Peremptory Challenges

Peremptory Challenges Peremptory challenges are one of the most intriguing remaining bastions of “hunch stereotyping” remaining in the legal system. During voir dire, each attorney can dismiss a set number of jurors for almost any reason without having to show cause. Such jurors are then dismissed from service and sent home. Until 1986, peremptory challenges required no explanation and could be used for any reason in a particular case, and but for a very limited exception (a pattern of discrimination across a number of cases, and the burden of proof on the defense to establish this discrimation—see, Swain v. Alabama, 1965) attorneys were free to use their peremptories as they wished. Since 1986, however, two variables, and only these two, are forbidden fruits for justifying a peremptory challenge. In the landmark case Batson v. Kentucky (1986), the Supreme Court ruled that race could no longer be used by the prosecutor or the state as the reason for a peremptory challenge. Unlike Swain, a pattern of discrimination across a number of cases no longer had to be shown, and the burden of proof was now on the side exercising the peremptory challenges, and not on the side questioning the challenging of minorities. In subsequent cases, the Court extended the prohibition against using race in peremptory challenges to attorneys in civil cases (Edmonson v. Leesville Concrete Co., 1991), and to defense attorneys in criminal cases (Georgia v. McCollum, 1992). Finally, in 1994, the Court reached a similar conclusion about the unconstitutionality of using gender to peremptorarily challenge a juror (J.E.B. v. Alabama ex rel. T.B., 1994).

Given the limitations that the Court has put on the use of peremptories, one wonders if they should still be allowed in the courts, or should they simply be abolished? Justice Thurgood Marshall argued for abolition in his concurrence in Batson, stating that “the inherent potential of peremptory challenges to distort the jury process by permitting the exclusion of jurors on racial grounds should ideally lead the court to ban them entirely from the criminal justice system” (p. 107). The Rehnquist Court, however, seems to be moving in just the opposite direction. Justice Antonin Scalia has tried to push the court to roll back the limits on peremptory challenges. He has argued on several occasions that the Constitution does not bar lawyers from eliminating jurors on any basis and that such limits are an obstacle to justice. The rest of the Court seems to be moving closer to Scalia's views. In a per curiam 7‐to‐2 decision, the Court overturned an Eighth Circuit Court ruling and agreed that the Missouri Supreme Court was correct in upholding a prosecutor's explanation for dismissing a juror because he had long hair (Purkett v. Elem, 1995).

The future of the peremptory challenge is unclear. Though the peremptory challenge was always viewed somewhat ambivalently, until Batson it was largely unfettered by legal constraints. Will the Court reverse its decisions limiting the use of the peremptory challenge or simply decide that such matters are not worth the Court's time? Given the direction the Court has taken, the latter seems to be the more likely outcome. What is clear, though, is that the current situation is not a “stable one” and that Batson opened the floodgates for further examination of the nature of challenges in jury selection.

Milton Heumann