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Abolish Peremptories? Silence Judges First

A Colorado trial judge named Morris B. Hoffman is today enjoying his fifteen minutes of fame. In an op-ed piece in The New York Times, the jurist calls for the immediate abolition of the use of peremptory challenges during jury selection. Let's hope that by day's end, Judge Hoffman, and his ideas, are returned to the obscure netherworld both so richly deserve.

Hoffman first begins with an appeal to the pathetic: Look how long it took the jury to be picked in the O.J. Simpson case. (One month.) Was that because of the use of peremptory challenges? I doubt it. Judge Lance Ito became a national joke given his inabiiity to manage any part of that proceeding.

Peremptory challenges are vital not because, as Hoffman suggests, lawyers use them to insult venirepersons by excluding them for facial tics and Zodiac signs. They are necessary because the nation is awash in judges who, like Hoffman, have made a fetish of efficiency.

Every trial lawyers knows the importance of making a record, and even a school child knows the difference between word and deed. A venireperson can often give answers that, on the cold face of the record, seem just fine and dandy. Absent from such records are the grimaces, the pregnant pauses, and, yes, the influence that judges bring to bear on prospective jurors to just end the tedium of jury selection and get a panel seated.

Ask a prospective juror sometime if it would bother them if your client, in a criminal case, did not testify. Some jurors hestiate, and say it might. A judge steps in at such a time, and says: "If I told you that you could not consider a failure to testify, could you follow my instruction?" Oh, yessir, the venireperson replies. That record supports seating the juror. But there is a whole lot more to explore, if the lawyer is permitted to inquire. But many judges, such as Hoffman, are efficiency freaks: Shorn of any other way to demonstrate success of competence, they seek to close files and manage their docket efficiently. As though justice and efficiency were synonyms.

Peremptories are necessary because speech is ambiguous, and because judges too often influence the proceedings by asking stupid, leading questions at pivotal moments that direct jurors away from candor and toward conformity.

Do away with peremptory challenges? No. But a rule requiring judges to sit still and be quiet while lawyers select jurors would be appropriate. There are too many clod-like Morris Hoffman's strutting around in black robes and behaving as though trial were an inconvenience.

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