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Savanna R. Leak

Abstract

In the United States, the relative allocation of peremptory challenges afforded to the defense and prosecution is at once in a state of paralysis and flux. The federal system maintains an unequal allocation of peremptory challenges between the defense and prosecution in noncapital offenses, while many states have moved toward equalization of the number of peremptory challenges afforded to each side over the last few decades. Currently, only five states and the federal system have retained an allocation of peremptory challenges that affords the defense a greater number of peremptory challenges in noncapital offenses. Further, only nine states and the federal system maintain an unequal allocation of peremptory challenges in any capacity. This inconsistency strikes a chord fundamental to the fairness of our justice system, especially in light of the Supreme Court’s failure to eliminate the discriminatory exercise of the peremptory challenge in Batson. This Comment argues that, at this time, the federal system and remaining states should not move toward equalizing the number of peremptory challenges afforded to the defense and prosecution because allocating a greater number of peremptory challenges to the defense best serves theoretical fairness in the justice system, including maintaining the community’s perception the justice system’s fairness. Additionally, allocating a greater number of peremptory challenges to the defense serves actual fairness by reducing opportunities for prosecutors to use peremptory challenges in a discriminatory manner. Finally, this Comment takes the novel approach of considering how the “progressive prosecution” movement may justify movement toward equalization in the future, by shifting the community’s perception of fairness and by increasing actual fairness in the exercise of peremptory challenges.

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