Also known as: peremptory challenges · peremptory strike
Written by attorneys — see sources below.
A procedural mechanism allowing a party to excuse a prospective juror without stating a reason or showing cause. The mechanism is limited by equal protection principles that bar strikes based solely on race or gender. In federal court the total number available to each side is fixed by statute or rule.
Perry Pratt faces federal bank-robbery charges punishable by more than one year in prison. During voir dire the government uses its sixth peremptory challenge to remove a prospective juror while the defense still holds four unused strikes. The court allows both sides to continue exercising their allotted challenges until the statutory totals are reached.
Phuong Pham, a Black defendant, notices the prosecutor has struck every remaining Black venire member. Pham makes a prima facie showing of racial motivation. The prosecutor offers a race-neutral explanation and the trial court determines whether purposeful discrimination has been proved.
Paula Pierce sues Peak Performance in federal court for breach of contract. The judge announces each side will receive the number of peremptory challenges required by statute. Pierce objects when the court proposes to reduce that number for scheduling reasons.
Preston Pratt, a male plaintiff, objects when defense counsel strikes all remaining male venire members solely because of their sex. The court applies equal-protection scrutiny to determine whether the strikes rest on gender alone.
Pilar Pena sues Platinum Partners in federal court. Defense counsel uses peremptory challenges to remove all Black venire members. Pena objects that the private defendant’s strikes constitute state action subject to equal-protection limits.
Paige Porter is convicted after the prosecutor exercised several peremptory challenges. A juror later reveals that racial animus influenced deliberations. The court considers whether the earlier strikes and the new evidence together require further inquiry into the fairness of jury selection.
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.
In a federal case punishable by more than one year in prison the government receives six peremptory challenges and the defendant or defendants jointly receive ten. The court may grant additional challenges when multiple defendants are tried together.
The objecting party must first establish a prima facie case of racial discrimination. The burden then shifts to the striking party to offer a race-neutral explanation. The trial court decides whether purposeful discrimination has been proved.
…During jury selection at his trial, the judge conducted voir dire and excused certain jurors for cause. The prosecutor then used peremptory challenges to strike all four black persons on the venire, and a jury composed only of white persons was selected. Defense counsel moved to discharge the jury before it was sworn on the ground that…
…a realization of the myriad of opportunities for racial considerations to influence criminal proceedings: in the exercise of peremptory challenges, Batson v. Kentucky, supra ; in the selection of the grand jury, Vasquez v. Hillery , 474 U. S. 254 (1986); in the selection of the petit jury, Whitus v. Georgia , 385 U. S. 545 (1967);…
…racial discrimination in the selection of jurors. See Strauder v. West Virginia , 100 U. S. 303. It prohibits the use of peremptory challenges to exclude jurors on the basis of race. See Batson v. Kentucky , 476 U. S. 79. It prohibits a prosecutor from making racially biased arguments to the jury. See McCleskey v. Kemp , 481 U.…
…do not eliminate the similarly situated showing for selective-prosecution claims because their contexts differ: Batson concerns peremptory challenges in the presence of the trial judge who observes the seating process, and Hunter involved convincing direct evidence of a law's discriminatory purpose and demonstrable disparate impact…
…a defendant may establish a prima facie Batson violation by relying on all relevant circumstances, including the fact that peremptory challenges constituted a jury shuffle, the disparate questioning of black and white venire members, and the use of a “jury shuffle” to manipulate the panel’s racial composition. Id. , at 416–417. The…
No. The civil rules require the court to allow the number of peremptory challenges provided by statute. Time-management concerns do not authorize a reduction below that statutory floor.
Yes. The Equal Protection Clause forbids strikes based solely on a juror’s sex. The prohibition applies to both prosecutors and private litigants participating in state-run jury selection.
Yes. Jury selection is a traditional public function conducted with significant court participation. Private parties therefore may not use peremptory challenges in a racially discriminatory manner.