Definition
A peremptory challenge is the right of a party in a jury trial to reject a prospective juror without stating any reason or cause. Unlike a challenge for cause — which requires the challenging party to articulate and substantiate a specific basis for disqualification — the peremptory challenge is exercised as a matter of right, within a fixed numerical limit, and is not subject to judicial review on its merits.
Each side in a criminal or civil proceeding receives a set number of peremptory challenges, determined by statute or court rule. Once exhausted, a party must either accept the remaining panel or proceed on challenges for cause alone.
The right is not unlimited. The constitutional constraint established in Batson v. Kentucky, 476 U.S. 79 (1986), prohibits the exercise of a peremptory challenge on the basis of race. Subsequent decisions extended this prohibition to sex (J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)) and, in some jurisdictions, other protected characteristics. A Batson challenge — itself a distinct procedural mechanism — allows the opposing party to contest a peremptory strike as constitutionally impermissible.
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Common Language
Modern common usage (Wiktionary): "Peremptory" in ordinary English means admitting no contradiction or refusal; absolute; imperious. A peremptory command is one that cannot be questioned.
Historical common usage (Webster's 1913): "Precluding debate or expostulation; not admitting of question or appeal; positive; absolute; decisive."
The legal meaning fits squarely within this ordinary sense — a peremptory challenge is one the court cannot refuse or require justification for — but the word "peremptory" has largely disappeared from everyday speech. Researchers encountering the term in older sources should not read it as meaning "urgent" or "preliminary"; it means unreviewable and absolute, exercised as of right.
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Common Confusion
CHALLENGE PEREMPTORY vs. CHALLENGE FOR CAUSE: These are the two primary categories of juror challenge and are frequently conflated in general writing. A challenge for cause must be grounded in a specific, demonstrable reason (bias, relationship to a party, inability to apply the law) and is ruled on by the court, which may deny it. A peremptory challenge requires no reason and cannot be denied — except on Batson grounds. The numerical limits matter: challenges for cause are theoretically unlimited if cause exists; peremptory challenges are capped by rule.
CHALLENGE PEREMPTORY vs. BATSON CHALLENGE: A Batson challenge is not a type of peremptory challenge — it is a challenge to a peremptory challenge. Confusing the two is common in casual legal writing and leads to backward analysis.
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Why It Matters in Research
Researchers working in pre-twentieth-century sources will find the peremptory challenge discussed almost exclusively in the criminal context, and specifically in capital cases. Blackstone and early American authorities understood the peremptory challenge as a concession to the defendant — a safeguard in cases where life was at stake — not as a symmetrical right available to both prosecution and defense. This asymmetry matters when reading older treatises and opinions.
The modern constitutional overlay (Batson and its progeny) is entirely absent from historical dictionaries. Any entry in Black's, Burrill's, or Bouvier's that describes peremptory challenges as unreviewable and absolute should be read as historically accurate for its period but substantively incomplete for modern research. The Batson framework fundamentally changed what "peremptory" means in practice.
Jurisdictional variation in the number of allowed peremptory challenges is significant. Federal rules, state statutes, and court rules diverge considerably — the number differs based on whether the case is capital or non-capital, felony or misdemeanor, civil or criminal. Researchers relying on historical case law must verify the applicable rules for the jurisdiction and period in question.
For researchers tracing Batson's development, the critical arc runs from Swain v. Alabama, 380 U.S. 202 (1965) (establishing a near-impossible standard to prove systematic exclusion) through Batson itself and the subsequent expansion to civil cases (Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991)) and defense-side strikes (Georgia v. McCollum, 505 U.S. 42 (1992)). These cases collectively transformed the peremptory challenge from an absolute right into a qualified one.
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Historical Dictionary Support
Black's Law Dictionary and Burrill's Law Dictionary are in close agreement on the core definition: the peremptory challenge is a privilege allowing a criminal defendant to reject a fixed number of jurors without assigning cause. Both sources cite the same authorities — Termes de la Ley, Blackstone's Commentaries (4 Bl. Comm. 353), and Coke on Littleton (Co. Litt. 156b).
Burrill's preserves Blackstone's characterization of the peremptory challenge as "an arbitrary and capricious species of challenge," permitted in capital cases "in favorem vitae" — in favor of life. This framing is historically important: it situates the right as a mercy doctrine rather than a structural guarantee of impartial jury selection as modern doctrine frames it.
Both historical sources treat the challenge as defendant-specific in criminal cases. Neither contemplates prosecution use, civil application, or constitutional limits on discriminatory exercise — all developments that postdate these texts substantially. Researchers should treat these entries as accurate records of the common law baseline, not as statements of current law.
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Jurisdictional Note
The number of peremptory challenges varies by jurisdiction, case type, and court rule. Federal criminal trials are governed by Federal Rule of Criminal Procedure 24; capital cases receive more challenges than non-capital felonies, which receive more than misdemeanors. State allocations differ widely. Civil peremptory challenge practice is governed separately and is subject to the same Batson constraints following Edmonson.
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Encyclopedia Cross-Reference
Jury Selection — Voir Dire, Peremptory Challenges, and Batson (The Law Mind Criminal Law Encyclopedia)
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