Preemptory Challenges

When selecting a jury, attorneys for both sides ask questions of each person sent to that courtroom to be considered for service on that case. The questions asked are designed to reveal if a particular potential juror has either a conscious or unconscious bias affecting their ability to be impartial. Because these questions may be intrusive, and include such areas as reading habits, favorite television shows, amount of income, and feelings towards different racial, ethnic, or other groups, it is not uncommon for individuals required to answer such inquiries to be less than truthful or to give general answers that may conceal a biased attitude. A good trial lawyer senses bias without needing it stated explicitly.

States give each side a designated number of persons they can have excused without having to give reason. When a person is excused in this way, the attorney is said to have exercised a preemptory challenge. Because personal bias is often difficult to detect, the peremptory challenge allows lawyers to act on their instincts in order to obtain impartial juries.

Sometimes a judge will grant one side more preemptory challenges than is allowed by state law. The attorney who objects to this action and then loses his case will not be able to have the trial judge reversed by a higher court unless that lawyer has exhausted all preemptory challenges and can show to that because they were not granted the same number of preemptory challenges, one or more persons they would have found to be objectionable was able to serve on that jury.

In recent years, two decisions by the U.S. Supreme Court have placed limits on the use of preemptory challenges if the complaining side or party is able to prove that the use of preemptory challenges by the opposing lawyer were designed to exclude persons from a jury based on their race and gender. In the first of these cases, an African-American criminal defendant named Batson was convicted of burglary. On appeal to the U.S. Supreme Court, his lawyer argued the prosecution used his preemptory challenges so that no black person in the jury pool served on the jury. The Supreme Court ruled in Batson’s favor for three reasons. First, excluding jurors on the basis of race denies a defendant the right to an impartial trial since it works against the cross section of the community requirement for jury membership. Second, the excluded jurors are denied the right to take part in the judicial process. Third, this use of peremptory challenges is harmful to the local community because it encourages its citizens to believe that a fair trial cannot be obtained there.

However, the Supreme Court made clear that future defendants in seeking to have trial verdicts against them overturned on appeal to a higher court would have to prove to that court all of the following: first, the defendant is a member of an identifiable racial group. Second, the prosecution used preemptory challenges to prevent those of the defendant’s race from serving on the jury. Third, the lawyer for the defendant must show that the facts and circumstances of the case imply the prosecution did this intentionally.

Even though the defense attorney is faced with having to prove all of the above, the prosecutor must show the peremptory challenges were applied neutrally. Non-African American defendants have not been successful in challenging their convictions because U.S. Supreme Court decisions have declined to apply Batson v. Kentucky to their racial group. The principles in Batson have since been made applicable in civil as well as criminal trials.

In 1994, eight years after Batson was decided, the U.S. Supreme Court said preemptory challenges could not be used to exclude members of a particular gender from jury service. In J. E. B. v. Alabama, the state agency regulating the welfare of children filed a paternity action against J. E. B. for failing to pay the child support he owed to the mother. Alabama used its preemptory strikes to prevent nine men from serving on the jury eventually resulting in a panel consisting entirely of women. The jury found J. E. B. guilty of the charge, and he successfully argued for the application of Batson to his case on grounds that the use of preemptory challenges based on gender violated the constitutional principle that persons should not be discriminated against or treated unequally on the basis of sex.

However, it is now questionable how useful Batson and J. E. B. will be in future cases for defendants. In 1995, in Puckett v. Elam, the Supreme Court said that a prosecutor’s reason for excluding a juror on a preemptory challenge does not have to make any sense so long as it is applied neutrally as to the race and gender of the defendant. Justice John Paul Stevens in disagreeing with other justices on the Supreme Court, complained that the Court had made its decisions in Batson and J. E. B. meaningless.

Some state and federal courts lower than the U.S. Supreme Court have said preemptory challenges cannot be used to exclude persons of particular religious groups. Other courts on these levels have ruled in the opposite way. The U.S. Supreme Court has not yet resolved the difference of opinion among the courts on this issue.


Inside Preemptory Challenges