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What Is a Peremptory Challenge?

A peremptory challenge may be used to dismiss a possible juror who demonstrates a bias concerning the issues that will be discussed over the course of the trial.
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  • Written By: Ken Black
  • Edited By: Andrew Jones
  • Last Modified Date: 15 August 2014
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A peremptory challenge is one that attorneys use to dismiss a potential juror who may not be sympathetic to the point of one side or the other. The strategy is widely practiced in the United States, along with striking jurors for cause. The United States is not the only country to have these types of challenges, but some other countries, such as England, have abolished them because they are seen as being discriminatory.

The United States has prohibited the peremptory challenge from being used to exclude a juror solely on the basis of race ever since the Supreme Court ruled in Batson v. Kentucky in 1986. Despite this prohibition, such a situation may be very difficult to prove, according to many legal experts. Still, use of a peremptory challenge based on ethnicity or gender could be grounds for an appeal, if the case were a civil one.

The main arguments in favor of using the peremptory challenge is to eliminate juror bias. In other words, if a juror may use race or gender as a basis for finding in favor of one side and against the other, then that juror should likely be eliminated even if they don't express that point of view directly. This helps in finding an impartial jury that will objectively consider the facts of the case.

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On the other hand, the peremptory challenge is seen as a way to infuse such biases in the jury as well. If an attorney can determine which individuals are likely to be more favorable to a side because of those same issues, then peremptory challenges could be used to remove the others who may not help the case. In such cases, it is up the opposing counsel, if possible, to help balance the jury so that neither side has a built-in advantage.

Given the fact that using a peremptory challenge could be considered a discriminatory practice, some have suggested it be removed from law in the United States. If that were to happen, the only tool to remove a potential juror would be a challenge for cause, in which a valid legal reason must be given to dismiss the individual. England abolished peremptory challenges during the 1980s and some have felt there has been no injustice created by the removal of the challenges.

The number of peremptory challenges available to an attorney is generally limited, so they must be used judiciously. Challenges for cause are unlimited, but the burden of proof is on the attorney to prove a legal cause. In most cases, if the attorney does not feel there will be a problem finding a qualified jury, he or she may use a peremptory challenge just to shorten the process.

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