Please ensure Javascript is enabled for purposes of website accessibility

Dennis M. Sweeney: How many strikes are enough?

Last September, three men were tried together in Baltimore City Circuit Court for the murder of former Baltimore City Councilman Kenneth Harris. Given that the charges carried the possible sentence of life imprisonment and there were multiple defendants, Judge David Ross, a retired judge recalled to handle the case, was faced with a daunting challenge: how to assure that there were enough qualified jurors to try the case.

Under Maryland Rule 4-313 and Section 8-420 of the Courts and Judicial Proceedings Article, where imprisonment for life is possible, each defendant in a multiple defendant case is entitled to 20 peremptory strikes, and the State is permitted 10 for each defendant in selecting the 12 jurors.

For each alternate juror, each defendant gets two more peremptory challenges and the State gets one challenge for each defendant — meaning that it potentially takes 10 qualified prospective jurors to obtain one alternate.

For a five-week trial, Judge Ross estimated that he would need at least four alternates along with the 12 jurors. Thus, the overall number of qualified prospective jurors needed was as follows:

12 jurors

4 alternates

28 strikes for Defendant No. 1

28 strikes for Defendant No. 2

28 strikes for Defendant No. 3

+ 42 strikes for the State

________

142 qualified prospective jurors needed

To be certified as qualified, prospective jurors first would have to be questioned about the length of trial and any excuses they had, as well as being questioned for cause.

There were obvious constraints to the process. The courtroom where the trial was conducted could only hold about 150 prospective jurors for questioning, and there were only so many jurors who could be questioned in a single day.

Despite the challenges, Judge Ross and the lawyers questioned 722 jurors in marathon sessions over five days to reach the desired number. A small cushion of extra prospective jurors was built in, since it was realized that some jurors found qualified could develop reasons for excuse before the actual day of jury selection.

On the day the jury was selected, all the potential jurors qualified over the five days returned to the courtroom. In selecting the 12 jurors, the three defendants each used five peremptory strikes and the State used two. Together, the parties left 73 strikes or 81 percent unused. The jury was seated using the first 30 potential jurors who had been found qualified. The four alternates were seated with all the parties using only nine peremptory strikes, leaving 27 strikes or 75 percent unused.

It is instructive to compare what would have happened if a similar case had been tried a few blocks away in the U.S. District Court.

Under Federal Rule of Criminal Procedure 24, in a non-capital felony case, the government has six peremptory challenges and the three defendants jointly would have 10 peremptory challenges. Where four alternates are selected, each side would get two additional challenges.

The number of qualified prospective jurors needed when a three-defendant non-capital murder trial with four alternates is tried in federal court would be as follows:

12 jurors

4 alternates

12 strikes for all three defendants jointly

+ 8 strikes for the government

________

36 qualified prospective jurors needed

The fact that the two systems differ so substantially in the number of peremptory strikes does not mean that one is superior to the other, but there are questions that can be asked about Maryland’s system and whether some adjustments to it would be reasonable.

Where in excess of 700 jurors are being questioned to get to a number of 142 within the space of a few days, one would expect that the emphasis of all the participants becomes getting to the number, and the individual questioning of each juror can be less than probing.

Usually, counsel and the parties are standing at the bench while each juror is being individually questioned by the judge in a way that the responses are not overheard by other prospective jurors. When this goes on for days, it becomes an endurance contest for all involved, and it is fair to ask whether the quality of inquiry of each prospective juror suffers when there is such pressure to obtain so many qualified jurors.

In the Harris case, only 21 percent of all peremptories available were used when it came time to select the jury and the alternates. I am told by trial judges and others that this is what frequently occurs in multiple-defendant cases. If this is borne out by a more systemic study, perhaps adjustments should be made.

It is not cost-free to maintain the present system. Jurisdictions such as Baltimore City that have the highest number of murder cases also have the most difficult time in assuring that enough qualified jurors are available to handle the heavy volume of cases. Potential jurors are a scare resource, and if the system can be modified without impairing a fair trial, perhaps it is worth further study to see if changes in Maryland law are warranted.

One modest proposal would be to eliminate the automatic grant of the full complement of peremptory strikes to each defendant in a multi-defendant case. As noted above, the federal rule requires defendants to exercise the strikes jointly. If this proposal is considered too extreme, then an approach could be taken to allow each defendant the full complement of peremptories only upon a showing of need for extra strikes.

A ready analogy is available in the Maryland civil rule. Rule 2-512(h) requires multiple parties on the same side of a case to be considered as one for purposes of peremptories unless “the court determines that adverse or hostile interests” between the parties justifies additional strikes for each individual party.

A less modest proposal would be to reduce the number of each defendant’s strikes from 20 to a lesser number. Maryland is on the very high end compared to other states in the number of strikes allowed, and some adjustment may make sense. It would be a reasonable trade-off to accompany any reduction in the number of strikes with expanded voir dire of prospective jurors so that those selected as prospective jurors are more fully vetted for cause than at present.

It could also make sense to adjust the number of peremptories available to challenge alternate jurors to the lesser number provided by the federal rule. Giving all the parties collectively nine strikes to select a single alternate as was required in the Harris case seems clearly excessive.

In Batson v. Kentucky, 476 U.S. 79, 102-103,107 (1986), Justice Thurgood Marshall observed that “[t]he decision today will not end the racial discrimination that peremptories inject into the jury selection process. That goal can be accomplished only by eliminating peremptory challenges entirely … . The inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the Court to ban them entirely from the criminal justice system.”

In the two decades since Justice Marshall’s recommendation, there has been little inclination by the bench, bar or General Assembly to fully abolish peremeptories, but it may make sense to again look at their use in multiple-defendant criminal cases to make sure that they are accomplishing their goal of providing fair trials without unduly impairing the jury selection system.

This column is one in an occasional series on jury trial issues by Howard County Circuit Judge Dennis M. Sweeney, retired, who chairs the Judiciary’s Committee on Jury Use and Management. Judge Sweeney can be reached at judgesweeney@mac.com.