In Batson v. Kentucky,1 the U.S. Supreme Court established a three-part test for rooting out the racially discriminatory use of peremptory strikes.2 While Justice Marshall welcomed Batson as an improvement over the prior standard, he presciently warned that Batson would “not end the racial discrimination that peremptories inject into the jury-selection process.”3 Only the abolition of peremptory strikes could do that.4 As Justice Marshall predicted, Batson failed to end the racist use of peremptories.5 But despite widespread recognition of Batson’s failure,6 significant reform has taken decades to materialize.7 Recently, Arizona embraced Justice Marshall’s call and became the first state to abolish peremptory strikes.8 After an extensive process resembling notice-and-comment rulemaking,9 the Arizona Supreme Court amended the state’s rules of civil and criminal procedure to eliminate litigants’ ability to remove prospective jurors without cause.10 The court’s bold move promises to definitively eliminate the discrimination that Batson failed to end. But without peremptories, Arizona defendants are left with only challenges for cause. While the court’s decision to abolish peremptories is laudable, the court should have paired it with a robust expansion of voir dire requirements to better protect defendants against biased jurors.11
For centuries, lawyers could use peremptory strikes to remove potential jurors without giving any reason at all.12 This enabled serious abuse, with prosecutors using “peremptory strikes to prevent Black people from serving on juries.”13 In its landmark 1986 Batson decision, the U.S. Supreme Court held that a party who uses a peremptory strike must give a race-neutral reason if the party challenging the strike makes a prima facie showing that the strike was based on race.14 The trial judge must then decide whether the challenging party has carried their burden of proving “purposeful discrimination.”15 Despite frequent critiques of Batson, no state substantially altered its framework until Washington adopted General Rule 37 in 2018.16 Under that rule, the party challenging a strike need not show purposeful discrimination; if an “objective observer could view race or ethnicity as a factor in [its] use,” the court must deny the strike.17
On January 8, 2021, an Arizona Bar Association committee known as the Batson Working Group embraced Washington’s reform. Pursuant to Rule 28 of the Rules of the Supreme Court of Arizona,18 the Working Group petitioned that court to adopt a modified version of General Rule 37.19 But for Judges Swann and McMurdie of the Arizona Court of Appeals, the Working Group’s proposal did not go far enough. Three days later, the two judges petitioned the Arizona Supreme Court to eliminate peremptory strikes.20 Their petition claimed that abolition would “end definitively one of the most obvious sources of racial injustice in the courts.”21
Judges Swann and McMurdie’s “argument for abolition” proceeded in three parts.22 First, they noted that peremptory strikes are not constitutionally required.23 In fact, they argued, peremptories interfere with the constitutional goal of empaneling juries drawn from a representative cross section of the community.24 Judges Swann and McMurdie then listed studies showing “that peremptories are exercised in a discriminatory fashion.”25 And they suggested that the racist use of peremptories explained why Black jurors were underrepresented by sixteen percent, Native American jurors by fifty-one percent, and Hispanic jurors by twenty-one percent on Arizona criminal juries.26 Finally, Judges Swann and McMurdie argued that abolition would improve public confidence that juries are not the product of discrimination.27
On January 21, 2021, Justice Gould of the Arizona Supreme Court opened both the Swann and McMurdie petition and the Working Group petition to public comments.28 Several trial court judges voiced support for Judges Swann and McMurdie’s proposal.29 But among practitioners, opposition was nearly unanimous.30 Many worried about “jurors who state that they can be fair and impartial even when they . . . reveal prior experiences that indicate otherwise.”31 When a prospective juror reveals a bias, judges usually “ask whether the juror can ‘set it aside’” and “‘follow the law.’”32 “[A]s long as the juror ultimately says that they can be fair and impartial,” judges “are often reluctant to strike” them.33 Without peremptory strikes, litigants “would have no recourse . . . if a judge failed to grant an appropriate challenge for cause.”34 Opponents like the Arizona Attorney General complained that the petition contained no provision easing requirements for challenges for cause, like the one Canada included when it abolished peremptory strikes in 2019.35 And the Arizona State Bar Association argued that if the court eliminated peremptory strikes, it would have to provide for more extensive voir dire.36
Many opponents of the Swann and McMurdie petition urged the Arizona Supreme Court to adopt the Working Group’s proposal modeled on Washington’s rule instead.37 A civil rights group, for example, argued that abolition was “too extreme an act aimed at avoiding squarely addressing discrimination in jury selection,” while the Working Group’s proposal sought to tackle the problem head-on.38 Several lawyers from Washington State urged the court to grant the Working Group’s petition, with Seattle University’s Korematsu Center for Law and Equality arguing that General Rule 37 is “working well,” that suspect “peremptories are being attempted far less often,” and that appellate courts are increasingly willing to invalidate peremptory strikes.39
On August 30, 2021, the Arizona Supreme Court granted the Swann and McMurdie petition.40 In a simple order that contained no reasoning, the court struck all language from the state’s rules of civil and criminal procedure allowing for or referring to peremptory strikes.41 The court also added language permitting the parties to stipulate to the removal of a juror.42 Under the new rules, litigants retain the ability to challenge prospective jurors “for cause,” but they bear “the burden [of] establish[ing] by a preponderance of the evidence that the juror cannot render a fair and impartial verdict.”43 Effective January 1, 2022, litigants in Arizona state court may no longer strike prospective jurors without providing reasons and establishing cause.44
When it announced its decision to abolish peremptories, the court directed its Task Force on Jury Data Collection, Practices, and Procedures to consider changes to Arizona’s for-cause removal rules.45 On November 1, 2021, the Task Force recommended minor amendments to “[e]ncourage case-specific written juror questionnaires when feasible,” “[d]iscourage attempts by the trial judge to rehabilitate prospective jurors through leading, conclusory questioning,” and “[p]ermit extended oral voir dire,” among other suggestions.46 These recommendations do not impose requirements on trial judges, who “maintain judicial discretion and flexibility” over jury selection.47 On December 8, 2021, the court adopted the recommendations on an “emergency basis” and opened the adopted recommendations to public comment until June 2022, with a decision expected in August.48
Arizona’s bold move correctly recognizes that Batson has failed to redress race-based peremptory strikes. And it embraces a position advocated by many scholars: that the abolition of peremptory strikes is the “only fix.”49 While abolition is a laudable move, it also deprives criminal defendants of one of the few tools available for securing their Sixth Amendment right to an impartial jury.50 Without peremptories, Arizona defendants are left to seek an impartial jury through challenges for cause and voir dire. But mounting a successful challenge for cause is difficult.51 And trial judges, eager to save time, often use their broad discretion to severely limit voir dire, leaving defendants with no real opportunity to develop their case against jurors they believe to be biased.52 The Arizona Supreme Court acknowledged this concern by adopting the Task Force’s recommendation to, inter alia, “[p]ermit extended . . . voir dire.”53 But its decision to make expanded voir dire a nonbinding suggestion on trial judges risks doing little to protect defendants from biased jurors. The court should have instead paired abolition with a robust expansion of voir dire requirements — not merely the nonmandatory changes recommended by the Task Force.
Batson has failed to end the racist use of peremptory strikes. As Justice Marshall predicted, prosecutors routinely conjure up race-neutral reasons for striking potential jurors — reasons that courts rarely “second-guess.”54 Courts have accepted as satisfactory explanations under Batson the fact that stricken Black jurors had “unkempt hair” and a beard;55 rented rather than owned their home;56 lived in a neighborhood where exposure to drug traffickers was likely;57 nodded at the defendant’s brother outside the courtroom;58 and “wore a beret one day and a sequined cap the next.”59 An Illinois judge joked that “new prosecutors are given a manual, probably entitled, ‘Handy Race-Neutral Explanations.’”60 And in North Carolina, prosecutors actually received a cheat sheet called “Batson Justifications: Articulating Juror Negatives.”61 Unsurprisingly, then, studies routinely find that Batson has failed to meaningfully reduce the racist use of peremptory strikes.62 Arizona’s bold move, by contrast, promises to definitively “end the racial discrimination that peremptories” have long “inject[ed] into the jury-selection process” — at least in the Grand Canyon State.63
While laudable, abolition also stands to reduce the little protection that defendants have against biased jurors. Notably, the U.S. Supreme Court has read the Constitution to require little in the context of jury selection that would help defendants secure impartial juries. As a matter of federal constitutional law, jurors are presumed impartial, and they need not be “ignorant of the facts and issues involved” in a case.64 Even a prospective juror’s “preconceived notion as to the guilt or innocence of [the] accused” is not “sufficient to rebut the presumption” of impartiality.65 And it is often enough for a judge to find that a prospective juror can set “aside his impression or opinion and render a verdict based on the evidence.”66
Voir dire is supposed to help weed out those too biased to base their verdict solely on the evidence. But the Constitution does not guarantee voir dire sufficient to achieve this aim because it leaves excessive discretion to trial judges.67 As a general matter, the Constitution does not require judges to ask prospective jurors about specific biases feared by the defendant.68 Instead, trial judges retain broad discretion over what to ask and how many questions to pose. Vague, limited inquiries into a juror’s ability to be impartial often suffice.69 The Supreme Court’s 2010 decision in Skilling v. United States70 shows that voir dire need not be extensive and that strong challenges for cause are often denied. In that case, Jeffrey Skilling, the former chief executive of Enron, was on trial for fraud and insider trading in Houston, the city where thousands had lost their jobs, homes, and retirements because of Enron’s stunning collapse.71 Yet the trial judge conducted only five hours of in-person voir dire.72 The Supreme Court said that this voir dire was not only adequate but also reflected the trial judge’s “aware[ness] of the greater-than-normal need . . . to ensure against jury bias.”73 However, jurors seated over Skilling’s objections included a woman “angry” over losing her 401(k) because of Enron’s collapse and a man who openly blamed the collapse on legally dubious behavior motivated by greed.74
Arizona’s jury selection rules do not meaningfully augment federal constitutional requirements because they too leave significant discretion to trial judges. Arizona law formally requires judges to conduct a “thorough oral examination of . . . prospective jurors” and mandates that parties receive “sufficient time, with other reasonable limitations, to conduct . . . further oral examination.”75 But Arizona trial judges retain ultimate control over voir dire and wide latitude to limit questioning.76 Defendants must climb a steep hill to secure an appellate reversal of a trial judge’s voir dire decisions, which are reviewed for abuse of discretion.77 They must “demonstrate not only that the voir dire examination was inadequate[] but also that . . . the jury selected was not fair, unbiased, and impartial.”78 And an Arizona trial judge’s denial of a challenge for cause is also deferentially reviewed for abuse of discretion.79
To ensure that defendants are not left in the lurch by the abolition of peremptory strikes, the Arizona Supreme Court should have paired abolition with expanded voir dire requirements — not optional changes that leave the defendant’s right to an impartial jury to the discretion of the trial judge. Expanded voir dire has real benefits: “[E]mpirical evidence indicates that” it “enhance[s] the efficacy of cause challenges.”80 More effective challenges for cause in turn ensure that those with serious biases do not sit in judgment of defendants.81 And extensive voir dire also impresses upon potential jurors the solemnity and importance of jury duty.82 The Arizona Supreme Court implicitly recognized these benefits by adopting changes to encourage more robust voir dire.83 But history already shows us that trial judges are inclined to limit voir dire to save time and that appellate courts are reluctant to second-guess those limits.84 By failing to make expanded voir dire mandatory, the Arizona Supreme Court missed an opportunity to protect defendants’ impartial jury right while securing the important benefits of peremptory strike abolition.