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Saturday, August 19, 2023
By Michael Nichols
Categories: Michael J. Nichols
Imagine yourself in a position in which you never thought that you would find yourself – you are trying to decide which 6 – or in the case of a felony 12 people will decide if the facts presented by the government prove you guilty beyond a reasonable doubt. Imagine yourself working with a lawyer, a person who you have gotten to know fairly well, but not as well as some of the most important people who may be in your life. This lawyer says to you “hey – so this judge: his deal is to only let us size up the jury panel and if a new prospective juror replaces someone – we can only strike him or her and not use a strike just because we do not like the make-up of the panel as a decision-making body.”
Crazy, right?
First a little legal jargon explained: a “peremptory” challenge or strike is a challenge to a prospective juror during the voir dire process for absolutely no reason so long as it is not an illegal reason, such as gender or race. “Voir dire” is the term for the process of the trial during which prospective jurors are examined for their background or beliefs including life experiences.
In “People v Yarborough” – the Michigan Supreme Court had a chance to right some wrongs. The law seemed to support that, if a trial court judge (in other words, your judge on your case who is refereeing the “game” as it were) prohibited attorneys from using all of the allotted peremptory challenges, then that is what we call an error of the highest magnitude. It is called “reversible error.”
In Yarborough, the trial court judge prohibited the attorney for Mr. Yarborough from using peremptory strikes for jurors who had already – for lack of a better way of putting it – survived a round of strikes already. The problem with this boundary is that when you try to read people as a group, whether it is 12 people for a felony in the State of Michigan … or 6 people for a misdemeanor … it is important to understand the psychology of group dynamics. Here, Mr. Yarborough’s attorney wanted to strike a juror on whom he had “passed” in a prior round of opportunities to strike that same juror.
Justice Bernstein wrote the majority opinion in the case, stating that for over 100 years, violating an accused’s right to have his fate decided by the jury of his choosing was a constitutional violation that required automatic reversal: “Michigan caselaw has recognized that the appropriate remedy for the erroneous denial of a peremptory challenge is automatic reversal even though this right is not constitutionally mandated,” (Slip Op. p 12).
The opinion succinctly nails the problem with trial judges imposing limits on the ability to strike a prospective juror based on the make-up of the jury:
“Defendant’s ability to issue peremptory challenges throughout the voir dire process was limited from the outset by the trial court’s policy forbidding such challenges to previously seated prospective jurors. This necessarily limited defendant’s ability to strategically consider the final composition of the jury,” (Slip Op. p 13).
This ruling really is a critical one, because it creates a uniform rule that allows the attorneys to “pass” on a peremptory challenge based on the dynamic of the personalities in the jury box and then use a peremptory later if that make-up changes and a prospective juror who might have been “marginal” for the theory of the case should be stricken if a different prospective juror gets in the box.