During jury selection, attorneys use peremptory challenges strategically to remove jurors they believe may be unfavorable to their client without needing to articulate a specific legal basis. Unlike challenges for cause, which require a demonstrated bias, peremptory challenges allow attorneys to act on intuition and trial strategy. If opposing counsel suspects a pattern of race- or gender-based strikes, they may raise a Batson challenge, requiring the striking party to provide a race- or gender-neutral explanation. The judge then determines whether the proffered reason is pretextual.
Attorney: "Your Honor, the defense would like to exercise a peremptory challenge and thank Juror Number 7 for their time."
Opposing Counsel: "Your Honor, I raise a Batson challenge. The prosecution has used four of its six peremptory challenges to strike African American jurors." Judge: "Counsel for the prosecution, please provide a race-neutral explanation for each strike."
Judge: "Counsel, you have exhausted your peremptory challenges. You may still challenge for cause if grounds exist."
Students often confuse peremptory challenges with challenges for cause. Peremptory challenges require no stated reason but are numerically limited, while challenges for cause require a specific basis of bias but are unlimited in number.
Federal courts allow 3 peremptory challenges per side in civil cases (28 U.S.C. § 1870). State allocations differ substantially — some allow 6-10 or more per side even in civil cases. States also vary in how they implement Batson hearings and what additional protected categories they recognize.
Batson v. Kentucky, 476 U.S. 79 (1986)
Held that using peremptory challenges to exclude jurors solely based on race violates the Equal Protection Clause, establishing the three-step framework for challenging discriminatory strikes.
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
Extended the Batson prohibition to gender-based peremptory challenges, holding that intentional sex discrimination in jury selection violates equal protection.
Flowers v. Mississippi, 588 U.S. 284 (2019)
Reversed a conviction where the prosecutor struck 41 of 42 Black prospective jurors over six trials, reaffirming that courts must consider the totality of circumstances in Batson analysis.
| Peremptory Challenge | Challenge for Cause |
|---|---|
| No reason required (subject to Batson) | Must demonstrate specific bias or disqualification |
| Limited number per side | Unlimited in number |
| Cannot be based on race or gender | Based on actual or implied bias |
| Exercised at attorney's discretion | Ruled upon by the judge |
| Strategic tool for jury composition | Ensures juror impartiality |
| May be used for hunches or preferences | Requires articulable grounds |
How many peremptory challenges does each side get?
In federal criminal cases, each side receives 10 peremptory challenges for felonies (6 for misdemeanors) under Rule 24. In federal civil cases, each side receives 3 under 28 U.S.C. section 1870. State courts vary significantly, with some allowing more challenges in capital cases.
Can a peremptory challenge be used to strike jurors based on race?
No. Batson v. Kentucky (1986) prohibits the use of peremptory challenges to exclude jurors based on race. This protection has been extended to gender (J.E.B. v. Alabama) and applies to both criminal and civil cases. If a Batson challenge is raised, the striking party must provide a race-neutral explanation.
What is the difference between a peremptory challenge and a challenge for cause?
A peremptory challenge allows removal of a juror without stating a reason (subject to Batson limits), while a challenge for cause requires demonstrating actual or implied bias. Peremptory challenges are limited in number; challenges for cause are unlimited but must be supported by specific grounds.
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