A peremptory strike in jury selection is a tool that lets an attorney remove a prospective juror without giving any reason. Each side gets a fixed number of these strikes, and the only firm limit on how they’re used is that a strike cannot be based on race or gender. Peremptory strikes are not a constitutional right. They exist because statutes and court rules say they do, which means legislatures and courts can change the rules or get rid of the strikes entirely.1Congress.gov. Amdt6.4.5.4 Voir Dire and Peremptory Challenges
How It Differs From a Challenge for Cause
Attorneys have two ways to remove a prospective juror, and the difference between them is the whole point of the peremptory strike. A challenge for cause requires a specific, stated reason the juror cannot be fair — a relationship with a party, an expressed bias, an inability to follow the law as the judge will instruct it.2Legal Information Institute. Challenge for Cause There is no cap on challenges for cause, but the judge decides whether each one is justified.3United States Courts. Participate in the Judicial Process – Rule of Law
A peremptory strike needs no explanation. The attorney simply removes the juror.4U.S. District Court. The Voir Dire Examination The trade-off is that peremptory strikes come in limited quantities. Trial lawyers typically spend their challenges for cause first and save peremptories for the jurors they have a bad feeling about but cannot pin to a disqualifying reason. That intuition-based removal is exactly what peremptory strikes were designed to allow.
How Many Strikes Each Side Gets
The number depends on the type of case and the court. In federal criminal cases, the counts scale with the severity of the charge:
- Capital cases: 20 strikes per side.
- Felonies punishable by more than one year: 6 for the prosecution and 10 for the defense.
- Misdemeanors: 3 per side.
Those figures come from the Federal Rules of Criminal Procedure.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors The felony asymmetry is deliberate. The defense gets more strikes because the stakes for a criminal defendant are higher than they are for the government.
In federal civil cases, each side gets 3 peremptory strikes.6Office of the Law Revision Counsel. 28 USC 1870 – Challenges When multiple plaintiffs or defendants are on one side, the court may treat them as a single party or grant extra strikes so co-parties with conflicting interests don’t have to share.
State courts set their own counts and they vary. For standard felonies, most states fall somewhere between 6 and 10 per side. Misdemeanors generally land between 3 and 10. Civil cases usually run from 3 to 8 per side.
When alternate jurors are seated, each side gets extra peremptory strikes that can only be used against prospective alternates. In federal criminal cases, that’s one extra for one or two alternates, two extras for three or four, and three extras for five or six.5Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
How Strikes Work in the Courtroom
Courts use two main methods to run jury selection, and the method changes how much an attorney knows at the moment of striking.
Under the struck jury method, the court seats a panel equal to the final jury size plus every peremptory strike available to both sides. Everyone is questioned together. Once challenges for cause are resolved, the attorneys take turns striking jurors from the remaining group. The advantage is visibility: the attorney sees the whole pool before deciding who to remove, and nobody replaces a struck juror because the panel was built with the strikes already counted in.
Under the jury box method, sometimes called strike-and-replace or sequential selection, the court fills just the jury box. Attorneys question the seated group, exercise challenges, and any removed juror is replaced from the larger pool. The replacements go through questioning, and the cycle repeats until the jury is filled or both sides have used or waived their remaining strikes. The gamble here is that the attorney striking a juror has no idea who will take that seat next.
Most attorneys prefer the struck jury method for that reason, but the court decides.
The One Thing You Cannot Do: Strike for Race or Gender
A peremptory strike needs no stated reason, but that does not mean any reason is permitted. In 1986, the Supreme Court held in Batson v. Kentucky that prosecutors cannot use peremptory strikes to remove jurors because of their race. The decision rests on the Equal Protection Clause of the Fourteenth Amendment.7Justia. Batson v. Kentucky, 476 U.S. 79 (1986)
Batson set up a three-step test that courts still use when one side suspects the other of discriminatory striking:
- The objecting party points out that the struck juror belongs to a protected group and that the pattern of strikes or other circumstances suggests discrimination. The bar is low — a plausible inference, not proof.
- The attorney who made the strike offers a reason unrelated to the protected characteristic. The reason doesn’t need to be persuasive or even sensible. It just can’t be discriminatory on its face.
- The judge weighs everything and decides whether the strike was actually motivated by discrimination. Credibility carries this step. A judge who finds the stated reason implausible can reject it.
The framework’s weakness is built into its design. It relies on the trial judge to spot pretext, and attorneys who want to discriminate can usually produce a facially neutral explanation.7Justia. Batson v. Kentucky, 476 U.S. 79 (1986)
The rule has grown in reach since 1986. In 1991, Edmonson v. Leesville Concrete Co. extended it to private parties in civil cases.8Legal Information Institute. Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) In 1992, Georgia v. McCollum applied it to criminal defense attorneys.9Legal Information Institute. Georgia v. McCollum, 505 U.S. 42 (1992) In 1994, J.E.B. v. Alabama extended it to gender.10Justia. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) And in Flowers v. Mississippi (2019), the Court confirmed that judges may consider a prosecutor’s history of striking minority jurors across prior trials when evaluating a Batson challenge.11Supreme Court of the United States. Flowers v. Mississippi, 588 U.S. 284 (2019)
What Happens if a Strike Is Found Discriminatory
If a trial judge sustains a Batson challenge, the usual remedy is to reseat the improperly struck juror, or to restart jury selection with a new pool if reseating is no longer practical. Timing matters. An attorney who suspects a discriminatory strike should object immediately, before the juror leaves the courtroom.
On appeal, the consequences are heavier. A Batson violation is treated as structural error. The appellate court does not ask whether the outcome would have been different with a fair jury. The conviction is reversed, regardless of how strong the evidence was.
Reform and Abolition
The central criticism of Batson is that it does not work well enough. Attorneys can almost always produce a facially neutral reason for any strike, and judges are reluctant to call a fellow officer of the court a liar. That gap has driven a wave of reform.
Arizona went furthest, abolishing peremptory challenges in both civil and criminal cases effective January 1, 2022. It remains the only state to have eliminated them. Others, including California, Connecticut, and New Jersey, have kept peremptory strikes but rewritten the Batson framework. These rules drop the requirement to prove intentional discrimination and instead list “presumptively invalid” reasons for strikes — a juror’s distrust of law enforcement, their dress or appearance, their employment status — treating them as likely proxies for race. The striking attorney has to overcome the presumption.
Supporters of keeping peremptory strikes argue they work as a safety valve, letting attorneys act on legitimate fairness concerns that fall short of a formal challenge for cause. The debate is unsettled, and more states are expected to act.