PEREMPTORY CHALLENGES

Peremptory challenges are challenges given to both parties to a litigation allowing them to dismiss prospective jurors during jury selection without having to give a reason. In recent years, the Supreme Court has recognized constitutional limits on peremptories; as a result, there are some circumstances in which a reason must be given for challenging a juror.

In both federal and states courts, prospective jurors are summoned from the community for jury service. They are assigned to panels, known as venires, and from the venire a jury is selected. Before a prospective juror is seated on a jury, however, there is a process during which the judge and/or attorneys question the prospective juror; this questioning is known as voir dire. One purpose of voir dire, whether it is conducted by the judge or by the attorneys, is to ensure that the jurors selected to serve on the jury can be impartial; those who cannot be impartial will be removed.

There are two ways to remove a prospective juror from a jury. One way is for an attorney to raise a challenge "for cause." The attorney must give a reason for such a challenge. Among accepted reasons are that the prospective juror is related to one of the participants in the trial, or that the prospective juror has admitted that he or she cannot be impartial in the case. The decision whether to grant a for-cause challenge is up to the trial judge. Trial judges do not grant for-cause challenges readily, perhaps because there is another way for attorneys to remove a prospective juror from the jury.

The second way to remove a prospective juror is through the use of a peremptory challenge. In every trial, whether in state or federal court or whether the trial is for a civil or criminal matter, the parties are allotted a certain number of peremptory challenges. The number varies, depending on the type of case and whether it is in federal or state court. The number of peremptories is provided by statute and/or by court rules. For example, according to federal statute, in federal court in a civil trial each side is entitled to three peremptory challenges. According to a federal rule, in federal court in a criminal trial, the number of peremptories varies depending on the type of offense charged. For example, if the offense charged is punishable by imprisonment for more than one year, the prosecutor is entitled to six peremptories, whereas the defendant is entitled to ten.

The exercise of a peremptory challenge, unlike the exercise of a for-cause challenge, is ordinarily left to the attorney's discretion. Attorneys can use their allotted peremptories to remove prospective jurors with whom they feel uncomfortable or whom they believe might not be impartial. Usually the attorney does not have to give a reason to explain why he or she is using a peremptory challenge to dismiss a particular juror.

A recent line of Supreme Court cases, however, has identified a few circumstances in which attorneys must give reasons for their peremptories. In swain v. alabama (1965), the Court held that if an African American defendant could show that in case after case a prosecutor was exercising peremptory challenges to exclude prospective jurors who were of the defendant's race, then the defendant would have established that the prosecutor was violating the defendant's right to equal protection of the laws under the fourteenth amendment to the Constitution. In Swain, the Court set an evidentiary burden for the defendant so high that only the rare defendant could meet it. As a result, individual prosecutors who were of a mind to discriminate could continue to use peremptories to exclude jurors based on race.

Twenty years later, the Court revisited the issue in batson v. kentucky (1986). The Court in Batsonoverruled the evidentiary burden established in Swain, and held that a defendant could establish that the prosecutor violated his right to equal protection based on the prosecutor's use of peremptories in his case alone. In Batson, the Court tried to strike a balance between preserving the peremptory and preventing it from perpetuating racial discrimination . Batson requires a defendant to establish a prima facie case that the prosecutor used peremptories based on race. To establish this, the defendant must show that he or she is a member of a cognizable racial group; that the prosecutor had exercised peremptories to remove from the venire prospective jurors of the defendant's race; and that these and other circumstances raise an inference of discrimination. After defendant's prima facie showing, the burden shifts to the prosecution to offer a race-neutral reason for its challenges. The trial judge determines whether the prosecution's reason is race neutral; if it is, then the peremptory is permitted; if it is not, then the peremptory is prohibited.

This modification of the peremptory was clearly a compromise, and left critics on both sides dissatisfied. Justice thurgood marshall, writing a concurrence in Batson, urged that peremptories be eliminated so that they could no longer be used in a discriminatory manner, whereas Chief Justice warren e. burger, writing in dissent, claimed that no reason should ever have to be given for the exercise of a peremptory and to the extent that Batson required a reason, it signaled the demise of the peremptory challenge.

In recent cases, the Court has extended the reach of Batson. In Powers v. Ohio (1991), the Court held that a defendant did not have to be of the same race as the excluded juror to raise a Batson challenge. In Edmonson v. Leesville Concrete Co. (1991), the Court extended Batson to civil cases, and in Georgia v. McCollum (1992), the Court held that the defense, just like the prosecution, could not exercise peremptories based on race. Most recently, in J. E. B. v. Alabama (1994), the Court held that peremptories could not be exercised based on gender.

Nancy S. Marder
(2000)

Bibliography

Abramson, Jeffrey 1995 We, the Jury. New York: Basic Books.

Alschuler, Albert W. 1989 The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts. University of Chicago Law Review 56:153–233.

Hoffman, Morris B. 1997 Peremptory Challenges Should Be Abolished: A Trial Judge's Perspective. University of Chicago Law Review 64:809–871.

Marder, Nancy S. 1995 Beyond Gender: Peremptory Challenges and the Roles of the Jury. Texas Law Review 73:1041–1138.

Montoya, Jean 1996 The Future of the Post-Batson Peremptory Challenge: Voir Dire by Questionnaire and the "Blind" Peremptory. University of Michigan Journal of Law Reform 29:981–1030.