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3 Green Bag 2d 135 (1999-2000)
Peremptory Challenges

handle is hein.journals/grbg3 and id is 147 raw text is: Peremptory Challenges LAwrERs ARE FROM MARS, JUDGES ARE FROM VENUS Morris B. Hoffman L ET ME BEGIN by explaining what I'm not going to talk about. I'm not going to give you practical advice about how to exercise your peremptory challenges intelli- gently. In fact, the only practical advice I want to give you is to remind you that the word is spelled peremptory not preemptory. I don't want to talk about whether peremptory chal- lenges are constitutional' or about their weird and misunderstood history.2 What I do want to talk about is the follow- ing strange phenomenon: trial lawyers love peremptory challenges and trial judges don't. This line cuts across virtually every political philosophy, every area of practice, and every set of criteria you can think of. It doesn't mat- ter if you're a conservative or a liberal, a defense lawyer or a plaintiffs' lawyer, a prose- Judge Hoffman sits on the District Court for the Second Judicial District (Denver), State of Colorado. This essay is based on a speech he gave to the Colorado Defense Lawyers' Association on March 17, 1999, in Denver. The opinions he expresses here are of course his own, and are not meant to reflect the views of the District Court for the Second Judicial District or any of his colleagues on that Court. i It may be only a matter of time before the Supreme Court gives up on Batson (Al Alschuler has called this event Bedtime for Batson). Albert W. Alschuler, The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review ofJury Verdicts, 56 U. CHi. L. RE. 153, 199 (1989). I also suspect that if that ever does happen, peremptory challenges themselves may not survive either the fair cross-section requirement of the Sixth Amendment or the Equal Protection Clause of the Fourteenth Amendment. z Al Alschuler's wonderful article in the University of Chicago Law Review contains a good discussion about the parallel development of the English trial jury and the English peremptory challenge. Note i, supra. Judge Ray Broderick's article in the Temple Law Review also has a really good section on the history of the peremptory challenge. Raymond W. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 TEMPLE L. Rav. 369 (1992). My article in the University of Chicago Law Review focuses on both the English and pre-English history of the peremptory challenge, and the connection, or rather lack of connection, between the two. Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A TrialJudge's Perspective, 64 U. CHi. L. REv. 809 (1997). 135

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