California’s new rule will make it tougher for lawyers to remove prospective jurors!

Jury selection in California is about to get more complicated, with the new rule being part of a growing trend to curb attorneys’ power in jury selection.


California’s new rule extends to “conscious or unconscious bias” against several other protected classes. It allows opposing counsel to challenge peremptory strikes and takes Batson much farther, attributing bias to many reasons an attorney could give to justify their decision.

The Supreme Court’s decision in Batson v. Kentucky prohibited such strikes from removing prospective jurors due to their race.

The new rule also opposes dismissing jurors for “having a close relationship with people who have been stopped, arrested, or convicted of a crime,” for having children out of wedlock, not being a native English speaker, their dress or personal appearance, lack of employment, receiving government benefits and more.

This rule applies to cases where jury selection begins on or after Jan. 1, 2022.


“A peremptory challenge for any of the following reasons is presumed to be invalid unless the party exercising the peremptory challenge can show by clear and convincing evidence that an objectively reasonable person would view the rationale as unrelated to a prospective juror’s race, ethnicity, gender, gender identity, sexual orientation, national origin, or religious affiliation, or perceived membership in any of those groups, and that the reasons articulated bear on the prospective juror’s ability to be fair and impartial in the case,” the rule states before listing 13 potential grounds for striking a juror that it assumes to be rooted in bias.

California is not the first to take such action, and based on the current trend, it won’t be the last. The rules come from Washington State’s General Rule 37, which states the objective of challenging “improper bias” in jury selection. 

Arizona has even gone a step further, eliminating peremptory challenges with a rule of its own that takes effect when the new year begins. Connecticut, Kansas, Massachusetts, New Jersey, New York, North Carolina, Oregon, and Utah have all considered rules like Washington’s or abolishing peremptory strikes like Arizona. Still, they have not reached a definitive conclusion.

Colorado’s Supreme Court rejected adopting such a Washington-like rule.

Bob Bianchi, a New Jersey criminal defense attorney, believes that restrictions on peremptory challenges fall to take into account the “reality of the courtroom and hamper attorneys’ and their clients’ – abilities to select impartial juries.’

Having a system designed to keep those with negative views of law enforcement without the same treatment for those with positive views, Bianchi said, “is inherently unfair and unbalanced on its face and defies common sense,” and “specifically prohibits things in favor of the defense only.”

While believing that these rules lean in favor of the defense, Bianchi also pointed out that it strips some of the little power a defendant might have during their trial.

Written by freedomnews

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