peremptory challenge


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Related to peremptory challenge: challenge for cause

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).

Cross-references

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

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.
References in periodicals archive ?
trial lawyers want to relinquish the peremptory challenge."); Jeff
On the other side of the spectrum, North Dakota took an early, giant leap from the typical Batson analysis to recognize gender as an impermissible reason to use a peremptory challenge on a juror before the United States Supreme Court addressed this issue in J.E.B.
(6) See, e.g., Baldus et al., supra note 1, at 121-30 (summarizing findings concluding that venire member race was "a major determinant in the use of peremptory challenges by both prosecutors and defense counsel" in Philadelphia County capital murder trials); Grosso & O'Brien, supra note 2, at 1554 (presenting the results of a fully controlled logistical model showing that qualified black jurors face odds 2.48 higher than all other jurors of being struck); Mary R.
Here, the relevant statistical question is whether the number of black jurors excluded by the prosecutor in a given case is statistically significantly larger than the number of black jurors that we expect would be excluded if the prosecutor exercised her peremptory challenges randomly.
Kentucky line of cases, the Court forbade the lawyers choosing a jury from considering the race or gender of jurors when exercising peremptory challenges. (12) The rule does not aim to protect jury diversity; indeed, the Supreme Court reasoned that the race and gender of jurors is irrelevant to the jury's decision making.
Nevertheless, comparative analysis has proved useful in assessing the reliability of trial court decisions accepting prosecutors' explanations for peremptory challenges that exclude minority jurors from capital juries, even in the wake of the Court's retreat in Purkett.
whether the erroneous denial of a peremptory challenge was harmless
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.") (citation omitted).
Voir dire should be sufficient to disclose grounds for challenges for cause and to facilitate intelligent exercise of peremptory challenges.
or (2) excluded by the court on the ground that such person may be unable to render impartial jury service or that his service as a juror would be likely to disrupt the proceedings, or (3) excluded upon peremptory challenge as provided by law, or (4) excluded pursuant to the procedure specified by law upon a challenge by any party for good cause shown, or (5) excluded upon determination by the court that his service as a juror would be likely to threaten the secrecy of the proceedings, or otherwise adversely affect the integrity of jury deliberations.
Kentucky(13) the Supreme Court held that the state cannot use peremptory challenges to exclude veniremembers from the jury solely because they, like the defendant, are black.(14) According to the Court in Batson, the Equal Protection Clause of the Fourteenth Amendment bars the state from exercising a peremptory challenge against a veniremember based on nothing more than the veniremember's race.(15) Under Batson, if a defense attorney objects to a prosecutor's peremptory challenge as race-based, the prosecutor must come forward with a plausible race-neutral reason for the challenge.