Peremptory Challenges

Peremptory challenges are one of the most intriguing remaining bastions of “hunch stereotyping” remaining in the legal system. During voir dire, each attorney can dismiss a set number of jurors for almost any reason without having to show cause. Such jurors are then dismissed from service and sent home. Until 1986, peremptory challenges required no explanation and could be used for any reason in a particular case, and but for a very limited exception (a pattern of discrimination across a number of cases, and the burden of proof on the defense to establish this discrimation—see, Swain v. Alabama, 1965) attorneys were free to use their peremptories as they wished. Since 1986, however, two variables, and only these two, are forbidden fruits for justifying a peremptory challenge. In the landmark case Batson v. Kentucky (1986), the Supreme Court ruled that race could no longer be used by the prosecutor or the state as the reason for a peremptory challenge. Unlike Swain, a pattern of discrimination across a number of cases no longer had to be shown, and the burden of proof was now on the side exercising the peremptory challenges, and not on the side questioning the challenging of minorities. In subsequent cases, the Court extended the prohibition against using race in peremptory challenges to attorneys in civil cases (Edmonson v. Leesville Concrete Co., 1991), and to defense attorneys in criminal cases (Georgia v. McCollum, 1992). Finally, in 1994, the Court reached a similar conclusion about the unconstitutionality of using gender to peremptorarily challenge a juror (J.E.B. v. Alabama ex rel. T.B., 1994).

Given the limitations that the Court has put on the use of peremptories, one wonders if they should still be allowed in the courts, or should they simply be abolished? Justice Thurgood Marshall argued for abolition in his concurrence in Batson, stating that “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” (p. 107). The Rehnquist Court, however, seems to be moving in just the opposite direction. Justice Antonin Scalia has tried to push the court to roll back the limits on peremptory challenges. He has argued on several occasions that the Constitution does not bar lawyers from eliminating jurors on any basis and that such limits are an obstacle to justice. The rest of the Court seems to be moving closer to Scalia's views. In a per curiam 7‐to‐2 decision, the Court overturned an Eighth Circuit Court ruling and agreed that the Missouri Supreme Court was correct in upholding a prosecutor's explanation for dismissing a juror because he had long hair (Purkett v. Elem, 1995).

The future of the peremptory challenge is unclear. Though the peremptory challenge was always viewed somewhat ambivalently, until Batson it was largely unfettered by legal constraints. Will the Court reverse its decisions limiting the use of the peremptory challenge or simply decide that such matters are not worth the Court's time? Given the direction the Court has taken, the latter seems to be the more likely outcome. What is clear, though, is that the current situation is not a “stable one” and that Batson opened the floodgates for further examination of the nature of challenges in jury selection.

— Milton Heumann

The right to challenge a juror without assigning, or being required to assign, a reason for the challenge.

During the selection of a jury, both parties to the proceeding may challenge prospective jurors for a lack of impartiality, known as a challenge for cause. A party may challenge an unlimited number of prospective jurors for cause. Parties also may exercise a limited number of peremptory challenges. These challenges permit a party to remove a prospective juror without giving a reason for the removal.

Peremptory challenges provide a more impartial and better qualified jury. Peremptory challenges allow an attorney to reject a potential juror for real or imagined partiality that would be difficult to demonstrate under the challenge for cause category. These challenges, however, have become more difficult to exercise because the U.S. Supreme Court has forbidden peremptory strikes based on race or gender.

Parties do not have a federal constitutional right to exercise peremptory challenges. Peremptory challenges are granted by statute or by case law. The number of challenges is usually determined by statute, but some jurisdictions allow the trial court to grant additional peremptory challenges. In federal court each side is entitled to three peremptory challenges. If more than two parties are involved in the proceeding, the court may either grant additional challenges or restrict the parties to the minimum number of challenges.

Peremptory challenges came under legal attack in the 1980s. Critics claimed that white prosecutors used their peremptory challenges to remove African Americans from the jury when the criminal defendant was also African American because the prosecutors thought that the potential jurors would be sympathetic to a member of their own race. This constituted racial discrimination and a violation of the Fourteenth Amendment's Equal Protection Clause.

The U.S. Supreme Court, in Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), prohibited prosecutors from excluding prospective jurors on the basis of race. Under the Batson test, a defendant may object to a prosecutor's preemptory challenge. The prosecutor then must "come forward with a neutral explanation for challenging black jurors." If the prosecutor cannot offer a neutral explanation, the court will not excuse the juror.

The Court extended this holding in criminal proceedings in two later cases. In Powers v. Ohio, 499 U.S. 400, 111 S. Ct. 1364, 113 L. Ed. 2d 411 (1991), the Court broadened the Batson rule by stating that a defendant need not be of the same race as the excluded juror to successfully challenge the juror's exclusion. In Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), the Court held that the defense's exercise of peremptory challenges to strike African American jurors on the basis of their race was equally forbidden. Previously, the court had ruled in Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S. Ct. 2077, 114 L. Ed. 2d 660 (1991), that in civil trials a private party could not exclude prospective jurors on account of their race by using peremptory challenges. This series of decisions makes any racial exclusion in jury selection constitutionally suspect.

The Supreme Court has also forbidden peremptory challenges based on gender. In J. E. B. v. Alabama, 511 U.S. 127, 114 S. Ct. 1419, 128 L. Ed. 2d 89 (1994), the Court ruled that striking jurors on the basis of gender serves to perpetuate stereotypes that were prejudicial and based on historical discrimination. No overriding state interest justified peremptory challenges on the basis of gender. Permitting gender-based strikes could also have undermined the Batson holding, because gender might be used as an excuse for racial discrimination.

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