usually refers to a right in jury
selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason. Other potential jurors may be challenged for cause
, i.e. by giving a reason why they might be unable to reach a fair verdict.
The idea behind peremptory challenges is that if both parties have contributed in the configuration of the jury, they will find its verdict more acceptable. The existence of peremptory challenges are an important safeguard in the judicial process as it allows both the defendant and the prosecution to get rid of potentially biased jurors. Their use allows attorneys to use their training and experience to dismiss jurors who might say the correct thing, but might otherwise harbor prejudices that could infringe the rights of the defendant to a fair trial.
The use of peremptory challenges is controversial as some feel it has been used to undermine the balanced representation on a jury which would occur using random selection. Despite this, it still remains in use in several jurisdictions and in some cases leads to extensive and expensive jury research, aimed at producing a favorable jury. In practice, though, because both sides are permitted to eliminate an equal number of potential jurors, the result is generally not a favorable jury to one side or the other. The fact that each side is allowed to remove an equal number of jurors with potentially extreme views is an effective practical support to the principle that juries should be unbiased.
All Australian states allow for peremptory challenges in jury selection; however, the number of challenges granted to the counsels in each state are not all the same.
Peremptory challenges were first used in England
not many years after the assizes of Clarendon
of 1166 allowed jury trials. When the concept was first introduced into the jury system, the maximum number of peremptory challenges allowed was thirty-five. As time went on, this number reduced, and by the year 1509 the maximum number of peremptory challenges was twenty. By 1977, the number of peremptory challenges granted to each side was reduced from seven to three. The right of peremptory challenge was abolished altogether by The Criminal Justice Act 1988, which saw it as an erosion of the principle of random selection, and felt that its removal would “increase the fairness of the jury system”.
Each party is entitled to six peremptory challenges in New Zealand, and where there are two or more accused the prosecution is provided with a maximum of twelve.
Unlike the rest of the United Kingdom, peremptory challenge is still used in Northern Ireland. The
Juries (Northern Ireland) Order 1996 entitles each party to a maximum of six peremptory challenges in civil cases. In criminal cases, each defendant is entitled to a maximum of twelve peremptory challenges; however, the prosecution is only allowed to challenge for cause.
Another form of the peremptory challenge (or peremptory disqualification), available in some jurisdictions, is the right to remove a judge
assigned to hear the case without showing that the judge is actually biased or had a conflict of interest
. While actual determination of a judge's bias is not required to employ the peremptory challenge, the moving party must still allege bias under oath. In jurisdictions that have this form of peremptory challenge, it generally may only be used once per party per case. (see, Cal. Civ. Proc. Code §170.6)
United States of America
All jurisdictions in the United States
have some form of peremptory challenges. In the United States, the use of peremptory challenges by criminal prosecutors to remove persons from a cognizable group
(i.e., of one race, ethnicity, or gender) based on that group characteristic has been ruled to be unconstitutional
in Batson v. Kentucky
, . "Batson challenge" is a term now used to refer to the act of arguing for the invalidity of a trial on the basis that peremptory challenges during jury selection resulted in the exclusion of a cognizable group.
Batson's authority has also recently been reinforced in a pair of 2005 decisions, Miller-El v. Dretke, , and Johnson v. California, .