Peremptory Challenge: Definition & Law

Instructor: Brittany McKenna

Brittany is a licensed attorney who specializes in criminal law, legal writing, and appellate practice and procedure.

A peremptory challenge is used by attorneys in the jury selection process to excuse potential jurors without providing a reason why. In this lesson you will learn about the use of peremptory strikes, as well as the laws designed to protect the integrity of the process.


While the process of selecting jurors may be too boring to be featured in popular T.V. crime dramas, any seasoned trial attorney will tell you that a trial can be lost or won in jury selection. So, what exactly makes the process so important? And how do attorneys pick the 'best' jury for each case?

The jury selection process, also know as 'voir dire', involves attorneys from each side taking turns picking the jurors they believe will favor their position over their opponent's. The term peremptory challenge refers to the practice of excusing potential jurors without providing a reason why. Jurors may also be excluded because the attorneys and the judge believe that the juror, for whatever reason, can't be fair. This is called a 'for cause' challenge.

The number of peremptory challenges given to each side depends on the jurisdiction and the type of case. The rationale behind allowing peremptory challenges is to give the attorneys an opportunity to seat the best jury for each case. Since each side will reject the jurors that they presume will favor the other side, the result should be a well-balanced jury.

The process of jury selection is not unlike a conversation between the attorneys and the potential jurors, with the attorneys asking questions and the jurors answering them. The questions asked during voir dire are designed to uncover each potential juror's competency, background, and hidden biases. The attorneys will decide which jurors they wish to challenge, or 'strike' (remove from the pool of potential jurors), based on the answers given during the selection process.

Consider the classic 'slip and fall' case. The attorney for the plaintiff (the injured party) will want jurors who are sympathetic to his arguments. The attorney for the defense, on the other hand, will want jurors who will be unwilling to find in favor of the injured plaintiff. Imagine that sitting in the jury pool is a grandmother who's fallen at the grocery store. She knows how difficult it is to recover from a broken bone--from the weeks of missed work and hospital bills to the physical therapy. For the defense attorney, this juror appears far more likely side with the plaintiff. A peremptory challenge would be used by the defense to excuse the grandmother from the jury.

Laws & Examples

The purpose of the jury selection process is to seat a fair, unbiased jury. In the context of criminal trials, a jury must represent a fair cross-section of the defendant's community. When peremptory challenges are used to side-step this fair cross-section requirement, the defendant's right to a fair trial is just as quickly destroyed.

Consider the United States Supreme Court's landmark Batson v. Kentucky decision. The African American defendant, James Batson, was charged with burglary and receiving stolen goods. During jury selection, the prosecution used its peremptory challenges to remove all African Americans from the jury. Batson was ultimately convicted by an all white jury.

Batson appealed his conviction to the Supreme Court and won. The Supreme Court ruled that using peremptory challenges to exclude potential jurors based solely on their race constituted a violation of the defendant's Sixth and Fourteenth Amendment rights. Now, if a defendant suspects that the prosecution has used its peremptory challenges for the explicit purpose of eliminating potential jurors based on their race, the defendant can make an objection to the discriminatory composition of the jury. This objection is known as a Batson challenge. To overcome a Batson challenge, the prosecution must offer a neutral explanation for excusing the jurors. If the prosecution can't provide such an explanation, the defendant may get a new trial.

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