Duhaime's Law Dictionary


Peremptory Challenge Definition:

Also "preemptory challenge"; a party's challenge of a prospective juror for which no reason or justification need be given.

Related Terms: Challenge for Cause, Preemptory Challenge, Voir Dire, Juror, Peremptory

Also sometimes spelled and presented as:

At the selection of a jury, the judge will tell each prospective juror the names of the parties, the lawyers who will represent each party, and the nature of the legal action.

voir dire is convened on each prospective juror as they are questioned by the lawyers and the court to ensure that each can be impartial and objective about the case. Each lawyer may challenge any juror for cause - alleging some reason such as the prospective juror's occupation, opinion on certain issues or personal knowledge of the case which might be unfair for he or she to form part of the jury and asking the judge to excuse the prospective juror from service in this particular trial. 

Each party, or their attorney is allowed by law a limited number of preemptory challenges: an attorney's demand  to excuse one or more prospective jurors without having to state any reason and without the judge having any say in the matter.

In Pointer, Justice of the United States Supreme Court wrote:

"The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. He may, if he chooses, peremptorily challenge on his own dislike, without showing any cause; he may exercise that right without reason or for no reason, arbitrarily and capriciously.

"Any system for the empanelling of a jury that presents or embarrasses the full, unrestricted exercise by the accused of that right, must be condemned. And, therefore, he cannot be compelled to make a peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice."

The State of Louisiana1 presents this summary of the law:

"During the selection of a particular jury (voir dire), attorneys for either side may wish to suggest to the court that certain individuals be excused from service for this particular jury.   There are two types of challenges:

  1. challenge for cause is made when an attorney believes that an individual being challenged is in some way not appropriate for a particular case.  For example, a person who was recently a party to a personal injury suit or who is a relative of the attorneys or parties in the present suit, may find it difficult or impossible to be completely objective.  The decision as to the validity of a challenge for cause is made by the judge.
  2. The law allows each side in a case a limited number of preemptory challenges which it may exercise if it so chooses.  The judge automatically grants preemptory challenges."

In 2001, in the case of R v Gayle, Justice Sharpe of the Court of Appeal of Ontario wrote:

"An important part of the jury selection process is the right of both the Crown and the defence to exercise peremptory challenges. The very essence of a peremptory challenge is that its exercise requires no justification or explanation. Peremptory challenges ordinarily may be exercised on grounds that are not provable and unable to withstand objective scrutiny.

"No doubt the right of peremptory challenge is often exercised in an effort to secure what the party hopes will be a sympathetic jury. The justification for allowing peremptory challenges is that they foster confidence in the jury trial process. An accused may have a hunch about a prospective juror that cannot be proved. A lingering doubt about the juror's partiality would taint the perception of a fair trial....

"By offering each side a limited number of peremptory challenges, the law allows the parties to eliminate unproveable but perceived concerns about the propensities of jurors and thereby enhance confidence in the impartiality of the jury and the fairness of the trial."

Edward Coke wrote (at 3 Institutes 27, c. 2):

"The end of challenge is to have an indifferent trial, and which is required by law; and to bar the party indicted of his lawful challenge is to bar him of a principal matter concerning his trial."

William Blackstone added, at 4 Commentaries on the Laws of England, p. 1738:

"As every one must be sensible what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another, and how necessary it is that a prisoner (when put to defend his life), should have a good opinion of his jury, the want of which might totally disconcert him, the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike."

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