Concept
Peremptory Challenges
Selection and composition of juries
Peremptory Challenges
After voir dire, the parties may challenge jurors, which means asking that they be excused from this case.1 A challenge for cause needs a ground the judge will accept. A peremptory challenge needs none: it lets a party exclude a potential juror for any reason at all, and the reason need not be stated.2 Rule 47(b) governs the number. It directs that the court must allow the number of peremptory challenges provided by 28 U.S.C. § 1870.3 The rule supplies no count of its own, so the statute answers both how many strikes a party has and who counts as a party. The first subsection takes up the count. The second takes up the strike itself: what a party may do with it, and what the Constitution does and does not say about it.
The pool the strikes work on was drawn by design. The Jury Selection and Service Act aims to select juries at random from a fair cross-section of the community, to give all citizens a chance at jury service, and to prevent discrimination on the basis of race, color, religion, sex, national origin, or economic status.4 It pursues those aims by requiring voter lists as the source of jurors and objective criteria for disqualifications, exemptions, excuses, and exclusions.5 The peremptory is where party choice enters that design. By careful use of their challenges, trial attorneys shape the character of each jury. Beyond the statutory count, the limit is constitutional: a party cannot use peremptories to exclude jurors on the basis of race or gender, because doing so violates the excluded jurors' constitutional rights.6
The Statutory Allotment
The statute fixes the number. In civil cases each party is entitled to three peremptory challenges. Several plaintiffs or several defendants may be considered a single party for making challenges, or the court may allow additional challenges and permit them to be exercised separately or jointly.7 That one sentence holds three rules: a per-party number, a merger of same-side parties, and a discretion in the court to depart from the merger.
Because the court does not inquire into the reason for a peremptory, the count is the plain measure of how much of the device a party may use, apart from the constitutional limit on race and gender. Each party gets three.
The merger works by arithmetic. Four plaintiffs who join in one suit hold three strikes among them, not twelve, unless the court allows more. A side's allotment therefore does not grow with the number of parties the pleadings happen to join.
The court's discretion is the release valve. It may allow additional challenges and permit them to be exercised separately or jointly, so co-parties on one side whose interests diverge can ask for strikes of their own. Whether to grant the request is for the court.
The same statute sets the civil number, so a civil answer uses three per party and does not borrow a criminal count. In the federal system each side has twenty peremptories in a capital case and three in a misdemeanor case, while in a felony trial the defendant has ten and the prosecution six.8 The court's refusal in the second hypothetical rests on the rule and the statute together.9
Strikes Without Stated Reasons
A peremptory challenge removes a prospective juror for any reason at all, and the party need not state it.11 In Swain v. Alabama the Supreme Court described the essential nature of the device as a challenge “exercised without a reason stated, without inquiry and without being subject to the court's control.”12 The party owes the court no explanation, and the court neither inquires into the choice nor controls it.
Edmonson v. Leesville Concrete Co. captures the traditional picture. A peremptory “allow[s] parties” to exclude potential jurors, and “its exercise is left wholly within the discretion of the litigant.” It is an “arbitrary and capricious species of challenge” on which a party may act upon the “sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another.”13 That is the baseline. The constitutional limit on race and gender strikes, taken up in the next section, restricts the grounds a party may act on even though no explanation is ordinarily required.14
The most concrete use is the juror a lawyer distrusts but cannot disqualify. An attorney can reject persons who reveal too little bias to merit a challenge for cause but who the attorney feels will be prejudiced against the client or case.15 The peremptory also shields the cause challenge. Questioning to test a cause challenge may so alienate a potential juror that, although the lawyer has established no basis for removal, the process itself has made it necessary to strike the juror peremptorily.16
Two further justifications concern legitimacy. The strike “teaches the litigant, and through him the community, that the jury is a good and proper mode for deciding matters and that its decision should be followed,” because in a real sense the jury belongs to the litigant who chooses it. It also “avoids trafficking in the core of truth in most common stereotypes,” by making unnecessary the grounding of cause challenges in claims of group bias, thus allowing “the covert expression of what we dare not say but know is true more often than not.”17 The bar on race- and gender-based strikes now limits how far a party may act on group stereotypes, and the next section takes it up.18
How the court assembles the group affects how strategic a strike can be. A method that first examines and qualifies a large group of jurors, the struck-jury method, is perhaps more time consuming but allows more strategic use of peremptories. At each strike a party sees the total number of persons from whom the final jury will be formed, so it can always exclude the person most objectionable to it.19
None of these justifications makes peremptories a constitutional entitlement. Swain itself recognized that “there is nothing in the Constitution of the United States which requires the Congress [or the States] to grant peremptory challenges,” though the challenge is “one of the most important of the rights secured to the accused.”20 Edmonson states the source of the right: peremptories are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of persons who otherwise would satisfy the requirements for service on the petit jury.21 A civil litigant's strikes are therefore exactly what the statute grants, and a fourth cannot be claimed as a constitutional right. The statutory source matters again in the next section. Without the authorization granted by an Act of Congress itself, the defendant in Edmonson could not have engaged in the challenged conduct.22
The first strike shows the peremptory at work: the lawyer acted on a suspicion with nothing a judge could verify behind it. The second juror shows why a party should reach for the cause tool whenever a demonstrable ground exists, because a strike left unspent stays available for the next doubtful juror.