentucky,1" grimly predicted that discriminatory use of peremptory challenges would continue, despite the constitutional prohibition against prosecutors' use of peremptory challenges as pretexts for invidious racial discrimination. The cure for such discrimination, he wrote, was the elimination of peremptory challenges en- 1 2 tirely. 5. See, e.g., Jose Felipe Anderson, Catch Me If You Can! Resolving The Ethical Tragedies In the Brave New World of Jury Selection, 32 NEw ENG. L. REV. 343 (1998); Felice Banker, Note, Eliminating A Safe Haven for Discrimination: Why New York
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