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Last Post 01 Jun 2021 08:32 PM by  bcrmember
R-21-0020 Petition to Amend Rules 18.4 and 18.5 of Rules of Criminal Procedure and Rule 47(e) of the Arizona Rules of Civil Procedure
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Author Messages
Barry D. Halpern
New Member
Posts:3 New Member

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03 May 2021 10:57 PM
Barry Halpern
Snell & Wilmer, LLP
One Arizona Center
400 E. Van Buren, Suite 1900
Phoenix, Arizona 85004-2202
602-382-6000
602-382-6070
[email protected]
#005441

Attorneys Barry D. Halpern, Brett W. Johnson, Tracy A. Olson, and Claudia E. Stedman submit this Comment in Opposition to R-21-0020 on behalf of the Arizona Medical Association, Arizona Osteopathic Medical Association, and the Arizona Chamber of Commerce and Industry.
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David Euchner
New Member
Posts:29 New Member

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04 May 2021 12:01 AM
ARIZONA ATTORNEYS FOR CRIMINAL JUSTICE
DAVID J. EUCHNER, SB#021768
[email protected]
Pima County Public Defender’s Office
33 N. Stone Ave., 21st Floor
Tucson, AZ 85701
(520) 724-6800
Attorney for Arizona Attorneys for Criminal Justice
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bcrmember
New Member
Posts:19 New Member

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01 Jun 2021 08:32 PM
Comments opposing the petition have a central theme: the assertion that the loss of the right to peremptorily challenge jurors will harm the fairness of trials by allowing biased jurors to survive voir dire and sit on an empaneled jury. As rightly passionate as the commenters are about the paramount importance of quality justice, the comments cite no evidence that peremptory challenges successfully eliminate bias, nor do they address the overall impact of years of discrimination on the integrity of a jury system.

If peremptory challenges are eliminated, one thing is certain: there will be no discrimination on the basis of any prohibited category in our courts. That in itself would make Arizona the national leader in combatting this pernicious problem. And the concern about biased jurors is, in my view, overstated. Challenges for cause would remain unlimited, and a skilled advocate should be able to articulate the bases for concern about a juror's impartiality. Any thought that an advocate can detect inarticulable bases for bias and exercise peremptory challenges in the direction of fairness, while tantalizing, is actually little more than hopeful speculation. (And in practice, very few advocates seek unbiased juries -- they naturally seek favorable juries).

In a world without peremptory challenges, judges can be expected to examine challenges for cause more carefully. The current practice of allowing rehabilitation of biased jurors by the recitation of magic phrases ("I hate police, but I can be fair...") would yield to a serious examination of the jurors' presentations at voir dire, and more challenges for cause would be granted. Appeals over jury composition would then be based on straightforward consideration of a meaningful record instead of the speculative-shell game that is Batson.

A comment by Andrew Jacobs raises a different concern, relating to the provision in our proposed rule allowing the removal of a juror based on stipulation. The concern is that by agreement, each side might agree to give the other a certain number of peremptory strikes, thus circumventing the rule. Though it is not clear that this is a practical likelihood, we would be amenable to a change that allows removal of jurors by stipulation only before the venire is present in the courtroom, based solely on responses to prescreening questionnaires. This change would eliminate the risk Mr. Jacobs identifies in the courtroom, while allowing clearly unqualified jurors to be removed from consideration before they are seen and heard in the courtroom. Because prescreening questionnaires are typically used in long, complex trials in which the venires are large, this form of removal by stipulation would serve to make jury selection more efficient in those cases without presenting a serious risk of systemic discrimination.

-- Peter B. Swann
Paul J. McMurdie

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