Today and tomorrow the lawyers in the Dzhokhar Tsarnaev trial will be exercising their peremptory challenges. Opening statements will begin on Wednesday. Opening statements are not evidence and they are not arguments. They are statements by the lawyers describing the witnesses they intend to call and the evidence they intend to introduce. Think of them as roadmaps of the case.

To understand peremptory challenges, consider the following example.

Assume that a potential juror, whom we shall call AB, insists that he can fairly and impartially decide on the basis of the evidence introduced in court whether Dzhokhar Tsarnaev is guilty as charged in the 30 count indictment that alleges that he and his older brother Tamerlan conspired to construct and detonate two improvised explosive devices near the finish line of the Boston Marathon. Further assume that he lived in the Boston area when the IEDs exploded killing three people, including a child and injuring 260, many of them severely. Also assume that he followed the case in the local and national media and told others at various times that he believed the brothers were guilty.

AB would have survived a challenge for cause because he insists that he can fairly and impartially decide the case on the basis of the evidence introduced in court.

The purpose of a peremptory challenge is to provide an alternate means to dismiss a potential juror who cannot successfully be challenged for cause. A lawyer does not have to provide a reason to justify a peremptory challenge and for that reason each side is limited to a certain number of peremptory challenges. In the Tsarnaev trial each side has 20 peremptory challenges regarding the 12 members of the jury and 3 peremptory challenges regarding the 6 alternates.

Defense counsel might want to use a peremptory challenge to dismiss AB because they might suspect he is attempting to lie his way onto the jury. Alternatively, they might want to get rid of him because they do not think he realizes how difficult it is to change your mind after you have formed an opinion and expressed it to others.

The counter argument to keep him would be that he might bend over backwards and require more than proof beyond a reasonable doubt to overcome the presumption of innocence.

Additional factors to consider would be whether he is a leader or a follower, whether he would influence others to agree with him, and whether he might stand up to others and hang the jury.

Would you strike AB?

Why or why not?

Frederick Leatherman

Frederick Leatherman

I am a former law professor and felony criminal defense lawyer who practiced in state and federal courts for 30 years specializing in death penalty cases, forensics, and drug cases.

I taught criminal law, criminal procedure, law and forensics, and trial advocacy for three years after retiring from my law practice.

I also co-founded Innocence Project Northwest (IPNW) at the University of Washington School of Law in Seattle and recruited 40 lawyers who agreed to work pro bono, assisted by law students, representing 17 innocent men and women wrongfully convicted of sexually abusing their children in the notorious Wenatchee Sex Ring witch-hunt prosecutions during the mid 90s. All 17 were freed from imprisonment.