Peremptory Challenge

In a legal context, the term peremptory refers to a decisive challenge with no opportunity given for debate, denial, or refusal. A peremptory challenge may be used by either party to a legal action in the jury-selection phase, to dismiss a potential juror without stating a reason. Other peremptory orders may be made by the court, such as setting a peremptory trial date, which cannot be changed or challenged by either party. This is unusual, but may occur if the parties have unreasonably delayed the trial on multiple occasions. To explore this concept, consider the following peremptory challenge definition.

Definition of Peremptory




  1. Decisive, final, or dictatorial
  2. A command, ruling, or decision that does not allow for questioning or debate


1505-1515       Latin    peremptōrius (final, decisive)

Use of Peremptory Challenge in the Legal System

While the term peremptory may be used to refer to a variety of rulings, orders, or decisions in the U.S. legal system, its most common use is in the jury selection process. When a jury is needed for a trial, potential jurors report to the courthouse, where they go through a selection process known as voir dire. During this process, the judge and the parties’ attorneys question each potential juror to determine whether any have a bias toward the case or the defendant.

Either attorney may dismiss any jury candidate for cause, meaning there is a definitive reason he feels the individual would not be impartial. In addition to dismissals for cause, each attorney is allowed a specific limited number of peremptory challenges, which allow them to dismiss jury candidates without stating any reason at all. The number of peremptory challenges allowed each party varies by state.

Peremptory Challenge and Juror Bias

The purpose of a jury trial is to ensure that court cases are heard, considered, and decided by an unbiased panel of the defendant’s peers. Empaneling jurors who are prejudiced about the case before it even begins would not meet this goal. The voir dire process allows the parties to weed out jurors who, for some reason, may not be able to provide an impartial opinion, or who may not be able to serve without distractions, such as a health problem, or small children left at home during a long trial.

Potential jurors may inherently be biased against certain acts or people. For instance, a retired police officer may not be able to serve impartially in a trial for a defendant accused of shooting a police officer while trying to escape a drug house. This is an obvious example, and the gentleman could be dismissed for cause. In many cases, a party simply feels that a potential juror would not be suitable, but does not want to state a reason. Such a juror can be dismissed using a peremptory challenge.

When a Peremptory Challenge Cannot be Used

The U.S. Supreme Court has ruled that no party to a legal action can remove a potential juror based on race. While no explanation or reason is given for dismissal via peremptory challenge, if a pattern of excluding jurors based on race emerges, the judge can order the dismissing party to provide reasons for dismissal, and may require voir dire of additional jury candidates in order to obtain a sufficiently diverse jury.

For example:

William has been charged with sexual assault of a young woman at a frat party on campus. William is a 19-year old white college student from an affluent family, and enjoys a position of stature among his fellow students. During the voir dire process, William’s attorney uses his peremptory challenges to dismiss all of the young women from the jury pool, leaving only one 65-year old female. In addition, he dismisses the only black candidates, leaving an all-white, mostly male jury.

The prosecutor finally objects, claiming the defense used his peremptory challenges to exclude jurors based solely on their race and sex, leaving only jurors who are likely to be biased in favor of the defendant. In such a case, the judge may, if the jury has already been chosen, order the voir dire process to begin again.

Batson v. Kentucky 476 U.S. 79 (1986)

In the 1980s, an African American man by the name of James Kirkland Baston was tried for burglary and receipt of stolen property. During voir dire, the prosecutor used peremptory challenges to dismiss all of the African Americans from the pool of prospective jurors. The jury of all white jurists subsequently convicted Baston of both charges.

Baston appealed his case, which was eventually heard by the U.S. Supreme Court (Batson v. Kentucky 476 U.S. 79 (1986)), claiming his right to be tried by an impartial jury had been violated. The Court found that the prosecutor had indeed violated Baston’s Sixth and Fourteenth Amendment rights. In the written ruling, Justice Lewis Franklin Powell, Jr. wrote that excluding jurors based on race not only violates the rights of the accused to a fair and unbiased trial, but is “devastating to the community at large,” because it “undermines public confidence in the fairness of our system of justice.”

The prosecutor in the Baston case violated the U.S. Constitution. As such, the matter was returned for a new trial. The precedent set by Baston has since been expanded to include dismissal by peremptory challenge of individuals based on sex.

Related Legal Terms and Issues

  • Jury – A group of people sworn to render a verdict in a trial, based on evidence presented.