Are Peremptory Challenges a Thing of the Past?

In light of the COVID-19 pandemic, judges in Pennsylvania’s Lackawanna County issued an Order disallowing peremptory challenges in civil trials. Over the past months, as jury trials resumed in certain counties in the Commonwealth, turnout of prospective jurors have drastically declined because of health concerns, making it difficult and time consuming to try to retain twelve jurors. As such, judges on the Lackawanna bench asked the Pennsylvania Supreme Court to allow the county to get rid of preemptory challenges in civil trials. It was approved.

Trials have been backed up due to court closures and this Order is an effort to keep trials moving during a pandemic. While it was noted that some attorneys have stipulated to empanel six jurors instead of twelve in an effort to limit the length of exposure, it is clear that courts struggling to have trials need to strike a balance between fairness and safety as cases of COVID-19 continue to rise. The jury pools are not large enough for peremptory challenges, especially when multiple trials have juries being chosen on the same day.

Presumably, the Supreme Court’s approval of the decision to abandon peremptory challenges will mean that any judicial review of the change will fall on deaf ears in state court. Federal challenges are unlikely to be any more successful in light of the fact that courts have already ruled that there is no federal constitutional right to a peremptory challenge. See Stilson v. United States, 250 U.S. 583, 586 (1919); see also U.S. v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (noting peremptory “challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory challenges are not of federal constitutional dimension.”).  What’s more, controversy has long existed as to whether peremptory challenges should ever be permitted because of their inherently prejudicial nature. This has led the U.S. Supreme Court to provide relief where there is evidence of racial or gender discrimination in the exercise of such a challenge. See Batson v. Kentucky, 476 U.S. 79 (1986) (criminal cases); Edmonson v. Leesville Concrete Company, 500 U.S. 614 (1991) (civil cases); J.E.B. v. Alabama ex rel. T. B., 511 U.S. 127 (1994) (barring gender peremptory discrimination). This has caused some observers, including former Justice Scalia, to suggest that the better method may be to prohibit peremptory challenges altogether. See id. (Scalia, dissenting).

Given all this, peremptory challenges may not necessarily be revived even after COVID-19 has (someday!) been conquered. In that event, and certainly in the meantime, mediation and ADR may increasingly make sense.  

For additional information, please contact Scott Tredwell, stredwell@mccormickpriore.com or Kathryn Luchansky kluchansky@mccormickpriore.com.