Peremptory Challenges: The Controversial Legal Tool You've Never Heard Of
Enshrined in the Sixth Amendment is one of the central pillars of the American judicial system: the right to trial before an unbiased jury of your peers. This fundamental protection from government overreach necessitates a jury selection process and, within that, a method to remove potential jurors who would fail to live up to the Sixth Amendment’s promise of juror impartiality. The solution was twofold. First, allow both the government and the defendant to strike a potential juror with cause (a power that the judge can enact independently as well) if any side deems that said venireperson, the legal term for a potential juror, would have a bias against a particular crime, knowledge of any participating party, or disdain for law enforcement. Second, based on jurisdiction, the government and defendant are given a set number of peremptory challenges. The peremptory challenge allows either party to dismiss a juror during voir dire, the preliminary examination of potential jurors, without explanation. This has led to abundant discrimination, ensuing Supreme Court cases, and revisions to state law.
Peremptory challenges first came to prominence in 13th century England, as defendants in capital cases were allowed peremptories to counter the Crown’s almost unlimited power in juror selection. They were then adopted into the newly-created United States’ justice system in 1790. In short, peremptory challenges exist in the United States as a part of common law heritage or, as Sandra Day O’Connor put it in her concurring opinion in J.E.B. v. Alabama, as “a practice of ancient origin.” What is intriguing is that while 49 states have maintained some form of peremptory challenges in criminal and civil cases, England abolished the practice in 1988. This begs the question whether the U.S. implementation of this English common law has been more effective, or are peremptories destined for a similar fate in the United States?
The use of peremptory challenges in the United States is a controversial issue. It offers an opportunity for both sides of the judicial system to almost entirely circumvent the requirement for a rational and legal basis in the removal of a potential juror. This has led to both gender and racial discrimination in jury selection. In fact, in 1965, the Court effectively upheld the use of peremptories for racial discrimination. In this case, Swain v. Alabama, the Black defendant was convicted by an all-white jury. The government had used their peremptories to strike every Black venireperson. However, in the majority opinion, Justice Byron White writes that “we cannot hold that the striking of Negroes in a particular case is a denial of equal protection of the laws.” With this opinion, the Court placed a substantial burden of proof upon the defendant to prove discrimination, effectively giving prosecutors immunity from constitutional scrutiny regarding their use of peremptory challenges. However, this changed in 1986.
In Kentucky, a Black man named James Batson was indicted on charges of burglary and receipt of stolen goods. After the judge conducted voir dire of venire and excused jurors for cause, he allowed for peremptories. The prosecutor struck all four Black jurors, leaving an all-white jury. Although the defendant moved to discharge the jury, given that it violated the defendant’s Sixth and Fourteenth Amendment guarantee to equal protection, the request was ignored. Batson was convicted. The Supreme Court ruled that this violated the equal protection clause and developed a three-step standard for overturning unjust peremptories called the Batson challenge. The first step: the defendant must prove that they are part of a racial group and that the prosecutor exercised peremptories against that same group of venirepersons solely based on their race. The second step: the prosecutor must then provide a reason, other than race, why those excused were unfit to serve as jurors. Historically, trial courts have allowed seemingly dubious explanations such as the venirepersons’ monosyllabic responses, hair, or idiosyncrasies. The final step: the court determines if the defendant has established purposeful discrimination. Although the Batson challenge was a step in the right direction, the stringent requirements of Batson allow for continued prosecutorial misuse of peremptories. There must be reform in order to live up to the ideal of legal equality outlined in the U.S. Constitution.
Although they are flawed, peremptory challenges should not be eliminated entirely. Instead, the government should lose its privileges to strike without cause while the defendant maintains theirs. This would ensure a more equal balance of power and avoid the race- and gender-based issues that have plagued peremptory challenges for decades because defendants are substantially less likely to exercise peremptories against jurors of color. To maintain the ideals laid out in the Sixth and Fourteenth Amendments which aim to prevent governmental discrimination and abuse of power, peremptories must be allotted only to the defendant. This will allow fair and impartial juries and protect the constitutional rights granted to defendants.
Peremptory challenges have led to a litany of legal issues mainly stemming from their discriminatory use. However, the path toward reform is straightforward. Allowing the defendant to maintain peremptories while preventing the government from utilizing them enables a more equal jury selection process to take place. The government has been the primary perpetrator behind the discriminatory use of peremptories, so by removing their power and maintaining the defendant’s, this balances the scales between the two parties. Peremptories have been a notoriously controversial issue, but that doesn’t mean they have to remain that way. It is time for a change to this outdated practice, which fails to uphold the principle of equality under the law.