A peremptory challenge is a strike an attorney uses during jury selection to remove a prospective juror without having to give a reason. In federal court, each side gets between 3 and 20 of these strikes depending on whether the case is civil or criminal and how serious the charges are. The tool is powerful but not unlimited: Supreme Court decisions bar its use when race, ethnicity, or gender motivates the strike, and a handful of states have reformed or eliminated the practice entirely.
Peremptory Challenges Versus Challenges for Cause
There are two ways to get a prospective juror off a panel, and they work differently. A challenge for cause requires the attorney to name a specific reason the juror cannot serve fairly, such as a financial stake in the outcome, a family relationship with a party, or an admission of bias. The judge then decides whether the reason justifies removal. There is no cap on how many for-cause challenges a party can raise.
A peremptory challenge needs no explanation. The attorney simply strikes the juror. Because for-cause challenges are unlimited and peremptories are scarce, experienced trial lawyers resolve for-cause issues first. Spending a peremptory on a juror who could have been removed for cause is a waste that can hurt a party later, when they face a juror they dislike but cannot articulate a legal basis to remove.
How Many Peremptory Challenges Each Side Gets in Federal Court
Federal law sets the numbers, and they vary by case type.
Civil Cases
Under 28 U.S.C. ยง1870, each party in a federal civil trial gets three peremptory challenges.1Office of the Law Revision Counsel. 28 USC 1870 – Challenges Federal Rule of Civil Procedure 47 incorporates that statute rather than setting its own number.2Legal Information Institute. Federal Rules of Civil Procedure Rule 47 – Selecting Jurors When several plaintiffs or several defendants are in the case, the court can treat them as one party sharing three strikes, or grant additional challenges and let them be exercised jointly or separately.
Criminal Cases
Federal Rule of Criminal Procedure 24 sets a tiered schedule driven by the maximum punishment at stake:
- Capital cases: 20 peremptory challenges per side.
- Other felonies, meaning offenses punishable by more than one year: 6 for the government, 10 for the defense.
- Misdemeanors, punishable by up to one year or a fine: 3 per side.
The felony imbalance is deliberate. A conviction costs the defendant far more than an acquittal costs the government, so the defense receives nearly twice as many strikes.3Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
Alternate Jurors
When the court seats alternates, each side gets extra strikes that can only be used on prospective alternates. One extra challenge for one or two alternates, two extra for three or four, three extra for five or six.3Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors These additional strikes cannot be redirected to regular jurors.
What a Peremptory Challenge Cannot Do
Peremptory strikes were historically absolute. The Supreme Court changed that in 1986. In Batson v. Kentucky, the Court held that the Equal Protection Clause bars prosecutors from using peremptory challenges to exclude jurors because of race.4Justia US Supreme Court. Batson v. Kentucky, 476 US 79 (1986)
Over the next eight years, the Court extended that rule in three directions. Edmonson v. Leesville Concrete Co. (1991) applied Batson to civil cases, reasoning that jury service involves government action even in a private dispute.5Justia US Supreme Court. Edmonson v. Leesville Concrete Co., 500 US 614 (1991) Georgia v. McCollum (1992) held that criminal defendants are also barred from race-based strikes.6Justia US Supreme Court. Georgia v. McCollum, 505 US 42 (1992) J.E.B. v. Alabama (1994) extended the prohibition from race to gender.7United States Courts. Facts and Case Summary – J.E.B. v. Alabama A Batson challenge can now be raised by any party in any federal or state proceeding whenever a strike appears to target race, ethnicity, or gender.
Other characteristics remain unsettled. Lower courts are split on religion, with some circuits treating religious affiliation as a valid basis for a strike and others signaling it may not be. No Supreme Court decision addresses sexual orientation, though some state courts have begun prohibiting strikes on that ground.
How a Batson Challenge Works
When a party suspects a strike was discriminatory, the trial judge applies a three-step test:
- Step one: the objecting party must show that the opponent struck a juror from a cognizable group and that the circumstances raise an inference of discrimination.
- Step two: if that threshold is met, the striking attorney must offer a neutral explanation. The explanation does not have to be persuasive, only free of reliance on a protected characteristic.
- Step three: the judge weighs credibility and decides whether intentional discrimination actually drove the strike.
Step three is where most Batson disputes are decided. A judge looks at whether the stated reason also applies to jurors who were not struck, the attorney’s demeanor, and the overall pattern of strikes across the panel.4Justia US Supreme Court. Batson v. Kentucky, 476 US 79 (1986)
If the judge sustains the objection, two remedies are typical. The judge can seat the improperly struck juror, nullifying the strike, or dismiss the entire panel and begin selection again with a fresh pool. The choice depends on how far selection has progressed and whether restoring the individual juror cures the problem. On appeal, the trial judge’s finding on discriminatory intent is reviewed only for clear error, a deferential standard that reflects the trial judge’s firsthand view of the attorney’s conduct.8Legal Information Institute. Peremptory Challenges – Fourteenth Amendment
How Strikes Are Actually Exercised
Mechanics vary, but two systems dominate.
The Struck-Jury Method
The court qualifies a pool equal to the final jury size plus every peremptory challenge available to both sides. For-cause challenges are resolved first. Both attorneys then receive the list of qualified jurors and strike names simultaneously. Whoever is left makes up the jury. Jurors do not move during the process and never learn which side struck them. Because both sides commit at once, there is less tactical maneuvering.
The Strike-and-Replace Method
Also called the jury-box method, this approach seats a full jury’s worth of prospective jurors and lets the attorneys take turns striking. Each strike causes the juror to leave the box and a replacement to be called, who can then be questioned and potentially struck in turn. The sequence continues until both sides exhaust or waive their remaining challenges. The back-and-forth creates more strategic calculation, since a replacement might be worse than the juror just removed.
Under either system, the strike itself is typically communicated through a written list or ballot passed between counsel and the bench, keeping the identity of the striking party away from the rest of the panel.
State Reforms and the Move Toward Abolition
Critics have long argued that discriminatory strikes continue under Batson because attorneys can offer vague, subjective reasons that are difficult to disprove. Studies have found racial disparities in strike patterns persist even with the Batson framework in place. Some states have responded.
Arizona became the first state to eliminate peremptory challenges entirely, effective January 1, 2022, in both criminal and civil trials. Rather than police the tool, Arizona removed it.
Washington, California, Connecticut, and New Jersey have taken a different route, keeping peremptory challenges but rewriting the Batson analysis. Washington’s General Rule 37 eliminates Batson’s first step and designates certain reasons, such as distrust of law enforcement or a juror’s appearance, as presumptively invalid. The other states have adopted comparable frameworks that replace the search for purposeful discrimination with an objective-observer standard: a court must deny the strike if a reasonable, fully informed person would believe the juror’s protected status played a role, even if the attorney did not consciously intend to discriminate. That is a meaningful shift from the federal Batson inquiry, which still turns on intent.