New York County Lawyers Association 14 Vesey Street New York, NY 10007-2992 (212) 267-6646 Fax (212) 406-9252 www.nycla.org President Michael Miller President-Elect Norman L. Reimer Vice President Edwin David Robertson Secretary M. Robert Goldstein Treasurer Marjorie E. Gross Report and Resolution of the Criminal Justice Section of the New York County Lawyers' Association Opposing any Proposal Under Consideration by the Commission on the Jury to Reduce in Number or Eliminate Peremptory Challenges in Criminal Trials Immediate Past President Craig A. Landy Executive Director Marilyn J. Flood This Report and Resolution was approved by the Executive Committee of the New York County Lawyers' Association at its regular meeting on October 27, 2003. At the meeting of the Criminal Justice Section on October 8, 2003, the Section discussed the potential for a proposal to reduce or eliminate the number of peremptory challenges in criminal trials now under consideration by the Commission on the Jury appointed by Chief Judge Kaye. It was reported that the Commission heard proposals suggesting such changes as part of an overall effort to improve the efficiency of the voir dire process in both civil and criminal matters. The Section members identified the probable motivation for such changes as a result of a misplaced belief that such reduction will: (a) eliminate the prejudicial use of peremptory challenges in violation of Batson; (b) reduce the amount of time necessary to select juries in criminal matters; and (c) reduce the number of jurors called for jury service who do not actually serve on a jury. The Section members, prosecutors, defense lawyers and members of the judiciary alike, universally opposed any reduction in number or elimination of peremptory challenges. A subcommittee was appointed to investigate the matter further and articulate the Section s objections. The Subcommittee has reviewed the available information, including testimony of witnesses at the public hearings held on the matter in New York, Albany and Buffalo since June 2003, and identified many principled objections to the proposal, among them:
1. The underlying goal of the criminal justice system is justice, not mere efficiency, and any reduction in the number of peremptory challenges threatens to elevate efficiency over justice. 2. The proposals expose a fundamental misunderstanding of the role of peremptory challenges in that they presume counsel exercise peremptory challenges solely out of bias or whim when, in fact, experienced attorneys, prosecution and defense alike, acting in good faith excuse jurors when they have reason to believe that the juror will be prejudiced or refuse to decide a case with an open mind and based solely upon the evidence and the law. 3. Reducing or eliminating the number of peremptory challenges would increase the need to pursue challenges for cause when an attorney suspects bias or unfitness, which in turn would result in: a. An increase in the length of the voir dire process and the numbers of jurors actually challenged peremptorily (sufficient to offset any gains achieved by reducing or eliminating peremptory challenges) as a result of the extra time spent on cause challenges and exhaustion of peremptory challenges. b. An increase in the need for attorneys to pursue and establish grounds on the record for challenges for cause - likely resulting in a worsening of jurors feelings about the experience - where heretofore attorneys have been able to successfully excuse a juror when the attorneys have reason to believe that the juror is biased or unfit without the necessity of exploring and proving the bias or unfitness to a judge as a matter of record. c. An increase in the purposeful exhaustion of remaining peremptory challenges in order to preserve for appeal denials of cause challenges, resulting in increased appellate litigation. 4. The perceived problem of underutilization of jurors called for service fails to take into account three essential reasons for excusing large numbers of jurors: a. In New York City, with its diverse population, many potential jurors seek to be excused, justifiably, because they know they will have difficulty understanding all aspects of the language they may encounter in a particular case although they may meet the nominal qualifications under Judiciary Law 510 in that they understand and are able to communicate in the English language. More than 170 different languages and dialects are spoken by the nearly 35% immigrant population of the City, and while many may communicate well enough to pass the jury commissioner s perfunctory evaluation of their language proficiency, they and the parties recognize that their level of fluency may inhibit efficient and effective deliberations that would negatively affect both the due process rights of the accused and the fairness of the proceedings brought by the State. 2
b. In New York City, a large percentage of persons responding to a call for jury service seek and are granted excusal for good reason, including many for whom jury service would be an extreme hardship or who are otherwise unable to serve because they are: self-employed; employed in small businesses; suffering medical disabilities (including psychiatric and drug-related problems); caring for other elderly or disabled persons; working two-jobs; working on a per-diem basis without recompense for jury service; or enrolled in school while working. c. Many jurors are called but necessarily excused because they are not available to serve for an unusually lengthy case, which is a particular problem in New York County where the judicial system has underway, at any given time, numerous grand juries, special long-term investigating grand juries (some lasting eighteen months), and cases involving complex litigation that last for months on end. 5. Reducing or eliminating the number of peremptory challenges would eliminate three common uses of peremptory challenges regarded by prosecutors, defense attorneys and judges as beyond the reach of cause challenges: a. Peremptory challenges allow attorneys to eliminate the stealth juror, that is, a juror who harbors a disqualifying prejudice but who is sophisticated enough to answer the questions of counsel and the court appropriately and to articulate the expurgatory oath (that they can be fair and impartial). b. Peremptory challenges allow attorneys to eliminate jurors on the ideological or social fringe, whose world view may render it unlikely, in the judgment of counsel, for the juror to accept the arguments of counsel and/or the position of the party in the case or ultimately reach a verdict in a case. c. Peremptory challenges allow trial attorneys, who are intimately knowledgeable about the facts of their case, to eliminate a juror who will be confronted during trial with facts (known at voir dire only by counsel) that are likely to (or may) render the juror unable to pay attention to the evidence or maintain his or her impartiality. 6. In the last decade, because the number of cases, especially felony cases, has been dramatically reduced as a direct result in the reduction of the overall crime rate in the city and state, resulting in a concomitant reduction in the time pressures faced by the courts, perceptions and data suggesting a historical problem with the burden voir dire places on courts is probably not borne out by current circumstances. 3
Respectfully, Susan J. Walsh Nathaniel Kiernan Co-Chair, Criminal Justice Section Subcommittee Chair Hon. James Yates Frank A. Bress Supreme Court Justice New York Visiting Professor, New York Law School Co-Chair, Criminal Justice Section Member, Criminal Justice Section 4
Resolution This Resolution was approved by the Executive Committee of the New York County Lawyers' Association at its regular meeting on October 27, 2003. Whereas, in or about April, 2003, Chief Judge Judith S. Kaye appointed the Commission on the Jury (the Commission ), a special commission comprised of 28 members, including judges, prosecutors, defense attorneys, civil litigators and jury commissioners from across the state, to investigate and recommend ways to better utilize the time of citizens who report for jury service; and Whereas, since June, 2003, the Commission has been holding public hearings across the state to solicit testimony from citizens, the bar and the judiciary soliciting information concerning the efficient utilization of jurors time and ideas on how to improve the use of jurors time, including in particular: (a) determination of juror qualifications during voir dire; and (b) reducing juror waiting time during trial; and Whereas, after a review of the testimony adduced to date, including the questions and comments of various commissioners, as well as the testimony of the various witnesses, it appears that some witnesses favor a reduction in number, or elimination, of peremptory challenges in criminal trials, either by amendments to the Criminal Procedure Law or by administrative rule; and Whereas, from the testimony adduced, it appears that the claimed justification for reducing or eliminating peremptory challenges in criminal trials is to: (a) eliminate the prejudicial use of peremptory challenges in violation of Batson; (b) reduce the amount of time necessary to select juries in criminal matters; and (c) reduce the number of jurors called for jury service who do not actually serve on a jury; and Whereas, the Criminal Justice Section of this Association, having studied the matter, in a written report dated October 24, 2003, recommended to this Board that the Association adopt a resolution opposing the reduction in number or elimination of peremptory challenges in criminal trials for reasons stated in the report, including a determination that a reduction in the number of peremptory challenges will not achieve its stated goals and will, instead, impede the fair administration of justice and aggravate problems associated with jury service; it is hereby RESOLVED, that the Board of Directors of the New York County Lawyers Association hereby opposes the reduction in number or elimination of peremptory challenges in criminal trials, and calls upon the organized bar, particularly prosecutors, criminal defense attorneys and judges who preside over criminal trials, to actively oppose proposals to the Commission on the Jury to reduce in number or eliminate peremptory challenges in criminal trials. 5