In a groundbreaking ruling by the Arizona Supreme Court, the use of peremptory strikes—which allows attorneys to remove potential jurors without a stated reason—was eliminated in civil and criminal cases effective January 1, 2022.

Bias and the Use of Peremptory Challenges

According to Chief Judge of the Arizona Court of Appeal, Peter Swann, “There is no other means of skewing a jury other [like] the peremptory strike.”[i]  In petitioning the Arizona Supreme Court to eliminate peremptory challenges, Chief Judge Swann noted how strikes of potential jurors without cause are often based on stereotypes and unconscious bias.[ii]  Despite restrictions placed upon the use of peremptory strikes by the United States Supreme Court in its ruling in Batson v. Kentucky[iii], which required there be a race neutral reason for a strike, peremptory strikes have been used to disproportionately remove jurors of color.[iv]  At the Superior Court in downtown Phoenix in 2019, for example, potential jurors who were black were stricken at a 40% greater rate and Native Americans were stricken at a 50% greater rate.[v]  In order to create more diverse and inclusive juries, the Arizona Supreme Court eliminated the use of peremptory strikes.

Case Specific Questionnaires and Open-Ended Questions Encouraged

Prior to the ruling, each side in a civil case was given four peremptory strikes.  Without peremptory challenges, attorneys have fewer opportunities to dismiss potentially impartial jurors, making the use of effective voir dire more critical in the jury selection process.  To assist counsel, the courts in Arizona are now emphasizing the use of a case-specific questionnaire to be completed by perspective jurors and allowing sufficient and meaningful time for the court and the parties to question prospective jurors.[vi]  In Maricopa and Yavapai counties, those questionnaires are online and screened by the judge in real time.  The responses are then put on a spreadsheet and provided to counsel before oral voir dire.

The reason for the emphasis on case-specific questionnaires is that studies have found potential jurors are more likely to be candid when asked open-ended questions about their personal opinions and life experiences in writing rather than during oral voir dire.[vii]  If asked the right questions, research has found, potential jurors are willing to provide the basis for disqualification.[viii]  While not mandatory, the use of questionnaires is strongly encouraged.

Under the new rules, civil parties must include proposed questions for the case specific questionnaire and oral voir dire in their Joint Pre-Trial Statement.  The judge may determine the areas of inquiry and the specific questions to be asked and may limit written and oral examination by counsel.  The judge also decides whether to permit the parties to give a brief opening statement before oral voir dire.

Post-Elimination of Peremptory Challenges Jury Selection

In addition to the emphasis on case-specific written questionnaires with open-ended questions and allowing sufficient and meaningful time for questioning by the court and the parties, the courts in Arizona have adopted the following changes in jury selection now that peremptory challenges have been eliminated:

(1)       Judges are discouraged from rehabilitating potential jurors with leading, conclusory questions.

(2)       The length of jury selection should be proportionate to the complexity of the case.

(3)       The court is to maintain a comprehensive record of all case-specific answers provided during voir dire.

(4)       The privacy of jurors is to be maintained.[ix]

Striking a Potential Juror for Cause

In Arizona, an attorney seeking to disqualify a potential juror for cause has to demonstrate, by a preponderance of the evidence, the juror cannot be fair and impartial.  In considering whether to strike a potential juror for cause, the judge must consider the totality of the potential juror’s responses during voir dire and his/her conduct.[x]  By presenting potential jurors with the ability to answer questions which allow them to freely respond and potentially reveal biases, attorneys have a greater chance of successfully striking jurors for cause.

Takeaway

For practitioners in Arizona, with the elimination of peremptory challenges, a more robust voir dire is required.  Thoughtful consideration must be given to the open-ended questions to be included in the case-specific questionnaire to ferret out jurors who are unable to be fair and unbiased.  The use of the case-specific questionnaire allows counsel to eliminate jurors for cause, while the elimination of peremptory challenges will hopefully lessen the bias in the jury selection process.

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[i] Corley, Cheryl, Arizona’s Supreme Court Eliminates Peremptory Challenges, NPR (Sept. 26, 2021), https://www.npr.org/2021/09/06/1034556234/arizonas-supreme-court-eliminates-peremptory-challenges

[ii]Id.

[iii] 476 U.S. 79 (1986)

[iv] Team, JA, Arizona Eliminates Peremptory Challenges in all Jury Trials – What Does that Mean for your Civil Procedure, Trial Law (October 5, 2021), https://juryanalyst.com/blog/arizona-eliminates-peremptory-challenges/

[v] Report and Recommendations, Arizona Task Force on Jury Data Collection, Policies, and Procedures, (Oct. 4, 2021) pp. 36-37

[vi] Id. at p. 41

[vii] Id.

[viii] Id.

[ix] Rule 47 – Jury Selection; Juror Information; Voir Dire; Challenges, Ariz. R. Civ. P. 47.

[x] Ariz. R. Civ. P. 47(d)(3)

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