The Use of the Peremptory Challenge in the U.S. Legal System

The Use of the Peremptory Challenge in the U.S. Legal System

Over 80 million Americans alive today have been called to jury duty at some point in their lives (Henley 5). Out of these 80 million individuals, roughly 30% (or 24 million) have been eliminated from the jury selection process due to the use of peremptory challenges (5). According to Black’s Law Dictionary, a peremptory challenge is a challenge that “need not be supported by any reason.” Although these challenges are commonplace in today’s courts, several Supreme Court cases have questioned the constitutionality of their place in the legal system. This paper will explore the history of peremptory challenges, theories behind them, a few pertinent cases, and reform progress.

The History of Peremptory Challenges

What many American do not realize is that the concept of peremptory challenges has been around since the Roman era, but controversy over the topic in America did not come about until the twentieth century (Henley 1). Under Roman law, each litigant was allowed to select 100 jurors and then strike as many as 50 people from the jury pool (1). English Common law allowed the defendant 35 peremptory challenges, while the prosecution had an unlimited amount (1). This system was alive in England until 1305 when Parliament outlawed the prosecution’s right to peremptory challenges (1). It took over 600 years for Parliament to do the same with the rights to challenges for defendants in 1988 (1). The American legal system, being based on British common law, has always allowed for the use of peremptory challenges. One reasoning behind this fact is the American tradition of challenges (6). To be exact, the reason we continue to use peremptory challenges ...

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