Today, more than ever before, justice in the courtroom in the United States of America has caught the common person’s attention and they are asking questions that were never asked before. In the same regard, there is much talk about the prosecution processes in relation to the minorities’ rights and peremptory nature of the white juries. The running example in this regard is such best-selling writers as Grisham, J. who write about the law, as their works with insights into the law are more appealing to the common US citizens.
This shows that common sensibility is improving. Hence, such matters as the elimination of peremptory challenge or its preservation is a much talked about matter today. Peremptory challenge “usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavourable bias without having to give any reason.
Other potential jurors may be challenged for cause, i. e. by giving a reason why they might be unable to reach a fair verdict.” (wikipedia. com) It is considered controversial since it is said to have been used to undermine a balanced representative jury although being selected through a random sampling even though extensive research and fundings have been invested. (wikipedia. org) The issues that give rise to controversies as far as peremtory challenge is concerned spring from the judgments that were carried out against people of different races (like the ones belonging to the Africs or Hispanic or both orignins) by the white juries.
The term used to refer to question the validity of peremptory challenge in the US courtroom is “Batson challege” (wikipedia. org). This term is so used since it was the Batson v. Kentucky decision of the court that dragged the mainstream attention to the controversial state of the peremptory challenge. People like Coburn R. B. state that peremptory challenge is not in it real shape as it was once defined by the US Supreme Court that it is a challenge “exercised without a reason stated, without inquiry and without being subject to the court's control” (questia. com).
He is one severe critic of this approach because to him “judges, scholars, and litigants often disagree over whether the peremptory challenge serves a worthwhile purpose in the American judicial system, all seem to admit that no constitutional basis exists for the peremptory challenge” (questia. com). However, he further informs us that in today’s Court the elimination of the peremptory challenge is more unlikely to happen as the Court holds that “that the peremptory occupies an important position in ... trial procedures” (questia. com).
The peremptory challenge has a long history and extensive literature on the peremptories reveals that the major cases that paved the way for the abolition of all white-jury against a defendors who bolonged either to African or Hispanic race were Batson v. Kentucky, 476 U. S. 79 (1986); Wilkerson v. Texas, 493 U. S. 924 (1989); People v. Kern, 75 N. Y. 2d 638 (1990); Powers v. Ohio, 499 U. S. 400 (1991). All these show a gradual realization of the discrimination caused by racism against a defendant.
However, it was in the case, J. E. B. v. Alabama, 511 U. S. 127 (1994), that the Supreme Court reached a more refined decision that “like race, gender cannot be tolerated as a medium for discriminating against potential jurors. Whether male or female, black or white, every qualified citizen has a right to participate in the criminal justice process” (academic. udayton. edu).
However, unlike Coburn, some view this practice to be fair. Stacy S. J. holds opinion in the favor of peremptory challenge as “peremptory challenges should stay in the justice process, but be monitored by the standards and procedures promulgated by these cases and statutes” and that abolishing the approach “may stop one evil, but open the door to many other evils and opportunities for discrimination”. The fundamental issue, to Stacy, as such, is the basic right of a defendant to be judged by an impartial jury: Measures must be taken to keep this as the starting point of any case (academic. udayton.
edu). The basic reasons that the proponents of this challenge, Justice O'Connor being one of them, hold (i) “The peremptory challenge is a practice of ancient origin”, (ii) and “part of our common law heritage” so must be preserved. They also claim that (iii) "Peremptory challenges, by enabling each side to exclude those jurors it believes will be most partial toward the other side, are a means of eliminating extremes of partiality on both sides, thereby assuring the selection of a qualified and unbiased jury” (Holland v. Illinois cited in law. cornell. edu).
Furthermore, proponents like O’Connor states that “The peremptory challenge is "`one of the most important of the rights secured to the accused'" (Swain, 380 U. S. , at 219: cited in law. cornell. edu). Moving along the lines of argument Holly Becka et al. come up with the view that sees peremptory challenges in contrast to what Stacy sees. They claim that peremptory challenges are of no use when it comes to eliminating “racial discrimination”.
In their article they extensively quote from judges, professors, attorneys, lawyers to focus on this very point and do not see any element in retaining the peremptory challenge that can do any good when races come in contact in a court trial. To them the basic reason for peremptory strikes, after the high court decision in 1935 allowing due recognition to the blacks, was to exclude the blacks from juries “by law and practice” hence to be put to an end. They further quote that “Controversy about peremptories and racial bias has raged ever since.
Academics denounce their inherent unfairness. Judges hate the wrangling and time delays they can cause. Lawyers acknowledge they are still used for discriminatory reasons” (dallasnews. com). Conclusion Thus, it comes to our analysis that both the groups in favor and against elimination of the preemptory challenge for the practice of law hold strong views and the ones that share equally to our understanding. However, to me, the elimination of the concerned issue is more likely to hold good.
The main reason, besides all that the proponents of this elimination hold, as quoted above; is that the US government does not guarantee transparency from a private practitioner of the law: “The Fifth Amendment's Due Process Clause prohibits only actions for which the Government can be held responsible. The Government is not responsible for everything that occurs in a courtroom. The Government is not responsible for a peremptory challenge by a private litigant. I respectfully dissent”. (Donald Edmonson) Either the Fifth Amendment must be redefined to bar the inherent dangers of racism or peremptory challenge must be put to death.
Wikipedia– the freeencyclopedia: Peremptory challenge: a discussion. Retrieved January 7, 2007, from <https://en.wikipedia.org/wiki/Peremptory_challenge> Coburn, R. B. The current state of the peremptory challenge. Retrieved January 7, 2007, from <http://www. questia. com/PM. qst? a=o&d=5001336963> Stacy, S. J. The use of peremptory challenges for discrimination in the administration of justice. Retrieved January 7, 2007, from <http://academic. udayton. edu/race/03justice/98jackso. htm> Justice O’Connor (1994).
Supreme court of the United States. Retrieved January 7, 2007, from <http://www. law. cornell. edu/supct/html/92-1239. ZC. html> Becka, H. et al (2006). Disputed practice still a courtroom fixture: Peremptory challenges survive calls for reform, decades of controversy. Retrieved January 7, 2007, from <http://www. dallasnews. com/sharedcontent/dws/news/longterm/stories/082305dnprojurystrikes. d5c6e76. html> Edmonson, D. (1991). Retrieved January 7, 2007, from <http://www. law. umkc. edu/faculty/projects/ftrials/conlaw/edmonson. html>