Striking the Peremptory Strike: Why There Is No Freestanding Constitutional Entitlement to Peremptory Challenges

Abstract

The peremptory challenge-used by parties to remove prospective jurors without the need to provide a reason-has become one of the most controversial features of the modern American jury system. Despite Batson v. Kentucky's promise to prohibit parties from using peremptory challenges to exclude jurors from serving because of their race, lawyers have learned to adjust their explanations so as not to violate the commands of Batson. States have begun to reform their systems of challenging jurors peremptorily in response. While some states have fashioned a list of presumptively invalid race-neutral justifications for exercising peremptory challenges, one state-Arizona-went the furthest by abolishing peremptory challenges altogether. This prompted Professor Richard Jolly to write an article arguing that the complete abolition of the peremptory challenge is unconstitutional. From his review of common law history, early American practice, and the text of the Sixth Amendment, Jolly concludes that peremptory challenges are implicit in the Sixth Amendment's guarantee of an "impartial jury." This Note is a direct response to Jolly's article. It examines over a century of court precedent as well as common law history, early American practice, and the text of the Sixth Amendment to determine if there is a freestanding constitutional entitlement to peremptory challenges. From my analysis, I arrive at the opposite conclusion of Jolly: The peremptory challenge is unequivocally not required by the Constitution and, as such, Arizona and any other state that decides to abolish the peremptory challenge would not be in violation of the Sixth Amendment.

Keywords: Juries, Peremptory Challenge, Peremptory Strike, Criminal Procedure