A groundbreaking rule that took effect on Jan. 1, 2022, makes Arizona the first state to eliminate peremptory challenges in all jury trials. The changes directly impact civil and liability defense, as well as criminal, justice, and eviction courts.
The Arizona Supreme Court issued new rules in response to a recommendation by a state task force evaluating whether Arizona juries were fair representations of their communities. Advocates of the rule change believe peremptory challenges gave some lawyers an avenue to exclude people of color.
The Supreme Court’s abolition of peremptory challenges is NOT open to public comment. However, the ancillary changes are open for public comment until May 1, 2022. The Supreme Court will reevaluate in August 2022 based on the comments received.
What Is a Peremptory Challenge?
Through a peremptory challenge, an attorney could dismiss a prospective juror before a trial without giving a reason for doing so. Trial attorneys were given between 2 and 10 peremptory challenges (depending on the charges) in a criminal trial and up to 4 peremptory challenges in a civil trial.
New Rule Impacts Jury Selection Process
Peremptory challenges were an integral part of the jury selection, or rather, the jury deselection process. When a case went to trial, the court initially assembled a large pool of potential jurors, then trimmed it down through voir dire, a process in which trial attorneys ask prospective jurors questions about their attitudes and experiences relevant to the case.
The plaintiff and the defense attorneys had the opportunity to strike a particular juror from the jury pool if they have reason to doubt their impartiality. An attorney could use their allocated peremptory challenges (no explanation required) or strike for cause (naming the potential conflict or bias).
Strike for cause could involve glaringly obvious sources of bias, such as the juror being personally involved or related to one of the parties in the case, or it could be based on an explicit statement a prospective juror makes, which indicates they are biased in favor of one of the parties.
Without peremptory challenges, there are fewer opportunities to dismiss potentially biased jurors. The strategic use of striking for cause becomes exponentially more important.
Changes to Voir Dire
When an attorney wishes to dismiss a potential juror for cause, they have the burden by the preponderance of the evidence to show that the juror cannot render a fair and impartial verdict. The Court must consider the totality of a proposed juror’s conduct and answers given during voir dire. Ariz. R. Civ. P. 47(d)(3).
A more robust voir dire is critical to better ascertain possible conflicts and biases among potential jurors. In recognition of this need, the Arizona Supreme Court considered the results of the study conducted by the state task force.
The task force’s work with data scientists found three key concepts:
- Research indicates that prospective jurors are more willing to provide candid information in a written response format (versus open questioning in front of the panel).
- Research also suggests that jurors are more willing to provide candid and useful information when asked open-ended questions about their personal opinions and life experiences rather than questions about undefined terms such as “bias” “prejudice” and whether they will follow the law. (Most people believe they are fair and impartial and are unsuccessful at identifying when they have bias or prejudice.)
- Research suggests that jurors are willing to provide a basis for disqualification, but they must be asked the right questions.
These concepts were incorporated into an expanded voir dire with an emphasis on open questions as opposed to leading questions, as suggested by the task force.
The new rules attempt to accomplish the following:
- Encourage the use of case-specific written juror questionnaires when feasible.
- Permit extended voir dire with participation from the parties and an emphasis on open-ended questions.
- Discourage attempts by the trial judge to rehabilitate prospective jurors through leading, conclusory questioning.
- Respect for the difference in summoning practices of each court.
- Maintain proportionality in the length of jury selection to the complexity of the case.
- Ensure a comprehensive record of all case-specific answers provided during voir dire.
- Maintain juror privacy.
The recently adopted changes also dictate that in pretrial, the court may determine areas of inquiry and specific questions to be asked during voir dire, including limitations on written/oral examination and whether to permit parties to give brief pre-voir dire opening statements.
With the Joint Pretrial Statement, civil parties must submit proposals for case-specific written questionnaires and oral voir dire. The new rule discourages attempts by judges to rehabilitate prospective jurors who have already articulated a basis to be excluded.
Case-Specific Jury Questionnaires
No one generally admits in front of other prospective jurors that they are biased or have a conflict. By improving the Supplemental Jury Questionnaire, privately asked questions can help ferret out potential jurors that cannot remain impartial. The questionnaires are completed in privacy. The Court digitally reviews juror responses in real-time. The responses are then converted to a spreadsheet and provided to the lawyers.
Prospective jurors must answer all questions. They cannot “hit submit” unless there are characters (answers) for all entries. Many courts are already using readily available platforms such as Survey Monkey, Microsoft, and Google forms to administer digital questionnaires.
Questionnaires are not mandatory, but if they are used, they must follow these guidelines:
- The questionnaire should include instructions on the purpose of voir dire, how the court and parties will use the information, and who may have access to the information the juror provides. Ariz. R. Civ. P. 47(c)(2).
- The prospective juror must swear or affirm that the answers provided are truthful. Ariz. R. Civ. P. 47(c)(1).
- Completed case-specific written questionnaires must be filed under seal and maintained as part of the case file. Ariz. R. Civ. P. 47(b)(3).
- Before oral voir-dire, the prospective juror’s responses to the case-specific written questionnaire must be provided to each party. Any party receiving a copy of the responses must not disclose the information to the public and may disclose the information only to the extent necessary for the proper conduct of the case. Ariz. R. Civ. P. 47(b)(3).
- Upon completion of jury selection, each recipient must destroy or return all copies of the jurors’ responses to the court. Ariz. R. Civ. P. 47(b)(3).
The usefulness of questionnaires is enhanced by focusing on the following:
- Information that jurors may be reluctant to provide publicly (e.g., that they were the victim of an offense, that they were convicted of an offense).
- Information that is more efficient and effective to obtain through written disclosure and could taint the jury pool, e.g., “What do you know about this case?”
- Relevant attitudinal questions such as whether the jurors have any opinions or life experiences that would cause them to give more or less credibility to a particular witness or whether they have attitudes regarding particular issues such as damages for pain and suffering.
- The Court files the juror responses under seal. Under the rule, the lawyers are required to destroy any copies of the jurors’ answers.
Legislation May Reinstate Some Peremptory Challenges
Lawmakers are currently advancing legislation in the Arizona House of Representatives that would reinstate peremptory challenges for criminal cases. House Bill 2413 was advanced by the House Judiciary Committee on a 6-4 vote. The bill is sponsored by Rep. Jacqueline Parker of Mesa. The bill would next need to be passed by the full House before going to the Senate for consideration.
Experienced Litigation Lawyers in Complex Civil Cases
The Righi Fitch Law Group offers innovative and strategic civil liability defense. From small businesses to multinational corporations, we understand the unique challenges each faces. Through our extensive experience and knowledge, we can use the changing landscape of trial rules to fight for the best outcome for our clients.
Contact one of our attorneys at (602) 483-6352 to discuss your legal needs.