Peremptory Challenge

A peremptory challenge allows a party in a jury trial to remove a potential juror from the venire without offering a justification, distinguishing it from a challenge for cause, which requires demonstrating bias or statutory disqualification. The device is rooted in common-law practice and survives in most U.S. state and federal courts, though the number of strikes available is capped by statute or court rule and varies by the type of case (capital, felony, misdemeanor, or civil).

In U.S. federal practice, the allotments are set by 28 U.S.C. § 1870 (civil cases — three per side) and Federal Rule of Criminal Procedure 24(b), which provides twenty peremptories per side in capital cases, ten for the defense and six for the prosecution in non-capital felonies, and three each in misdemeanors.

The most significant constitutional limit comes from Batson v. Kentucky, 476 U.S. 79 (1986), in which the Supreme Court held that the Equal Protection Clause forbids prosecutors from striking jurors solely on the basis of race. The doctrine was extended to civil litigants in Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), to criminal defendants in Georgia v. McCollum, 505 U.S. 42 (1992), and to gender-based strikes in J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994). A Batson challenge proceeds in three steps: a prima facie showing of discrimination, a race-neutral explanation from the striking party, and a judicial determination of purposeful discrimination.

Critics — including Justice Thurgood Marshall in his Batson concurrence — argue that peremptories invite covert bias and should be abolished. Arizona became the first U.S. state to eliminate peremptory challenges in both civil and criminal trials, effective 1 January 2022. England and Wales abolished them in criminal cases through the Criminal Justice Act 1988. Many civil-law jurisdictions never adopted the practice at all.