Striking Back Against Peremptory Strikes

The ability to challenge potential jurors for reasons other than possible bias has been an accepted part of jury selection since juries themselves became a part of the English legal system, some 800 years ago.1 Peremptory challenges have been part of U.S. law since the 1790 Act.2 All states allow peremptory challenges in some form.3

Yet, notwithstanding long history and wide use, could peremptory challenges be abolished? The U.S. Supreme Court has noted — in a series of opinions stretching back almost 100 years — that “[s]tates may withhold peremptory challenges ‘altogether without impairing the constitutional guarantee of an impartial jury and a fair trial.’”4 Justice Marshall, in his concurrence in Batson, advocated “eliminating peremptory challenges entirely.”5 Justice Breyer cited Marshall’s language in a recent concurrence: “I believe it is necessary to reconsider Batson’s test and the peremptory challenge system as a whole.”6 Even Great Britain, which gave us the peremptory challenge system, has now abolished such strikes.7

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