After a recent jury selection in Cook County, I walked away feeling more convinced than ever that this part of a trial is one of the most important. We call it “jury selection,” but it’s not really about picking the perfect jurors. It’s about figuring out who can’t fairly sit on the case. What struck me this time was just how much of the process comes down to bias, the kind people openly admit, and the kind they don’t even realize they carry.
The American Society of Trial Consultants put out a paper on the elimination of peremptory challenges, and the ABA issued Formal Opinion 517 on discrimination in jury selection. Read side by side, they spotlight the same debate we’ve all wrestled with in courtrooms: do we still need peremptories, and if so, how do we keep them from being abused?
Peremptories have always been controversial, but they’ve also been around forever as a tool to make sure juries are fair. The ASTC points out something every trial lawyer knows: judges don’t always grant cause challenges, even when bias seems clear. And voir dire is often too short or too shallow to really get to the heart of someone’s thinking. In those moments, peremptories are a safety net. They give lawyers a way to remove a juror who doesn’t feel right for the case. Without that option, we risk seating jurors who can’t be impartial.
But the ABA reminds us of the other side of the coin. Formal Opinion 517 makes clear that using peremptories in a discriminatory way isn’t just bad practice, it’s unethical. Striking someone because of race, gender, religion, or other protected categories can’t be brushed off as “strategy.” And lawyers can’t pass the blame onto clients, consultants, or even software. If counsel knows, or should know, that a strike is discriminatory, the responsibility is theirs.
This leaves us in a narrow lane. On the one hand, peremptories are still critical for ensuring fairness. On the other hand, the ethical ceiling is non-negotiable: they can’t be used as shortcuts for stereotypes. That means our reasons for striking jurors have to be tied to the actual case, to attitudes or experiences that matter, not surface-level assumptions.
Of course, that’s tough when voir dire doesn’t give us much to work with. The ASTC notes jurors tend to be less honest with judges than with lawyers, and most people aren’t even fully aware of their own biases. Asking, “Can you set that aside?” usually gets the answer the judge wants to hear. It doesn’t tell us how a belief might shape deliberations. And when voir dire doesn’t dig deep enough, peremptories often get used in ways that risk crossing lines.
The way forward probably isn’t to throw out peremptories altogether but to improve how we uncover bias in the first place. The ASTC calls for better juror questionnaires, more time for attorney-led voir dire, and open-ended questions that let jurors talk about their experiences in their own words. That gives us a stronger record and a fairer chance to present challenges instead of leaning too heavily on peremptory objections.
Meanwhile, the ABA opinion is a reminder that as lawyers, they have to set the standard themselves, explain every strike, and be confident that it could withstand scrutiny. Suppose it’s tied to a juror’s experiences or beliefs, fine. If it even looks like it’s tied to race, gender, or another protected trait, it’s not. That responsibility rests upon the lawyers, regardless of outside pressure.
My recent experience in jury selection reminded me of what’s really at stake. Jurors may not know exactly why they were struck, but they can tell whether the process feels fair. And that sense of fairness matters, not just for one verdict, but for public trust in the whole system. Used responsibly, peremptories help preserve that fairness. Used carelessly, they undermine it.
Jury selection in the future is going to require more thought, more transparency, and more discipline. Peremptories probably aren’t going away anytime soon, with the exception of Arizona, but their survival depends on us using them the right way, which is to protect impartiality, not to exploit bias. Striking that balance, between practical necessity and ethical responsibility, is what will keep jury selection credible, and what will keep our justice system worthy of the trust we ask people to place in it.
References:
American Bar Association, Standing Committee on Ethics and Professional Responsibility. Formal Opinion 517: Discrimination in the Jury Selection Process. 9 July 2025.
American Society of Trial Consultants. ASTC Position Paper on the Elimination of Peremptory Challenges: And Then There Were None… 1 May 2024.
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