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Vail Daily column: Peremptory challenges and challenges for cause

“Just ’cause.”

That’s the basis of a peremptory challenge. And that’s a world different than “because.”

Let me explain.



What peremptory challenges and challenges for cause have to do with is voir dire.

If I, as an attorney in the trial, simply don’t like the trim of your jib, then I can simply cut you off. I can bid you a pleasant adieu, “just ’cause.” Without ’splainin’ a doggone thing.

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OK, OK, I can hear you scratching your head from here.



So, once again, please permit me.

Voir dire — literally, from the French for “to see to speak” — is the preliminary examination a court may make of a witness or potential juror where his or her competency, interests, etc. is objected to. It the process of questioning of prospective jurors by a judge and attorneys in the court before he or she is seated on a jury.



Searching or bias

Voir dire is used to determine if a juror is biased, cannot deal fairly with the issues or if there is cause to not allow a potential juror to serve (“cause” may consist of knowledge of the facts; acquaintanceship with parties, witnesses or attorneys; an occupation — say, for example, a career in law enforcement — which might lead to bias; prejudice against the death penalty; or previous experiences such as having been sued in a similar case).

One of the purposes of the voir dire is for the attorneys to get a feel for the personalities and likely views of the people who may be seated on the jury. In some courts the judge asks most of the questions (I have been in federal court where the judge has asked all the questions), while in others the lawyers are given substantial latitude and time to ask the potential jurors questions.

‘Jury consultants’

There are even “jury consultants” in cases that warrant it (death penalty cases and high damages civil cases for example). The consultant, most times with stunning accuracy, “profiles” the kind of juror who may be sympathetic to your case.

There are also, most times, juror questionnaires that, similarly, try to get at any prejudices or predispositions that might affect a potential juror’s ability to serve impartially.

If you’ve ever been called to jury duty, then you’ve likely seen — or perhaps even experienced — voir dire in action. A potential juror is called into the jury box and peppered with questions by the judge and/or attorneys for each side. Only after voir dire is completed, is a jury seated and does the trial begin.

OK, now …

Some jurors may be dismissed “for cause” and others may be excused in “peremptory” challenges. So we’re sort of back to where we started.

Just ‘cause, no ‘splainin’

A peremptory challenge is a species of challenge which a party is allowed to have against a certain number of jurors without assigning any cause. The number of peremptory challenges is set before jury selection begins. In other words, if I, as an attorney in the trial, simply don’t like the trim of your jib, then I can simply cut you off. I can bid you a pleasant adieu, “just ’cause.” Without ’splainin’ a doggone thing.

A challenge “for cause” is different. First of all, peremptory challenges are limited. Each side, for example, may get half a dozen “peremptories.” Use ’em up and you’re out of Skittles. Whereas a peremptory challenge may be made “without justification,” a challenge for cause may only be exercised for a stated reason. “Your Honor, we move to strike juror number 15 because he is an avowed KKK grand dragon and the accused is … eh-hem … an African American.” Something like that. Because challenges for cause are, well … “for cause,” the potential number of potential jurors who may be excused is virtually unlimited.

That said, however, the judge will not accept just any old explanation. Instead, the stated reason must be justified and accepted by the judge as valid.

Types of witnesses

An attorney, or the judge, may also voir dire a potential witness (yes, we sometimes use “voir dire” as a verb) or a potential expert witness, the difference between a “fact” witness and an “expert witness” being that only the latter can express opinion. A “fact” witness is limited to testifying what he or she has experienced through his or her senses and perception.

In the case of voir diring an alleged expert, counsel (out of the presence of the jury) can ask questions asked to determine the alleged expert’s competence and qualifications.

At the end of the day, all of this is meant to ensure impartiality and fairness.

If an accused — or a defendant in a civil trial — is going to metaphorically be hung up by his thumbs — or else found faultless — judges, lawyers and the whole judicial system want to ensure the process has been as fair as human beings can make it.

A “for cause” challenge is for cause. A peremptory is … just ’cause. Between the two, the boat of judicial impartiality is kept evenly afloat. What may seem, to those unfamiliar with the process, as attorneys or the judge “grilling” a potential juror is really an attempt to get to a just result. And in the end, that is, and should always be, the goal.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, robbins@slblaw.com or robbins@colorado.net.


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