Peremptory Challenge Allotments

Challenges for cause cannot reach a juror whom a side distrusts but cannot show to be disqualified, and the peremptory challenge exists to fill that gap. It lets a side remove a prospective juror without stating a reason, and each side receives only a limited number of them.¹ Such a challenge may ordinarily be "exercised without a reason stated, without inquiry, and without being subject to the court's control."² The court therefore does not examine why a juror was struck, although it remains bound by the number the governing rule allows. The freedom serves a practical need, because challenges for cause alone cannot ensure an impartial jury. A juror may be suspected of partiality and still refuse to admit it or fail to recognize it, and a strike that needs no justification reaches that juror.³ The same freedom lets a side remove jurors it believes to be biased, often by intuition or from intangibles such as body language, even though voir dire did not prove the partiality.⁴

A peremptory challenge exists only because a rule or statute creates it. A litigant would have no peremptory challenges at all if the law of the jurisdiction did not provide them, and federal law supplies them in federal court while state law supplies them in state court.⁵ In federal criminal trials the supplier is Rule 24(b), which entitles each side to the number of peremptory challenges the rule specifies.⁶ That origin explains why the number can be capped, since a right created by rule can be sized by rule. A cap forces each side to rank its doubts about jurors instead of removing every juror it dislikes, so the strikes go to the jurors the side fears most. Tying the cap to the severity of the charge then gives each side more room to screen jurors in the cases where more is at stake.

Rule 24(b) sorts cases into three tiers by the seriousness of the charge and gives each tier its own count. The lead-in adds a provision for trials of more than one defendant: the court may allow additional peremptory challenges to multiple defendants, and it may allow them to exercise those challenges separately or jointly.⁷ Because the tiers depend on the charge and on what the government seeks, the allotment is found by running the case through them in order. The next four sections teach each part of that allotment in turn.

Exam Analysis Steps

Because the felony tier is labelled "Other Felony Case," the tiers are best tested in descending order of seriousness, beginning with the capital tier.⁸ The steps are these:

Ask whether the government seeks the death penalty; if it does, each side has 20 peremptory challenges.⁹
If the government does not seek death, ask whether the defendant is charged with a crime punishable by imprisonment of more than one year; if so, the government has 6 peremptory challenges and the defendant or defendants jointly have 10.¹⁰
If the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both, each side has 3 peremptory challenges.¹¹
Where several defendants are tried together, ask whether the court has allowed additional peremptory challenges and whether it has allowed the defendants to exercise them separately or jointly.¹²

The usual error is to read no stated reason as no limit at all. The freedom from explanation concerns the striker's motive. It leaves intact the numerical cap that Rule 24(b) imposes and the equal protection limit on strikes made because of race.

The second limit explains why this tool receives so much attention in the rest of this chapter. A strike that needs no explanation is a strike whose real motive can stay hidden, and the standing criticisms of the practice are that peremptories often diminish the representativeness of the jury and that they can be used to exclude jurors on illegitimate and invidious grounds.¹³ In Holland v. Illinois the Court rejected the claim that the Sixth Amendment limits the grounds on which peremptory challenges may be exercised.¹⁴ The limit therefore comes from the Equal Protection Clause, which is violated when a prosecutor or a defense lawyer exercises a peremptory challenge solely because of a venireperson's race or gender.¹⁵ The strikes that the tiers below allocate are the strikes Batson v. Kentucky regulates, and the Batson test taught later in this chapter applies to every one of them.

Key Exam Rule

Peremptory challenge allotments

A peremptory challenge removes a prospective juror without a stated reason or inquiry, and it exists only because federal or state law creates it.¹⁶ Rule 24(b) fixes each side's number by the severity of the charge: 20 per side when the government seeks the death penalty; 6 for the government and 10 for the defendant or defendants jointly when the defendant is charged with a crime punishable by imprisonment of more than one year; and 3 per side when the crime is punishable by fine, imprisonment of one year or less, or both.¹⁷ The court may allow additional peremptory challenges to multiple defendants and may allow them to exercise those challenges separately or jointly.¹⁸ The freedom to strike without a reason yields to the equal protection limit of Batson v. Kentucky once the opposing party makes a prima facie showing that a strike was based on race, ethnicity, or sex.¹⁹

Felony Cases

Rule 24(b)(2) governs the case that sits between the capital tier above it and the misdemeanor tier below it, and the rule's own caption calls it the "Other Felony Case."²⁰ When the defendant is charged with a crime punishable by imprisonment of more than one year, the felony allotment applies: the government has 6 peremptory challenges and the defendant or defendants jointly have 10.²¹ The trigger is a feature of the charge. The text asks what the crime is punishable by, so the inquiry looks to the penalty the offense carries, which is fixed when the charge is filed, rather than to the sentence a judge might later impose. That reading fits the timing of jury selection, because each side must know its allotment before the first juror is struck, long before any sentence exists.

The tier begins at a precise line. A crime punishable by more than one year falls here, while a crime punishable by one year or less drops into the misdemeanor tier, which gives each side fewer strikes.²² Because the rule is written in terms of a threshold, the only question on the felony side of the line is whether the maximum penalty clears one year. The label a jurisdiction attaches to the offense and the seriousness of the facts do not enter into it.

The usual slip occurs at the line itself. A crime punishable by exactly one year does not satisfy the requirement of imprisonment of "more than one year," so it belongs to the misdemeanor tier and not to this one.²³ A student who sees a one-year maximum and reflexively reaches for the felony numbers has read the threshold as "one year or more," which is not what the rule says.

Two features of the allotment have their own logic. The rule does not announce why the defense receives four more strikes than the government, but the structure points to an answer. The accused alone stands to lose liberty, and the defendant has no other way to remove a juror who seems unfavorable yet cannot be shown disqualified for cause, so a larger share gives the person facing the penalty more room to screen the panel. A felony also carries enough at stake to justify a meaningful number of strikes beyond the minimal allotment for lesser crimes. The word "jointly" does the second job.²⁴ The number of defendants in a trial depends on how the case is charged and joined, which has nothing to do with how serious the charge is. If each of three co-defendants held 10 separate strikes, the defense side would hold 30 against the government's 6, and the side's strength would grow with the size of the indictment. Sharing one pool of 10 ties the defense total to the severity of the charge instead. The court's power to depart from the shared default is taken up in the multiple-defendants section below.

The next section moves up a tier, to the capital case, where the trigger is what the government seeks.

Capital Cases

Rule 24(b)(1) is the top tier of the allotment and the simplest to state: each side has 20 peremptory challenges when the government seeks the death penalty.²⁶ This capital allotment differs from the felony tier in two ways that show on the face of the rule. The number is far larger, more than three times the government's 6 and twice the defendant's 10 in an ordinary felony trial.²⁷ And the number is the same for both sides, whereas the felony tier gives the defense four more strikes than the government. Because the capital tier sets the two sides equal, a student who remembers the felony tier's 6 and 10 should not carry that imbalance upward into this tier.

The trigger is whether the government seeks death, and the label on the offense does not decide the count. Murder is the offense most associated with capital punishment, yet a murder charge by itself does not call for 20 strikes. Where the government files notice that it will seek the death penalty on a murder charge, each side has 20 peremptory challenges.²⁸ Where the same murder is charged and the government does not seek death, the capital tier does not apply, and the felony allotment of 6 for the government and 10 for the defendant or defendants jointly controls.²⁹ The one fact that moved the answer is the government's position on the penalty. The rule keys to that fact for a practical reason. Each side must know its number before the first juror is struck, so the allotment has to rest on something already settled when selection begins. The government's decision to seek death is such a fact, while the sentence a jury might eventually return is not, which means a trial in which the government sought death and the jury later declined to impose it was still a 20-strike case.

Hypothetical Illustration

A defendant is tried for first-degree murder, and the government states before jury selection that it will not seek the death penalty. Defense counsel, assuming that every murder trial carries the capital allotment, plans to spend up to 20 strikes and uses the first ten on jurors who seem unfriendly. The felony tier governs, so the defense had 10 strikes and the government 6. When an eleventh juror causes the same unease, counsel has none left, and since the juror's answers show no ground for cause, the juror sits. Change one fact: the government instead files notice that it will seek death. Each side now has 20, and counsel's plan works as intended. The variable that moved the count is the government's position on the penalty, which has nothing to do with the name of the crime.

The larger allotment follows the stakes. When the government seeks death, the harm from seating one biased juror is at its greatest, and the jury's decision about the sentence depends heavily on each juror's attitudes toward the penalty and toward the defendant. Doubts about those attitudes will often fall short of cause, and the earlier discussion of challenges for cause showed that a doubt of that kind can be acted on only by a peremptory strike. More strikes give each side room to remove the jurors it fears most without exhausting its allotment on the first few it meets. The rule does not announce why the two sides are equal, but its structure suggests a reason. The defendant has the obvious interest in screening out jurors inclined toward a death sentence, and the government, having chosen to ask for that sentence, has a matching interest in screening out jurors unlikely to return it. Because each side's concern is as great as the other's, the rule gives them the same number.

The last tier of Rule 24(b) sits at the opposite end of the scale, where the charge is minor and the allotment shrinks to 3 per side. The next section takes it up.

Misdemeanor Cases

Rule 24(b)(3) is the bottom tier of the allotment: each side has 3 peremptory challenges when the defendant is charged with a crime punishable by fine, imprisonment of one year or less, or both.³² This misdemeanor allotment is defined by the same one-year line taught with the felony tier, approached from the other side. A crime punishable by imprisonment of more than one year belongs to the felony tier, and a crime punishable by one year or less belongs here.³³ Because the rule also reaches a crime punishable by fine alone, a charge that authorizes no imprisonment at all lands in this tier. The count is equal, 3 for the government and 3 for the defense, so the four-strike edge the defense holds in an ordinary felony trial is gone once the penalty drops to the one-year line or below.³⁴

The smaller number follows the smaller stakes. A crime carrying only a fine or a short term of imprisonment puts less at risk for the accused, so seating one juror a side distrusts costs less than it would in a felony trial. Every peremptory strike also lengthens selection, because another prospective juror must be questioned in place of the one removed, and in a minor case that added time is hard to justify. Three strikes balances the two concerns. The trial moves efficiently, yet each side keeps a minimum power to remove a juror it distrusts but cannot show to be disqualified for cause.

Students most often go wrong at the line itself. The phrase one year or less includes a crime punishable by exactly one year, so a one-year maximum puts the case in this tier, because the felony tier begins only above one year.³⁵ The text asks what the crime is punishable by, which means the penalty the offense carries decides the tier. The label a jurisdiction attaches to the offense does not, and neither does the sentence a judge expects to impose. Once the tier fixes each side's count, the remaining question is how the count changes when several defendants are tried together, which the next section takes up.

Multiple Defendants

Rule 24(b) gives its peremptory challenges to each side, and the defense is one side however many defendants are tried together.³⁷ The felony tier makes the consequence explicit by giving the defendant or defendants jointly 10 challenges, so three co-defendants in a felony trial share a single pool of 10 strikes rather than holding 30.³⁸ The capital and misdemeanor tiers reach the same place because they also count challenges per side. Joint use of one defense allotment is therefore the starting point in every multi-defendant trial, and it governs unless the court orders otherwise.

The exception is a matter of judicial discretion. Rule 24(b) provides that the court may allow additional peremptory challenges to multiple defendants, and may allow the defendants to exercise those challenges separately or jointly.³⁹ The text hands the court two separate levers: how many extra strikes to add, and whether the defendants spend them together or each on their own. Because the verb is "may," both choices belong to the court's discretion, and a defendant cannot claim extra or separate strikes as of right merely because several defendants sit at the defense table. The request goes to the judge, who decides it on the facts of the particular trial. The variable that moves the allotment is the court's order, and the number of defendants does not move it by itself.

The reason for the discretion lies in how co-defendants relate to one another. Defendants tried together may have defenses that diverge or even collide, and a single pool of strikes then forces them to agree on every juror, which may be unworkable when each wants a different kind of panel. Giving the court flexibility lets it match the allotment to how far the defenses actually diverge. The joint default protects the other side of the problem. Without it, every added defendant would automatically add strikes to the defense side, and the side's strength would grow with the size of the indictment instead of with the seriousness of the charge. A judge who sees real conflict can relax the default, and a judge who sees none can leave it in place.

Separate exercise also has a consequence that surfaces later in this chapter. When the court lets each defendant strike jurors independently, each defendant's strikes are that defendant's own, and under the Batson doctrine taught below one defendant may challenge peremptory strikes separately exercised by a codefendant joined with that defendant for trial.⁴⁰ The allotments for the regular jury are now complete, and the next section turns to the alternate jurors who are selected alongside it.