In Massachusetts, counsel are permitted to challenge potential jurors for cause. In addition, each side is permitted to dismiss a specified number of jurors without stating a reason. This practice, called peremptory challenges, has come under increasing scrutiny in Massachusetts. I recently read an article in Massachusetts Lawyers Weekly entitled Is it Time for Peremptory Challenges to Go? The concern raised by this article is that certain challenges are discriminatory or based on unethical motives. So is the answer to abolish them completely or to place tighter restrictions on them?
As a trial lawyer, I have seen the value of peremptory challenges. Such challenges allows you to strike potential jurors who simply do not want to be there and have been unsuccessful in their attempts to be excused from service; and it allows you to strike jurors who, based on the juror questionnaire, do not appear likely to be impartial and yet are not removed for cause. If left on the jury panel, will these jurors sit attentively during the trial and listen to all the evidence? As a defense counsel, I am particularly concerned about a juror who does not want to be serving, particularly since the plaintiff goes first. Similarly, is a juror who has filed numerous lawsuits including one against his dry cleaner because his shirts were not properly pressed, likely to be impartial in the case against your corporate client? While I agree that there is no room for discrimination or unethical conduct in the exercise of peremptory challenges, I feel that they play a valid role in insuring a fair trial for all parties.