First Page
1529
Abstract
The peremptory challenge is one of the oldest and most well-established jury selection procedures. Its use dates back to the earliest days of English common law, and it was a firmly established and protected practice at the United States’ founding and into the early twentieth century. But while peremptory challenges are foundational, they remain perhaps the most controversial aspect of jury selection today. This is because they are regularly used by the government and private parties to advance racist, sexist, and bigoted ends. For this reason, over the last three decades, calls to abolish the practice have been regularly made by U.S. Supreme Court Justices and law students alike. And in 2022, Arizona became the first state in U.S. history to take that dramatic step—eliminating peremptory challenges in all cases.
This Article is the first to demonstrate that abolition of peremptory challenges is unconstitutional. Despite some contrary Supreme Court precedent, it contends that the early history, practice, and texts show that the Sixth Amendment secures to criminal defendants, particularly in capital cases, the right to participate in jury selection through peremptory challenges. Whether the Seventh Amendment secures an analogous right to civil litigants is less clear, though there is a strong argument that it should be so read. Crucially, constitutionalizing the right does not mean that peremptories may escape all regulation. The Fourteenth Amendment imposes limitations, and legislatures may make further appropriate restrictions. The Article concludes by reviewing paths for balancing the right to peremptory challenges with the need to eradicate systemic bias from jury selection.
Recommended Citation
Richard Lorren Jolly,
The Constitutional Right to Peremptory Challenges in Jury Selection,
77 Vanderbilt Law Review
1529
(2024)
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol77/iss5/3