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.
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