It has become more commonplace to hear talk about a future of litigation without peremptory strikes. After all, Arizona in 2022 was the first state to eliminate strikes in all cases, and it may not be the last. California and Washington have moved to revised schemes for exercising strikes, relying not on the potentially pretextual reasons litigants might offer for a Batson-challenged strike but instead on the “objective observer test” of whether a neutral person with a knowledge of unconscious bias would see the strikes as discriminatory. Recently at a conference, I heard one judge from Washington state casually mention that he expected that at some point in the near future, his state would eliminate peremptory challenges as well. These moves against the peremptory challenge have been driven by broadly perceived difficulties in enforcing the nondiscrimination limits imposed by the 14th Amendment, seeking to prevent a tool for fair trial from being used as an avenue for discrimination. The writing may be on the wall that the peremptory challenge is dying, but I’d urge lawyers, as Dylan Thomas wrote, to “not go gentle into that good night,” but instead to rage at least a bit against the trend in sharply limiting or eliminating the strikes.

A recent article by Southwestern Law School Professor Richard Jolly (Jolly, 2024) makes the somewhat novel argument that peremptory challenges are not a mere procedural feature of trials that may be trimmed or cut by judges or legislatures, but are instead part and parcel of the Sixth and Seventh Amendment’s guarantees of a right to a fair trial. His argument is that a historic understanding of these rights suggests that litigants are expected to have a meaningful role in selecting the composition of their juries, and that most obviously in capital cases, strongly implied in all criminal cases, and less strongly but still arguably in civil cases as well, “trial by jury” historically means a trial with peremptory strikes. The professor concludes, “Peremptory challenges are not merely one procedure among many that may be used to arrive at a fair tribunal, but instead a necessary component for realizing the impartiality that lies at the heart of the jury trial right.” The article provides a template not only for challenging the Constitutionality of the Arizona restrictions, but also a basis for arguing more practically for improved jury selection procedures at the trial level.

An Impartial Jury: The Historic Argument for Peremptory Challenges as Part of the Constitutional Right to a Jury Trial

In a detailed 60-page article, Professor Jolly traces the common law roots of the peremptory challenge and notes that among the many Supreme Court cases touching on peremptory challenges, none have squarely addressed the Constitutional question of whether they are required for a fair trial under the Sixth and Seventh Amendments. The historic argument may now be particularly important given the fact that the Court’s majority, perhaps aside from its recent Trump v. U.S. decision on Presidential Immunity, seems to be increasingly adopting an “originalist” philosophy that prioritizes the thinking of the framers.

Amid the discussion of how to police discrimination in jury selection, abolition of the peremptory challenge is often seen as a clean and simple fix, but Jolly’s argument is that it risks a bedrock protection “whose beginnings stretch back over 700 years of common law.” While not explicit in Constitutional text, it was clearly implied by the then-current understanding of “trial by jury” and the concept of an “impartial jury” being one in which both sides, but particularly a criminal or capital defendant, played a role in selecting the jury. Among many historic notes Jolly shares, one apparent slam-dunk comes from the ratification debates over the bill of rights: When George Mason noted his displeasure at the lack of a provision for peremptory challenges to the jury, James Madison — the man who wrote the Sixth Amendment — answered, “The right of challenging [the jury composition through peremptory strikes] is incident to the trial by jury, and therefore, as the one is secured, so is the other.” In other words, in historical context, a “jury trial” means “a trial that includes peremptory strikes.”

The argument is most clear in capital cases, and less clear as applied to civil trials via the Seventh Amendment. Jolly, however, argues that the widespread practice of the struck jury selection process during and before the framers’ time — both sides in effect exercising sequential strikes in order to arrive at a mutually accepted panel — provides a strong historic case to indicate that participation in selecting juries is part of the guarantee of a civil jury trial under the Seventh Amendment.

A Better Process: Solutions for Non-Discriminatory Applications of the Peremptory Challenge

Jolly’s focus is on the Constitutional roots of the peremptory challenge rather than on its more modern challenges. He notes that, based on the research, strikes are not necessarily exercised in ways that practically reduce bias, and are too often exercised in discriminatory ways. “To summarize,” he notes, “peremptory challenges are bad at what they purport to do well [reducing bias], and good at what they are prohibited from doing [discriminating].”

In response, he considers a number of options for preserving the peremptory challenge while addressing the current problems with its use. His primary message is that regulations should be driven by the consideration that legislators aren’t just dealing with a convenience of court protocol but with a critical part of the Constitutional right to a fair trial.

One good idea Jolly considers is to limit the restrictions on the peremptory to the party that the Constitution was most concerned with limiting, and the party that has also been most egregious in using strikes for discriminatory purposes: the state prosecutors. In other words, let defendants strike peremptorily but require prosecutors to rely on cause challenges. More perversely, he argues for limiting attorney-led voir dire as a fix to improper strikes because litigants use the time in oral questioning to “ask leading questions and collect easy fodder for pretextual justifications in exercising strikes.” Substantive voir dire is more likely the solution rather than the problem. If you ask any seasoned litigator, or especially litigation consultants (like me) who assist in jury selection, they would strongly prefer to base their strikes on actual grounds — expressed attitudes and experiences —  rather than stereotypes. Where strikes are guided consciously or unconsciously by stereotypes it is often because litigants are not given the opportunity to ground them in anything else.

One final idea that I would add to Jolly’s discussion is that in courtrooms where peremptory challenges are restricted or eliminated, California and Washington’s notion of the “objective observer” ought to be applied to cause challenges as well.  In other words, given the implausibility of potential jurors being able to self-diagnose and effectively regulate their own biases, an implausibility overwhelmingly demonstrated in social science, the question ought not be whether a potential juror will admit that they “could not be fair,” or “could not ‘set aside’ their bias,” the question should be whether an objective observer with an understanding of the psychology of bias would expect that an individual with these expressed attitudes and experiences would be biased.

As the peremptory challenge is either rehabilitated or sentenced to death, we may face extended arguments like these. Jolly’s point is that these arguments should be historically informed and should see the peremptory challenge in the context of its critical role in giving life to the guarantee of a jury trial rather than reducing the peremptory challenge to a matter of mere courtroom logistics.

Jolly, R. L. (2024). The Constitutional Right to Peremptory Challenges in Jury Selection. Vanderbilt Law Review, 77.
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