Also known as: perempt · perempts · perempted · perempting · peremptory challenge · peremptory writ
Written by attorneys — see sources below.
A challenge exercisable against a prospective juror without any showing of cause or bias. The number of such challenges allotted to each side is fixed by statute or rule in both civil and criminal trials. Discriminatory exercise of these challenges on the basis of race or gender violates the Equal Protection Clause.
Pablo Perez faces federal charges carrying more than one year in prison. During jury selection the court grants the government six peremptory challenges and Pablo ten. Pablo uses his tenth strike to remove a juror the government had hoped to keep.
Priscilla Parks, a Black defendant, notices the prosecutor has struck every Black venire member. She makes a prima facie showing of racial motivation. The prosecutor must then supply a race-neutral reason for each strike.
Prime Logistics sues Prosperity Investments in federal court. The judge must provide each side the three peremptory challenges required by statute. The court refuses to reduce that number despite scheduling pressure.
Priya Prasad represents a female plaintiff. Defense counsel strikes every female venire member solely because of gender. The court sustains Priya's objection because such strikes violate equal protection.
Parker Phillips, a private defendant in a civil suit, strikes Black jurors on racial grounds. The court treats the strikes as state action because jury selection occurs under judicial supervision. The strikes are disallowed.
Phuong Pham is convicted after a juror later admits racial animus influenced deliberations. The court permits inquiry into that bias even though it arose during peremptory-challenge screening. The verdict is set aside.
In 2007, two teenage sisters were sexually assaulted in the bathroom of a Colorado horse-racing facility. The girls identified the assailant as a racetrack employee, and police arrested Miguel Angel Peña-Rodriguez. Each girl separately identified him as the man who assaulted her. State prosecutors charged Peña-Rodriguez with harassment, unlawful sexual contact, and attempted sexual assault on a child. Before the jury was empaneled, members of the venire received a written questionnaire asking if anything would make it difficult to be a fair juror. The court and defense counsel repeatedly asked prospective jurors whether they could be fair and impartial. None of the empaneled jurors expressed reservations based on racial bias. After a three-day trial, the jury convicted Peña-Rodriguez of unlawful sexual contact and harassment but failed to reach a verdict on the attempted sexual assault charge. When the jury was discharged, the court gave the mandated instruction that whether jurors discussed the case was their own decision. Following discharge, two jurors remained in the jury room to speak privately with defense counsel. They reported that during deliberations another juror, identified as H.C., had expressed anti-Hispanic bias toward Peña-Rodriguez and his alibi witness. With the trial court's supervision, counsel obtained sworn affidavits from the two jurors. The affidavits stated that H.C. said Mexican men had a bravado that caused them to believe they could do whatever they wanted with women. The affidavits further stated that nine times out of ten Mexican men were guilty of being aggressive toward women and young girls. H.C. believed Peña-Rodriguez was guilty because he is Mexican and Mexican men take whatever they want. H.C. did not find the alibi witness credible because the witness was an illegal. The trial court acknowledged H.C.'s apparent bias. It denied Peña-Rodriguez's motion for a new trial on the ground that Colorado Rule of Evidence 606(b) generally prohibits a juror from testifying about statements made during deliberations in a proceeding inquiring into the validity of the verdict. A divided panel of the Colorado Court of Appeals affirmed, agreeing that the statements did not fall within an exception to the rule. The Colorado Supreme Court affirmed by a 4-3 vote. The United States Supreme Court granted certiorari to decide whether there is a constitutional exception to the no-impeachment rule for instances of racial bias.
View caseThe government receives six and the defendant receives ten when the offense is punishable by more than one year in prison. The court may allow additional challenges for multiple defendants but must respect the statutory baseline.
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A defendant must first make a prima facie showing that peremptory challenges were exercised on racial grounds. The burden then shifts to the striking party to offer a race-neutral explanation. The court finally determines whether purposeful discrimination has been proven.
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No. Federal rules require the court to allow the number of peremptory challenges provided by statute. Judicial concerns about time or complexity cannot override that mandatory allocation.
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Yes. Strikes exercised solely on the basis of a juror's sex are unconstitutional. The same three-step framework used for race applies to gender discrimination in jury selection.
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Yes. Jury selection is a traditional public function conducted with court participation, making private strikes state action. Racially discriminatory use therefore violates the Equal Protection Clause.
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…Swain v. Alabama recognized that a defendant could make out a prima facie case of purposeful discrimination on proof that the peremptory challenge system was being perverted, the Court went on to observe that a defendant could not establish a prima facie case of racial discrimination solely on proof of the prosecutor's use of…