peremptory challenge

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Peremptory Challenge

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 peremptory 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 in order 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 are 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.

In an extension of Batson, the Supreme Court of Connecticut ruled that the Equal Protection Clause barred the prosecutor from striking prospective jurors based on their religious affiliation. The court, in State v. Hodge, 726 A.2d 531 (Conn.1999), distinguished religious beliefs and religious affiliations. It held that litigants could strike prospective jurors whose religious beliefs would prevent them from performing their duties as jurors.

Further readings

Beck, Cobrun R. 1998."The Current State of the Peremptory Challenge." William and Mary Law Review 39 (February).

Fahey, William F. 1996. "Peremptory Challenges." Federal Lawyer 43 (October).

Hoffman, Morris B. 1997. "Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective." University of Chicago Law Review 64 (summer).

Schwartz, Edward P., and Warren F. Schwartz. 1996. "The Challenge of Peremptory Challenges." Journal of Law, Economics & Organization 12 (October).


Case Law; Federal Courts; Jurisdiction; Jury; Trial.

peremptory challenge

n. the right of the plaintiff and the defendant in a jury trial to have a juror dismissed before trial without stating a reason. This challenge is distinguished from a "challenge for cause" (reason) based on the potential juror admitting bias, acquaintanceship with one of the parties or their attorney, personal knowledge about the facts, or some other basis for believing he/she might not be impartial. The number of peremptory challenges for each side will differ based on state law, the number of parties to a case, and whether it is a civil or criminal trial. The usual phraseology used by lawyers exercising the challenge is "Juror number seven may be excused." (See: jury, challenge for cause, voir dire)

peremptory challenge

noun absolute challenge, arbitrary challenge, axiomatic challenge, certain challenge, challenge as of right, challenge within prerogative, concluuive challenge, decision challenge, discretionary challenge, final determining challenge, guaranteed challenge, objeccion as of right, positive challenge, rejection as of right, right to eliminate jurors, self-determined challenge, unperrtive challenge, unrestricted challenge
Associated concepts: challenge for cause

peremptory challenge

the right to challenge jurors without having to give a reason or show cause. It was abolished in England and Wales by the Criminal Justice Act 1988 and in Scotland by the Criminal Justice (Scotland) Act 1995.
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33) We found that prosecutors in North Carolina capital cases between 1990 and 2010 exercised peremptory challenges against black potential jurors at twice the rate as jurors of other races, even after controlling for alternative grounds for removal.
This Comment contributes to these debates by noting a different disparity that peremptory challenges engender.
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Threats to democracy and other harms are qualitatively different when caused by prosecutorial peremptory challenges than when caused by defense peremptory challenges; (16) the need for the peremptory challenge is stronger on the part of the defense than on the part of the prosecution; (17) and there is at least some indication of differential policing of the peremptory challenge that imposes a more effective restraint on the defense's use of the peremptory challenge than on the prosecution's.
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For cause challenges are used when there is actual, determinable bias, (173) while peremptory challenges are used to strike jurors whom lawyers believe, but cannot prove, to be biased.
While a federal appellate court can vacate a verdict reached by a jury selected in a process tainted by the discriminatory exercise of peremptory challenges in violation of Batson, there seem to be no circumstances in which a federal appellate court should vacate a verdict reached by a jury selected after the erroneous sustaining of Batson objections to the use of peremptory challenges.
The Court diluted Batson's power to combat racial discrimination through the use of peremptory challenges in Purkett v.
prosecutor who used peremptory challenges impermissibly, since no
1996) (In addition to empanelling impartial members, voir dire "is used by counsel as a means of developing a rapport with members, indoctrinating them to the facts and the law, and determining how to exercise peremptory challenges and challenges for cause.
This Note demonstrates that Snyder is part of a historical pattern of Supreme Court decisions concerning the use of peremptory challenges in which the Court has moved away from permitting the unfettered use of the peremptory challenge in favor of stronger Equal Protection considerations.
O'Connell, The Elimination of Racism from Jury Selection: Challenging the Peremptory Challenge, 32 B.