Jury Selection: Bill Cosby and Peremptory Challenges

In court papers filed this week, lawyers for entertainer Bill Cosby asked a judge to lift the limits of a criminal rule of procedure to grant the defense team and prosecutors 20 peremptory challenges, each, when jury selection begins for Cosby’s sexual assault trial.

Bill Cosby Arrest Photo/Courtesy Montco DA's Office

Currently, Pennsylvania Rule of Criminal Procedure 634 dictates that, in trials involving a non-capital felony case, and when there is only one defendant, prosecutors and the defendant each are entitled to only seven peremptory challenges.

While impaneling a jury, the prosecution and defense can challenge the selection of a particular juror “for cause” – that is, the lawyer must show that a prospective juror isn’t qualified because a specific circumstance exists. For example, I’ve seen many people excused from jury service because they either had medical problems or knew witnesses and victims or a lot about a particular case.

But the prosecution and defense teams also can challenge a potential juror without having to give any specific reasons. For example, a lawyer may not like a juror’s answer to a particular question, a juror’s occupation, a juror’s manner or the tattoos they’re sporting. However, those challenges, known as “peremptory challenges,” are limited in number.

When lawyers run out of peremptory challenges they can be forced to accept jurors that they really don’t favor and so that’s why the selection process can be very tricky.

In Pennsylvania, in trials involving capital murder, and when there is only one defendant, each side is entitled to 20 peremptory challenges. In trials involving misdemeanors only, prosecutors and a defendant are entitled to five peremptory strikes.

Where the charge is felony aggravated indecent assault, of which Cosby is charged, each side is entitled to only seven peremptory challenges.

Defense lawyer Brian J. McMonagle, citing “the extraordinarily widespread media attention” garnered by the Cosby case, requested more than the usual seven peremptory challenges in his motion for jury selection protocol. Cosby wants 20 for each side.

Brian J. McMonagle/Photo by Carl Hessler Jr.

But District Attorney Kevin R. Steele objected to the request.

“Even if the commonwealth agreed to this scheme, which it will not, and even if the court wanted to permit additional peremptory strikes, the limits set by Rule 634 are firm and final,” Steele wrote in court papers. “It is well-settled and easily found precedent that the right to peremptory challenges is established by law, and the trial court does not have the power to increase the number of challenges. This is true even in high-profile cases where the defendant may believe they are entitled to special treatment.”

Montco DA Kevin R. Steele/Submitted Photo

“Therefore, no matter how many additional peremptory strikes defendant may think he needs or is entitled to, he is not permitted to have more than any other similarly situated criminal defendant,” Steele continued. “Defendant is not entitled to, nor does he deserve, anything more or anything less than any other citizen facing criminal charges.”

After reading Rule 634, I would have to agree that it appears trial judges don’t have the discretion to increase the number of peremptory challenges unless it is a trial that involves joint defendants.

Stay tuned. Judge Steven T. O’Neill holds a hearing on Cosby’s request to lift the limits on peremptory challenges on Monday, April 3.

While peremptory challenges have been part of the justice system for hundreds of years and while some argue peremptory challenges are necessary to remove biased jurors, I never thought peremptory challenges were realistic, believing they allowed lawyers to hide under the umbrella of not having to state a cause and still preclude jurors because they didn’t like their gender or race.

In a 1986 U.S. Supreme Court case, Batson v. Kentucky, the high court ruled lawyers cannot use peremptory challenges to dismiss jurors based simply on their race.

Should peremptory challenges be eliminated altogether from the U.S. jury selection process? I would love to know what you think. Feel free to leave your comments below.