A peremptory challenge lets an attorney remove a prospective juror during jury selection without giving any reason. Each side gets a fixed number of these strikes, ranging from about 3 to 20 depending on the type of case and the court, and the discretion is broad but not unlimited: the Supreme Court has held that peremptory challenges cannot be used to remove jurors because of race, ethnicity, or gender.
Peremptory Challenges vs. Challenges for Cause
Jury selection uses two different tools for removing prospective jurors, and they work on opposite logic.
A challenge for cause requires the lawyer to convince the judge that a particular juror cannot be fair. Courts recognize this kind of bias when a juror openly says they cannot be impartial or gives answers that cast serious doubt on their ability to weigh the evidence neutrally. The judge decides. There’s no fixed cap on for-cause challenges, but each one needs a concrete justification and judicial approval.
A peremptory challenge works the other way. The attorney doesn’t have to explain the removal, and the judge doesn’t have to approve it. A lawyer might strike a juror based on body language, an evasive answer during questioning, or a professional background that suggests an unfavorable perspective. The reasoning behind this flexibility is that the cause-challenge process catches only the most obvious forms of bias. Jurors who seem uncomfortable, distracted, or subtly hostile to one side rarely meet the high bar for a cause-based removal, yet they can still shape a verdict. Peremptory strikes fill that gap.
One thing to know up front: peremptory challenges are not a constitutional right. The Supreme Court has repeatedly described them as a statutory privilege that Congress could eliminate entirely without violating the Sixth Amendment’s guarantee of an impartial jury.1Legal Information Institute. United States v. Martinez-Salazar That matters because it means legislatures and courts can reduce, reform, or abolish them without running into constitutional obstacles.
How Many Peremptory Strikes Each Side Gets
The number available depends on the type of case and the court system.
Federal Criminal Cases
Federal Rule of Criminal Procedure 24 sorts criminal cases into three tiers:
- Capital cases, where the government seeks the death penalty: 20 peremptory challenges per side.
- Other felonies, meaning crimes punishable by more than one year of imprisonment: 6 strikes for the government and 10 for the defendant, or defendants jointly.
- Misdemeanors, meaning crimes punishable by a year or less: 3 strikes per side.
The asymmetry in felony cases reflects the higher stakes for someone facing prison. The defendant has more to lose, so the rules give more room to shape the jury.2Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
Federal Civil Cases
Each party in a federal civil case receives three peremptory challenges. When a lawsuit involves multiple plaintiffs or multiple defendants, the court can treat them as a single party sharing those three strikes, or it can grant additional challenges and let co-parties exercise them separately or together. The decision usually turns on whether co-parties have genuinely conflicting interests that would make shared strikes impractical.3Office of the Law Revision Counsel. 28 USC 1870 – Challenges
State Courts
State courts set their own numbers, and the ranges vary. In non-capital felony cases, state allocations run from about 3 to 20 strikes per side. State civil cases typically fall in the 3 to 6 range. Most states use a tiered system similar to the federal model, giving more challenges as the potential punishment increases.
Extra Strikes for Alternate Jurors
When a court seats alternate jurors who can step in if a regular juror becomes unavailable, both sides receive additional peremptory challenges reserved for those alternates. In federal criminal cases, each side gets one extra challenge when one or two alternates are seated, two extras for three or four alternates, and three extras for five or six alternates. These bonus strikes can only be used against prospective alternates, not against the regular panel.4Justia. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
The Constitutional Limit: What Batson Prohibits
An attorney doesn’t have to give a reason for a peremptory strike, but some reasons are off-limits.
In 1986, the Supreme Court held in Batson v. Kentucky that using peremptory challenges to exclude jurors based on race violates the Equal Protection Clause of the Fourteenth Amendment. A defendant could challenge a strike’s racial motivation within a single trial rather than having to prove a pattern across many cases, which was the far higher standard under the earlier rule.5Legal Information Institute. Batson v. Kentucky, 476 US 79
The Court later extended Batson beyond race. In J.E.B. v. Alabama (1994), the Court held that gender-based peremptory strikes are equally unconstitutional, reasoning that gender is an impermissible proxy for juror competence and impartiality.6Justia US Supreme Court. J. E. B. v. Alabama ex rel. T. B., 511 US 127 Subsequent cases confirmed that ethnicity-based strikes are also barred. Federal courts remain divided on whether Batson applies to strikes based on sexual orientation, religion, or other characteristics.7Congress.gov. Batson v. Kentucky and Federal Peremptory Challenge Law
The most significant recent Batson case is Flowers v. Mississippi (2019), where the Supreme Court found clear error in a trial court’s refusal to sustain a Batson challenge. Over six separate trials of the same defendant, the prosecution had attempted to strike all 36 Black prospective jurors. The Court weighed four types of evidence: the historical pattern of strikes across trials, the pattern within the trial at issue, stark disparities in how thoroughly prosecutors questioned Black versus white jurors, and side-by-side comparisons showing that Black jurors were struck for characteristics shared by seated white jurors. Flowers established that reviewing courts should evaluate the full picture rather than accepting each strike justification in isolation.8Supreme Court of the United States. Flowers v. Mississippi, No. 17-9572
How a Batson Challenge Works
When an attorney believes the other side struck a juror for a discriminatory reason, they can raise a Batson challenge. The objection has to come before the challenged juror is excused. Waiting until later in the trial, or raising it for the first time on appeal, risks waiver. The challenge triggers a three-step process that plays out in front of the judge, outside the hearing of the jury panel.
Step one puts the burden on the objecting party to present enough facts to create an inference of discrimination. Proof isn’t required at this stage. The objecting party might point to a pattern of strikes against jurors of a particular race or gender, or note that the struck juror shares characteristics with jurors from a different group who were not struck. The bar is intentionally low; the point is to flag the issue so the court can look further.
Step two shifts the burden. If the judge finds the initial showing sufficient, the attorney who made the strike has to offer a reason unrelated to the juror’s race, gender, or ethnicity. The reason does not have to be persuasive or even particularly good. It just has to be facially neutral. “The juror seemed inattentive” or “the juror works in an industry sympathetic to the other side” will qualify. A reason that explicitly or implicitly references a protected characteristic will not.5Legal Information Institute. Batson v. Kentucky, 476 US 79
Step three is where Batson challenges are won or lost. The judge decides whether the neutral reason is genuine or a pretext for discrimination. This is the most subjective part of the process. Judges weigh whether the stated reason applies equally to jurors who were not struck, whether the attorney’s explanation makes sense in context, and whether it holds up against comparative analysis. If the judge concludes the reason is pretextual, the strike is denied.
What Happens When a Batson Violation Is Found
Courts have several options when they sustain a Batson challenge. Before trial begins, the most common remedy is to reject the peremptory strike and return the juror to the qualified pool. Alternatively, the court may dismiss the entire panel and start jury selection from scratch with a new group of prospective jurors. The choice often depends on how many strikes were tainted and whether the court believes a fair jury can still be assembled from what remains.7Congress.gov. Batson v. Kentucky and Federal Peremptory Challenge Law
When a Batson violation surfaces after a conviction, the consequences are more severe. At least two federal circuits treat Batson violations as structural errors, meaning they require automatic reversal and a new trial regardless of whether the discrimination affected the outcome. The reasoning is that a jury selected through discrimination is fundamentally illegitimate and cannot be cured by after-the-fact analysis.
What Batson does not do is directly sanction the attorney who made the discriminatory strike. The remedy is procedural, not punitive, which critics have long said creates a weak deterrent.
Where the Rules Are Changing
Batson was meant to end discriminatory jury selection, but decades of research and litigation suggest it hasn’t lived up to that promise. The framework’s weak point is step two: the neutral-reason requirement is easy to satisfy. An attorney can strike a juror for living in a particular neighborhood, holding a certain job, or seeming unengaged, and those reasons are hard to disprove even when they correlate with race or gender. Studies consistently show that Black, Hispanic, and Native American jurors continue to be struck at disproportionate rates.
Several jurisdictions have responded with reforms that go beyond the Batson framework. The most common approach replaces Batson’s requirement of proving purposeful discrimination with an “objective observer” standard. Under this model, the court asks whether a reasonable person who understands that unconscious bias exists would view race or ethnicity as a factor in the strike. The court does not need to find intentional discrimination to deny the challenge. Washington was the first state to adopt this approach in 2018, and California, Connecticut, and New Jersey have since enacted similar rules.9Washington Courts. General Rule 37 – Jury Selection10California Legislative Information. California Code of Civil Procedure Section 231.7 Colorado adopted a related reform effective January 2, 2026, requiring courts to evaluate whether peremptory challenges are rooted in improper bias, including unconscious or implicit bias, when the struck juror is a member of a racial or ethnic minority group.11Colorado Judicial Branch. Rule Change 2025(15) – Rule 24 Trial Jurors
Arizona went further. In 2022, it became the first state to abolish peremptory challenges entirely in both criminal and civil cases. The state’s supreme court reasoned that peremptory strikes are not constitutionally required, that they interfere with the goal of drawing juries from a representative cross-section of the community, and that studies showed the strikes were being exercised in discriminatory patterns against Black, Native American, and Hispanic jurors.
Whether the broader trend moves toward abolition or toward tightened standards like the objective-observer model is an open question. What’s clear is that the legal ground around peremptory challenges is shifting faster now than at any point since Batson itself. Lawyers who rely heavily on these strikes in jurisdictions that have adopted or are considering reforms should watch local rule changes closely, because the latitude that existed five years ago may not exist today.