Batson v. Kentucky and Federal Peremptory Challenge Law

September 30, 2022 R47259

Batson v. Kentucky and Federal Peremptory
September 30, 2022
Challenge Law
Peter G. Berris
Parties in federal court—whether in civil or criminal trials—have two options to challenge
Legislative Attorney
potential jurors during jury selection: challenges for cause and peremptory challenges. Both types

of challenges may be made during a process called voir dire, where the parties select a jury from
the prospective jurors summoned by examining them for suitability. If voir dire reveals that a

prospective juror is partial, biased, incompetent, or unqualified, then that prospective juror may
be challenged for cause and removed, subject to court approval. Otherwise, a party must rely on peremptory challenges to
remove a potential juror, which are challenges not based on cause and largely subject to the discretion of the party exercising
them.
Parties using peremptory challenges face procedural and substantive hurdles. Procedurally, for federal civil trials, peremptory
challenges are limited in number by statute and the Federal Rules of Civil Procedure; for federal criminal trials, the Federal
Rules of Criminal Procedure govern peremptory challenges. Substantively, parties exercising peremptory challenges are
limited by a line of Supreme Court precedent, starting with Batson v. Kentucky, which precludes the use of certain types of
discriminatory peremptory challenges.
Modifying the peremptory challenge process would inherently involve rebalancing conflicting rights. On the one hand,
Batson and its progeny clarified that parties and prospective jurors have a constitutional right to be free from peremptory
challenges that discriminate based on race, ethnicity, or gender. On the other hand, the very discretion that makes peremptory
challenges potential vehicles for discriminatory use also makes them valuable in excusing jurors who are unsuitable even if
not to the degree of a challenge for cause. In that sense, the Supreme Court has described peremptory challenges as an
important right of the accused, an “auxiliary” tool that helps to secure the right to an impartial jury guaranteed by the Sixth
Amendment and the Due Process Clause of the Fourteenth Amendment.
The Constitution does not guarantee a right to peremptory challenges, however, and the merits and drawbacks of peremptory
challenges have long been a subject of debate. Some jurists and observers have questioned whether Batson goes far enough in
prohibiting discriminatory peremptory challenges. Several states have either eliminated or restricted the use of peremptory
challenges in their respective jurisdictions, and others are exploring such options. At the federal level, a high-profile effort to
modify peremptory challenges in the 1970s was ultimately unsuccessful, and subsequent legislation to modify peremptory
challenges has been scarce.
This report provides legal background on peremptory challenges at the federal level, with particular emphasis on how Batson
and its progeny have limited such challenges. The report discusses the three-step Batson framework for evaluating whether a
peremptory challenge is discriminatory and then examines the classifications Batson protects. The report concludes with an
overview of selected legislative efforts to change peremptory challenges and related congressional considerations.

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arties in federal court—whether in civil or criminal trials—have a powerful tool to strike
potential jurors during jury selection: peremptory challenges. Peremptory challenges may
P be brought during voir dire, a process where the judge and the parties select a jury by
examining the prospective jurors summoned.1 If voir dire reveals that a prospective juror is partial
or biased,2 lacks sufficient qualifications,3 or is otherwise incompetent,4 that potential juror may
be struck for cause and excused from serving on the jury.5 A trial court may excuse a juror for
cause on its own initiative or in response to a challenge for cause from one of the parties.6
Challenges for cause are unlimited in number but require a judge to agree “that one of the bases
for such a challenge is present.”7 If a party wishes to strike a potential juror whom he believes
will be particularly hostile to his position but who nevertheless falls outside of the scope of a
challenge for cause,8 the party may raise a peremptory challenge—a second option for
challenging potential jurors.9
At the federal level, statute and the rules of criminal and civil procedure set the number of
peremptory challenges available,10 and parties have considerable discretion in determining
whether to exercise a peremptory challenge against a potential juror.11 Traditionally, peremptory
challenges could “be used to remove any potential juror for any reason—no questions asked.”12

1 Voir Dire, BLACK’S LAW DICTIONARY (11th ed. 2019). Voir dire serves two purposes: “enabling the court to select an
impartial jury and assisting counsel in exercising peremptory challenges”. Mu’Min v. Virginia, 500 U.S. 415, 431
(1991). The exact voir dire procedures employed to attain those goals may vary. See Morgan v. Illinois, 504 U.S. 719,
729 (1992) (“The Constitution, after all, does not dictate a catechism for voir dire.... ”); accord Skilling v. United
States, 561 U.S. 358, 386 (2010) (“Jury selection, we have repeatedly emphasized, is ‘particularly within the province
of the trial judge.’” (quoting Ristaino v. Ross, 424 U.S. 589, 594-595 (1976)).
2 See, e.g., Adams v. Texas, 448 U.S. 38, 45 (1980) (explaining, in the context of death penalty objectors, that a juror
may be challenged for cause if his “views would prevent or substantially impair the performance of his duties as a juror
in accordance with his instructions and his oath”); United States v. Nelson, 277 F.3d 164, 202 (2d Cir. 2002)
(concluding that the trial court abused its discretion in rejecting for-cause challenge of juror who “sufficiently revealed
actual bias in his answers during voir dire to require his exclusion from the jury”); Wolfe v. Brigano, 232 F.3d 499,
502-3 (6th Cir. 2000) (similar).
3 A federal statute specifies that an individual is unqualified to serve as federal jurors if he: lacks United States
citizenship; is under the age of eighteen; has not resided for one year in the judicial district; is “unable to read, write,
and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror
qualification form”; is “unable to speak the English language”; is “incapable, by reason of mental or physical infirmity,
to render satisfactory jury service”; or has “a charge pending against him for the commission of, or has been convicted
in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights
have not been restored.” 28 U.S.C. § 1865.
4 See, e.g., United States v. Hall, 989 F.2d 711, 714 (4th Cir. 1993) (“A defendant is constitutionally entitled to
mentally competent jurors.”).
5 See generally WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 22.3(c) (4th ed. 2021).
6 United States v. Torres, 128 F.3d 38, 43 (2d Cir. 1997).
7 See LAFAVE ET AL., supra note 5, § 22.3(c).
8 Swain v. Alabama, 380 U.S. 202, 220 (1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986) (“While
challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of
partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or
demonstrable.”).
9 Id.; see also LAFAVE ET AL., supra note 5, § 22.3(d) (explaining that the peremptory challenge “serves functions that
the challenge for cause could never fill” (quoting Barbara Allen Babcock, Voir Dire: Preserving “Its Wonderful
Power”, 27 STAN. L. REV. 545, 552 (1975))).
10 28 U.S.C. § 1870; FED. R. CRIM. P. 24(b), (c)(4); FED. R. CIV. P. 47(b).
11 Frazier v. United States, 335 U.S. 497, 505 (1948) (“The right of peremptory challenge is given, of course, to be
exercised in the party’s sole discretion.”).
12 Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019); see also Swain, 380 U.S. at 220 (“[T]he essential nature of the
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Today that discretion is limited by Supreme Court precedent, starting with Batson v. Kentucky,13
which precludes the use of certain types of discriminatory peremptory challenges in both federal
and state proceedings.14 Although Batson involved race-based peremptory challenges, the Court
has subsequently clarified that peremptory challenges that discriminate based on ethnicity and
gender are similarly impermissible.15
Peremptory challenges have “very old credentials,”16 are “one of the most important of the rights
secured to the accused,”17 and help secure the right to an impartial jury.18 Some jurists and
observers have criticized peremptory challenges, contending that they still allow for
discrimination, despite Batson.19 For example, critics pointed out that, in the 2021 Georgia state
trial for the killing of Ahmaud Arbery, only one Black person remained on the jury after the
defense attorneys used their peremptory challenges.20 A number of states—including Arizona,21
Washington,22 and California23—have abolished or restricted the use of peremptory challenges in
state courts.
This report provides legal background on peremptory challenges at the federal level, with
particular emphasis on how Batson and its progeny have limited such challenges. The report
examines the classifications protected by Batson and discusses the three-step Batson framework
for evaluating whether a peremptory challenge is discriminatory. For each Batson step, the report
summarizes the corresponding evidentiary burdens and standards along with a non-exhaustive

peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the
court’s control.”).
13 476 U.S. 79 (1986).
14 Batson involved the use of a peremptory challenge in a state proceeding, id. at 82, and subsequent Supreme Court
cases have also applied Batson in federal proceedings. E.g., United States v. Martinez-Salazar, 528 U.S. 304, 311-15
(2000) (federal proceeding).
15 See infra § “Classifications Protected by Batson and Progeny”
16 Swain, 380 U.S. at 212. Peremptory challenges date back to the 1700s in the United States and earlier in English
common law. Id. at 212-14.
17 Id. at 219 (quoting Pointer v. United States, 151 U.S. 396, 408 (1894)).
18 U.S. CONST. amend. VI. For more information on the Sixth Amendment right to an impartial jury, and its
applicability in state and federal proceedings, see generally Cong. Rsch. Serv., Amdt6.6 Right to an Impartial
Jury, CONSTITUTION ANNOTATED, https://constitution.congress.gov/browse/essay/amdt6-6/
ALDE_00000940/ (last visited Aug. 22, 2022).
19 See, e.g., Batson, 476 U.S. at 102-03 (Marshall J., concurring) (warning that “eliminating peremptory challenges
entirely” is the only way to “end the racial discrimination that peremptories inject into the jury-selection process”), and
Miller-El v. Dretke (Miller-El II), 545 U.S. 231, 267-73 (2005) (Breyer J., concurring) (surveying shortcomings with
Batson test and peremptory challenges, and stating belief that it is “necessary to reconsider Batson’s test and the
peremptory challenge system as a whole”). For additional discussion, including a summary of common critiques of
peremptory challenges, see generally LAFAVE ET AL., supra note 5, § 22.3(d); CONNECTICUT JURY SELECTION TASK
FORCE, REPORT OF THE JURY SELECTION TASK FORCE TO CHIEF JUSTICE RICHARD A. ROBINSON 18-23 (Dec. 2020),
https://jud.ct.gov/Committees/jury_taskforce/ReportJurySelectionTaskForce.pdf#page=23 (hereinafter “Connecticut
Task Force”).
20 See, e.g., Silvia Foster-Frau and Hannah Knowles, Nearly all-White jury in Arbery killing highlights long-standing
fears of racial bias in jury selection, WASH. POST (Nov. 4, 2021), https://www.washingtonpost.com/nation/2021/11/04/
arbery-juries-race/ (“Using a standard court procedure called a peremptory strike, the attorneys eliminated all but one
of the dozen Black people in the final jury pool this week, leaving a nearly all-White panel to weigh murder charges in
a killing that many see as inseparable from race.”).
21 Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil
Procedure, (Ariz. Aug. 30, 2021).
22 Wash. Gen. R. 37.
23 Cal. Civ. Proc. Code § 231.7.
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survey of evidentiary factors that courts may consider.24 Finally, the report concludes with an
overview of selected efforts to legislate on peremptory challenges and related congressional
considerations.
Peremptory Challenges: Legal Background
The number and allocation of peremptory challenges depend, at the federal level, on a
combination of statute and rules of judicial procedure.25 Rule 24 of the Federal Rules of Criminal
Procedure governs peremptory challenges in federal criminal proceedings, allowing different
numbers of peremptory challenges for the prosecution and the defense depending on the penalties
connected to the alleged violation.26 For federal civil trials, each party is ordinarily entitled to
three peremptory challenges pursuant to Rule 47(b) of the Federal Rules of Civil Procedure,
which sets that number by reference to 28 U.S.C. § 1870.27
An underlying rationale for peremptory challenges is that they help create an impartial jury.28
Although the right to an impartial jury trial “implicates Due Process as well as Sixth Amendment
rights,”29 the Constitution does not guarantee a right to peremptory challenges.30 Nevertheless, the
Supreme Court has deemed the peremptory challenge “one of the most important of the rights
secured to the accused.”31
Despite the wide latitude afforded parties in determining whether to exercise a peremptory
challenge against a potential juror, there is an important limit.32 In Batson v. Kentucky, the
Supreme Court held that the Fourteenth Amendment’s Equal Protection Clause33 prohibits a
prosecutor from challenging “potential jurors solely on account of their race.”34 According to the

24 See Batson, 476 U.S. at 97 (expressing confidence in trial courts’ ability to determine whether the “use of peremptory
challenges creates a prima facie case of discrimination against black jurors” based on relevant circumstances).
25 See 28 U.S.C. § 1870; FED. R. CRIM. P. 24(b), (c)(4); FED. R. CIV. P. 47(b); accord Frazier v. United States, 335 U.S.
497, 506 n.11 (1948) (“The right [to peremptory challenges] is in the nature of a statutory privilege, variable in the
number of challenges allowed, which may be withheld altogether without impairing the constitutional guaranties of ‘an
impartial jury’ and a fair trial.”).
26 See FED. R. CRIM. P. 24(b), (c)(4). In general, Rule 24 provides the defendant and government 20 peremptory
challenges each in capital cases, and 3 peremptory challenges each in misdemeanor cases. Id. For non-capital felonies,
Rule 24 provides the government with 6 peremptory challenges and the defendant with 10. Id. The Rule also authorizes
more peremptory challenges in instances where alternate jurors are impaneled. Id.
27 28 U.S.C. § 1870; FED. R. CIV. P. 47 (“The court must allow the number of peremptory challenges provided by 28
U.S.C. § 1870.”). Although three peremptory challenges per party is the default in civil matters, “the court may allow
additional peremptory challenges and permit them to be exercised separately or jointly.” 28 U.S.C. § 1870.
28 Swain v. Alabama, 380 U.S. 202, 219 (1965), overruled by Batson, 476 U.S. at 79 (“The function of the challenge is
not only to eliminate extremes of partiality on both sides, but to assure the parties that the jurors before whom they try
the case will decide on the basis of the evidence placed before them, and not otherwise.”); Frazier, 335 U.S. at 505
(noting that peremptory challenges are “given in aid of the party’s interest to secure a fair and impartial jury”).
29 United States v. Nelson, 277 F.3d 164, 201 (2d Cir. 2002).
30 United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (“[W]e have long recognized ... [that peremptory]
challenges are auxiliary; unlike the right to an impartial jury guaranteed by the Sixth Amendment, peremptory
challenges are not of federal constitutional dimension.”).
31 Swain, 380 U.S. at 219 (quoting Pointer v. United States, 151 U.S. 396, 408 (1894)).
32 See Batson, 476 U.S. at 86-88.
33 For a discussion of the Equal Protection clause and racial classifications, see generally, e.g., CONSTITUTION
ANNOTATED, Amdt14.S1.4.1.1 Race-Based Classifications: Overview, CONSTITUTION.CONGRESS.GOV (last visited Aug.
22, 2022), https://constitution.congress.gov/browse/essay/amdt14-S1-4-1-1/ALDE_00000816/.
34 Batson, 476 U.S. at 89. Although Batson focused specifically on race as a prohibited discriminatory purpose for
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Court in Batson, “[p]urposeful racial discrimination in [jury] selection ... violates a defendant’s
right to equal protection because it denies him the protection that a trial by jury is intended to
secure.”35 In Batson and its progeny, the Court clarified that discriminatory peremptory
challenges violate not only a defendant’s equal protection rights but also those of the excluded
potential juror and the community at large.36
The Court has expanded the reach of Batson in at least four other ways. First, the Court has
clarified that “a defendant may raise a Batson claim even if the defendant and the excluded juror
are of different races.”37 Second, it has expanded Batson to encompass peremptory challenges
that discriminate based on ethnicity and gender in addition to race.38 Third, it has applied Batson
to civil as well as criminal proceedings.39 And fourth, it has applied the doctrine to criminal
defendants’ challenges.
In extending Batson beyond prosecutors’ challenges, the Court had to resolve the matter of state
action. Racial discrimination amounts to an equal protection violation only where state action is
involved,40 and civil lawsuits often involve disputes between private litigants.41 The Court applied
a two-part inquiry and held that a peremptory challenge made by a private litigant “was pursuant
to a course of state action.”42 In one part of its inquiry, the Court analyzed “whether the claimed
constitutional deprivation resulted from the exercise of a right or privilege having its source in
state authority.”43 According to the Court, peremptory challenges qualify because they are
permitted only “by statute or decisional law.”44
For the other part of its inquiry, the Court probed “whether the private party charged with the
deprivation could be described in all fairness as a state actor.”45 The Court found several reasons

striking a juror, subsequent precedent has expanded Batson to preclude peremptory challenges justified on other
discriminatory grounds. See infra § “Classifications Protected by Batson and Progeny.” In some respects, Batson
represents a continuation of a line of earlier Supreme Court cases disapproving of racial exclusion in other aspects of
the jury system. Batson, 476 U.S. at 85 (“More than a century ago, the Court decided that the State denies a black
defendant equal protection of the laws when it puts him on trial before a jury from which members of his race have
been purposefully excluded.”).
35 Batson, 476 U.S. at 86.
36 See Powers v. Ohio, 499 U.S. 400, 409 (1991) (“An individual juror does not have a right to sit on any particular
petit jury, but he or she does possess the right not to be excluded from one on account of race.”); Georgia v. McCollum,
505 U.S. 42, 50 (1992) (“Just as public confidence in criminal justice is undermined by a conviction in a trial where
racial discrimination has occurred in jury selection, so is public confidence undermined where a defendant, assisted by
racially discriminatory peremptory strikes, obtains an acquittal.”); Batson, 476 U.S. at 87 (“Racial discrimination in
selection of jurors harms not only the accused whose life or liberty they are summoned to try.”).
37 Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019); accord McCollum, 505 U.S. at 49 (“Regardless of who invokes
the discriminatory challenge, there can be no doubt that the harm is the same—in all cases, the juror is subjected to
open and public racial discrimination.”).
38 See infra § “Classifications Protected by Batson and Progeny.”
39 Edmonson v. Leesville Concrete Co., 500 U.S. 614, 631 (1991) (holding that the approach established in Batson to
determine whether a prima facie case of racial discrimination has been established applies in the civil context and
“leav[ing] it to the trial courts ... to develop evidentiary rules for implementing [the Court’s] decision”).
40 Edmonson, 500 U.S.at 619; see also Cong. Rsch. Serv., Amdt14.2 State Action Doctrine, CONSTITUTION
ANNOTATED, https://constitution.congress.gov/browse/essay/amdt14-2/ALDE_00000810/ (last visited Sept.. 28,
2022).
41 E.g., Edmonson, 500 U.S. at 618.
42 Id. at 622.
43 Id. at 620.
44 Id.
45 Id.
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for considering a private litigant as a state actor when making peremptory challenges. First,
according to the Court, a litigant “relies on ‘governmental assistance and benefits’” such as the
underlying jury system; second, peremptory challenges perform the “traditional function of
government” because they aid in “selecting an entity [a jury panel] that is a quintessential
governmental body” and that “exercises the power of the court and of the government;” and third,
the courtroom setting of peremptory challenges “compounds the racial insult inherent in judging a
citizen by the color of his or her skin” and “raises serious questions as to the fairness of the
proceedings conducted there.”46
Then, applying similar state action analysis, the Supreme Court extended Batson to prohibit
discriminatory peremptory challenges by defendants as well as prosecutors,47 although many
Batson claims involve alleged misuse of peremptory challenges by prosecutors.48 In reaching that
conclusion, the Court observed that some of the harms that result from discriminatory peremptory
challenges are the same regardless of whether the challenge originates with the prosecution or the
defendant—namely, that discriminatory challenges subject the juror to “open and public racial
discrimination” and undermine public confidence in the verdict and the criminal justice system.49
Although the Equal Protection Clause expressly restricts only the states, the Court has said that it
would be “unthinkable that the same Constitution would impose a lesser duty on the Federal
Government” than on the states with respect to discrimination.50 Thus, Batson forecloses
discriminatory peremptory challenges made not only in state trials but also in federal trials.51 In
practice, however, most Batson challenges arise in state courts.52
Batson: Evidentiary Burdens, Standards, and Factors
Batson established a three-step framework for evaluating whether a given peremptory challenge
is discriminatory and therefore violates equal protection rights.53 The exact evidentiary burdens
and standards shift with each step—although the “ultimate burden of persuasion” regarding
discriminatory motivation “rests with, and never shifts from, the opponent of the strike.”54
Although the three steps are conceptually separate, courts sometimes combine them when

46 621-28.
47 Georgia v. McCollum, 505 U.S. 42, 48-50 (1992).
48 See, e.g., Flowers, 139 S. Ct. at 2235; accord H.R. REP. NO. 95-195, at 48-49, 54 (1977) (“The testimony and
statistics presented to the Subcommittee on Criminal Justice indicate that” it “is the prosecution that most often uses
peremptories” to “exclude classes of people”); Alafair S. Burke, Prosecutors and Peremptories, 97 IOWA L. REV. 1467,
1471 (2012) (“A recent two-year study of eight southern states found that prosecutors routinely dismissed African-
American venire members for pretextual reasons.”).
49 McCollum, 505 U.S. at 49.
50 Bolling v. Sharpe, 347 U.S. 497, 500 (1955); see also Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 217 (1995)
(describing Court precedent as “treat[ing] the equal protection obligations imposed by the Fifth and the Fourteenth
Amendments as indistinguishable”).
51 E.g., Alvarado v. United States, 497 U.S. 543, 545 (1990) (per curiam) (vacating judgment and remanding to federal
court of appeals to conduct Batson analysis).
52 E.g., Flowers v. Mississippi, 139 S. Ct. 2228, 2235 (2019) (summarizing various Batson challenges made during
state prosecution); see also Richard A. Primus, Bolling Alone, 104 COLUM. L. REV. 975, 1002-03 (2004) (“Since
Batson, there has been only one reported instance of a federal prosecutor exercising a race-based peremptory
challenge.”). As of July 28, 2022 a search of the Westlaw database for cases citing Batson yielded 12,130 state law
opinions and 6,245 federal opinions.
53 Batson v. Kentucky, 476 U.S. 79, 96-98 (1986).
54 Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam).
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analyzing peremptory challenges.55 To the extent possible, this section separates the three steps of
the Batson framework, describing the relevant evidentiary burdens, standards, and factors a court
may consider.
Step 1: Prima Facie Case by Objecting Party
In the first Batson step, the party objecting to a peremptory challenge “must make a prima facie
showing that a peremptory challenge has been exercised on the basis of race”56 or on the basis of
another prohibited reason.57 The burden on the objecting party at the first step is not “onerous.”58
Rather, it requires a “showing that the totality of relevant facts gives rise to an inference of
discriminatory purpose”59—a standard that courts have described as less demanding than either a
preponderance of the evidence standard or a “more likely than not” standard.60
The relevant facts are circumstance-dependent and may vary.61 It may include statistical evidence
that a party made a disproportionate number of peremptory challenges against jurors of the same
race or other protected classification.62 A party’s use of peremptory challenges to strike all
potential jurors of a protected classification supports a prima facie case of discriminatory
purpose,63 even where the party strikes only a single juror.64 The statements and questions of the
party exercising the peremptory challenge may also be relevant.65

55 See, e.g., Flowers, 139 S. Ct. at 2243 (listing relevant evidence for court to consider but not expressly stating at
which step of the Batson framework a trial court should consider it).
56 Miller-El v. Cockrell (Miller-El I), 537 U.S. 322, 328 (2003) (citing Batson, 476 U.S. at 96-97).
57 See supra § “Classifications Protected by Batson and Progeny.”
58 Johnson v. California, 545 U.S. 162, 170 (2005).
59 Batson, 476 U.S. at 94; accord Johnson, 545 U.S. at 170.
60 Johnson, 545 U.S. at 168 (concluding that California’s “more likely than not” standard was “an inappropriate
yardstick by which to measure the sufficiency of a prima facie case”).
61 Jones v. West, 555 F.3d 90, 97 (2d Cir. 2009) (“In deciding whether the defendant has demonstrated a prima facie
case of discrimination, the trial court should take into account ‘all relevant circumstances.’” (quoting Batson, 476 U.S.
at 94)).
62 Batson, 476 U.S. at 97 (“For example, a ‘pattern’ of strikes against black jurors included in the particular venire
might give rise to an inference of discrimination.”); United States v. Alvarado, 923 F.2d 253, 256 (2d Cir. 1991) (“We
think a challenge rate nearly twice the likely minority percentage of the venire strongly supports a prima facie case
under Batson.”); but see LAFAVE ET AL., supra note 5, § 22.3(d) (“[T]here is not a per se rule that a certain number or
percentage of the challenged jurors must be of within the challenged class in order for the court to conclude a prima
facie case has been made out.”).
63 See, e.g., United States v. Chinchilla, 874 F.2d 695, 698 n.4 (9th Cir. 1989) (“The fact that all the Hispanic jurors
were challenged is significant though not required for a prima facie case to exist.”).
64 See United States v. Roan Eagle, 867 F.2d 436, 441 (8th Cir. 1989) (concluding that there was prima facie case of
discriminatory purpose where “there was one potential American Indian juror and that juror was struck”); United States
v. Esparsen, 930 F.2d 1461, 1466 (10th Cir. 1991) (explaining that “the striking of a single juror will not always
constitute a prima facie case, but, when no members of defendant’s race remain because of that strike, it does”
(footnote omitted)); United States v. Chalan, 812 F.2d 1302, 1313-14 (10th Cir. 1987) (holding that defendant
established prima facie case where three out of four potential Native American jurors were struck for cause, and a
peremptory challenge was used to strike the fourth).
65 Batson, 476 U.S. at 96-97.
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Step 2: Neutral Justification by Party Supporting Peremptory
Challenge
Once a prima facie case has been made at the first step, the second Batson step shifts the burden
to the party making the peremptory challenge to offer nondiscriminatory reasons for the
exclusion.66 The issue at the second step is the truth of the given reason, and unless “a
discriminatory intent is inherent in the ... explanation, the reason offered will be deemed race
neutral.”67 The explanation provided need not be “minimally persuasive,”68 let alone “rise to the
level justifying exercise of a challenge for cause.”69 Rather, even a “silly or superstitious” reason
may be sufficiently neutral to survive the second step.70 But there are some standards the reason
must satisfy. The explanation for the peremptory challenge must be “clear and reasonably
specific,”71 and the party explaining the peremptory strike must do more than “affirm[] his good
faith” and “deny[] that he had a discriminatory motive.”72 Further, “[a] neutral explanation ...
means an explanation based on something other than the race of the juror.”73 In practice,
justifications vary widely, and “[v]alid reasons for exclusion [of jurors] may include ‘intuitive
assumptions’ upon confronting” a potential juror such as “eye contact, demeanor, age, marital
status, and length of residence in the community,”74 family background,75 and even the presence
of facial hair.76 Given the low standard at step two, even if the party “produces only a frivolous or
utterly nonsensical justification for its strike, the case does not end—it merely proceeds to step
three.”77
Step 3: Trial Court Determination
If a party making the challenge gives a “neutral explanation” for the peremptory strike at step
two, it triggers the third Batson step, which requires the trial court to decide whether the party
objecting to the strike “has proved purposeful ... discrimination.”78 Although the ultimate burden
rests with the opponent of the strike, the “critical question” at step three is the persuasiveness of
the justification for the peremptory strike and whether the objecting party has persuaded the court

66 Johnson v. California, 545 U.S. 162, 168 (2005).
67 Purkett v. Elem, 514 U.S. 765, 768 (1995) (per curiam) (quoting Hernandez v. New York, 500 U.S. 352, 360 (1991)
(plurality opinion)).
68 Purkett, 514 U.S. at 768.
69 Batson, 476 U.S. at 97.
70 Purkett, 514 U.S. at 768.
71 Miller-El II, 545 U.S. 231, 239 (2005) (quoting Batson, 476 U.S. at 98 n.20).
72 Purkett, 514 U.S. at 769.
73 Hernandez v. New York, 500 U.S. 352, 360 (1991) (plurality opinion).
74 United States v. De La Rosa, 911 F.2d 985, 991 (5th Cir. 1990) (quoting United States v. Terrazas-Carrasco, 861 F.2d
93, 94 (5th Cir. 1988)); see also United States v. Ruiz, 894 F.2d 501, 506-07 (2d Cir. 1990) (finding no error where trial
court accepted facial expressions and body language as neutral justifications for peremptory challenges of Hispanic
jurors).
75 See, e.g., United States v. Mathis, 96 F.3d 1577, 1582 (11th Cir. 1996) (finding no clear error in drug crimes case
where potential juror “was removed because a close family member of hers had had a cocaine conviction”).
76 See Purkett, 514 U.S. at 769 (“The prosecutor’s proffered explanation in this case–that he struck juror number 22
because he had long, unkempt hair, a mustache, and a beard–is race neutral and satisfies the prosecution’s step two
burden of articulating a nondiscriminatory reason for the strike.”).
77 Johnson v. California, 545 U.S. 162, 171 (2005).
78 Purkett, 514 U.S. at 767; Batson v. Kentucky, 476 U.S. 79, 97 (1986).
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that the peremptory challenge is attributable to a discriminatory purpose.79 This is a question of
credibility, and justifications accepted as neutral at step two may be rejected for lack of credibility
at step three—“[a]t this stage, ‘implausible or fantastic justifications may (and probably will) be
found to be pretexts for purposeful discrimination.’”80
The Batson Court did not elaborate as to how a trial court should conduct an analysis under this
final step.81 At least three federal appellate courts have concluded that the opponent of the strike
must satisfy this burden by a preponderance of the evidence.82 Generally, preponderance of the
evidence requires proof that something is more likely than not.83
At the third step, trial courts have considerable discretion84 but must engage in “a sensitive
inquiry” and consult “all of the circumstances that bear upon the issue of racial animosity.”85
Relevant evidence and factors will vary based on the circumstances but might include:
 The credibility of the party making the peremptory challenge, based on the
party’s demeanor, the reasonableness of his or her justifications, and whether the
“proffered rationale” fits in to “accepted trial strategy;”86
 Whether a party’s given reasons for making the disputed challenge would apply
equally to other jurors—not of the same protected classification—whom the
party left on the jury;87
 Whether the party explained the peremptory challenge by mischaracterizing the
potential juror’s testimony;88

79 Miller-El I, 537 U.S. 322, 338-39 (2003); see also Purkett, 514 U.S. at 768 (“It is not until the third step that the
persuasiveness of the justification becomes relevant-the step in which the trial court determines whether the opponent
of the strike has carried his burden of proving purposeful discrimination.”).
80 Miller-El I, 537 U.S. at 339 (quoting Purkett, 514 U.S. at 768).
81 Batson, 476 U.S. at 97.
82 See Williams v. Beard, 637 F.3d 195, 213 (3d Cir. 2011) (“After the parties have satisfied their respective burdens of
production in these first two steps, the defendant must prove purposeful discrimination by a preponderance of the
evidence.”); McKinney v. Artuz, 326 F.3d 87, 98 (2d Cir. 2003) (“Finally, the court must determine whether the
moving party carried the burden of showing by a preponderance of the evidence that the peremptory challenge at issue
was based on race.”); United States v. Tucker, 90 F.3d 1135, 1142 (6th Cir. 1996) (“[B]ecause the district court here
issued its ruling after considering the prosecution’s explanation, the question in the instant case boils down to whether
the appellants established by a preponderance of the evidence that the preemptory strikes were intentionally
discriminatory”); accord LAFAVE ET AL., supra note 5, § 22.3(d) (“The burden at the third step is preponderance of the
evidence, not clear and convincing.”). In at least two opinions the Supreme Court has suggested that the evidentiary
standard at step three is preponderance of the evidence, although it has not expressly said so. See Johnson, 545 U.S. at
170 (describing the third Batson step as requiring a trial court to decide “whether it was more likely than not that the
challenge was improperly motivated”); Davis v. Ayala, 576 U.S. 257, 296 (2015) (describing, in passing, the standard a
trial court uses to determine whether “peremptory strikes [were] racially motivated” as “preponderance of the
evidence”).
83 See Preponderance of the Evidence, WEX LEGAL DICTIONARY, available at https://www.law.cornell.edu/wex/
preponderance_of_the_evidenc (“Under the preponderance standard, the burden of proof is met when the party with the
burden convinces the fact finder that there is a greater than 50% chance that the claim is true.”).
84 See, e.g., Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019) (“We have recognized that these determinations of
credibility and demeanor lie peculiarly within a trial judge’s province.” (quoting Snyder v. Louisiana, 552 U.S. 472,
477 (2008))).
85 Foster v. Chatman, 578 U.S. 488, 501 (2016) (quoting Snyder, 552 U.S. at 478).
86 Miller-El I, 537 U.S. 322, 339 (2003).
87 Miller-El II, 545 U.S. 231, 241 (2005).
88 Id. at 244; accord Flowers, 139 S. Ct. at 2243, (offering, as one relevant criterion, “a prosecutor’s misrepresentations
of the record when defending the strikes during the Batson hearing”).
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 The party’s failure to question the challenged juror about matters relating to the
purported basis for the challenge;89
 The use of “contrasting voir dire questions posed respectively to black and
nonblack panel members;”90
 An official policy of excluding minorities from jury service;91
 “Statistical evidence about the prosecutor’s use of peremptory strikes against”
prospective jurors of one protected classification, “as compared to” potential
jurors not of that classification;92
 “[S]ide-by-side comparisons” of potential jurors of a protected classification
whom the party struck with those the party did not strike;93
 “Relevant history of the [prosecutor’s] peremptory strikes in past cases;”94 or
 “[O]ther relevant circumstances that bear upon the issue of ... discrimination.”95
Where a party’s reason for a peremptory challenge “does not hold up” as genuine against the
evidence at step three, a court should not “imagine a reason that might not have been shown up as
false.”96 For example, in one case a prosecutor used a peremptory challenge to strike a black juror
because he viewed the death penalty as “an easy way out” in some situations.97 The Supreme
Court concluded that initial justification was pretextual in light of other evidence of racial pretext,
including similar statements made by other potential jurors—“most of them white” and “none of
them struck” by the prosecutor.98 The appellate court had re-characterized the peremptory
challenge as based on a concern over the prospective juror’s “general ambivalence about the
penalty and his ability to impose it.”99 But the Supreme Court explained that the appellate court
should not have supplanted the prosecutor’s rationale with its own, because a party’s peremptory
challenge must “stand or fall on the plausibility of the reasons he gives,” and the court’s
subsequent “substitution of a reason for eliminating [a prospective juror] does nothing to satisfy
the [party’s] burden of stating a racially neutral explanation for their own actions.”100
Thus, at the third step in the process, a court reviews and ultimately determines (1) whether the
objecting party has carried the burden of establishing a discriminatory intent and (2) whether the

89 Miller-El II, 545 U.S. at 246.
90 Id. at 255; accord Flowers, 139 S. Ct. at 2243, (listing, as one relevant factor, “evidence of a prosecutor’s disparate
questioning and investigation of black and white prospective jurors in the case”).
91 For example, the Supreme Court seemingly gave weight to evidence that prosecutors had used a “20–year–old
manual of tips on jury selection” that supported challenging minority potential-jurors. Miller-El II, 545 U.S. at 266.
92 Flowers, 139 S. Ct. at 2243.
93 Id.; cf. United States v. Terrazas-Carrasco, 861 F.2d 93, 95 (5th Cir. 1988) (“[T]he fact that the prosecutor exercised
only six out of his seven challenges to exclude members of defendant’s race, although several others remained in the
venire, substantially supports the finding of no discrimination.”).
94 Flowers, 139 S. Ct. at 2243.
95 Id. A party’s use of state court jury-selection procedures may be relevant when they have the effect of removing
members of a particular classification from a jury. See, e.g., Miller-El II, 545 U.S. at 253-54 (describing suspicious use
of a jury “shuffle” under Texas state law to “rearrang[e] the order in which members of a venire panel are seated and
reached for questioning” when “black panel members ended up at the back”).
96 Miller-El II, 545 U.S. at 252.
97 Id. at 248.
98 Id.
99 Id. at 250.
100 Id. at 252.
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neutral explanation given for the peremptory challenge is credible and persuasive.101 Lastly, the
exact remedies for Batson violations may vary102 but are available even where the discrimination
impacts a single potential juror.103
Classifications Protected by Batson and Progeny
The Court in Batson considered discriminatory peremptory challenges made to strike Black
jurors—and the decision applied only to race-based peremptory challenges.104 Subsequently, the
Court clarified that Batson bars not only peremptory challenges based on race105 but also those
based on ethnicity106 and gender.107 Although the Supreme Court has not expressly decided
whether peremptory challenges based on national origin violate Batson,108 a number of federal

101 Miller-El I, 537 U.S. 322, 338 (2003); accord Miller-El II, 545 US at 241.
102 See, e.g., Batson v. Kentucky, 476 U.S. 79, 99, n.24 (1986) (declining to specify remedy for Batson violation but
suggesting as possibilities, discharging “the venire and select[ing] a new jury from a panel not previously associated
with the case,” and “disallow[ing] the discriminatory challenges and resum[ing] selection with the improperly
challenged jurors reinstated on the venire”); United States v. Walker, 490 F.3d 1282, 1294 (11th Cir. 2007)
(“In Batson, the ‘Supreme Court made it clear that the fashioning of a remedy [for an unconstitutional strike] is a
matter upon which [the lower] courts are to be accorded significant latitude.’”(quoting Koo v. McBride, 124 F.3d 869,
873 (7th Cir.1997)). For example, where a Court finds a Batson violation before trial, it may reject the peremptory
challenge to the potential juror at issue and return that juror to the venire. See, e.g., United States v. Ramirez-Martinez,
273 F.3d 903, 910 (9th Cir. 2001), overruled on other grounds by United States v. Lopez, 484 F.3d 1186 (9th Cir. 2007);
(concluding that returning jurors to venire after district court found Batson violation was as an appropriate exercise of
discretion). Alternatively, a Court may choose to “begin afresh with a new venire.” Walker, 490 F.3d at 1295. At least
two circuits have concluded that a Batson violation is a “structural error” generally requiring reversal and a new trial.
Crittenden v. Chappell, 804 F.3d 998, 1003 (9th Cir. 2015); United States v. McFerron, 163 F.3d 952, 956 (6th Cir.
1998). For additional discussion of Batson remedies, including on appeal, see generally LAFAVE ET AL., supra note 5, §
22.3(d).
103 Flowers v. Mississippi, 139 S. Ct. 2228, 2244 (2019) (“The Constitution forbids striking even a single prospective
juror for a discriminatory purpose.”); see also United States v. Vasquez-Lopez, 22 F.3d 900, 902 (9th Cir. 1994) (“To
establish a prima facie case” a party does “not need to show that the prosecution had engaged in a pattern of
discriminatory strikes against more than one prospective juror”).
104 Batson, 476 U.S. at 89.
105 See Flowers, 139 S. Ct. at 2243 (“A defendant of any race may raise a Batson claim.”); Federal courts have applied
Batson to bar peremptory challenges against individuals from a variety of racial backgrounds. See, e.g., United States v.
Thompson, 528 F.3d 110, 118 (2d Cir. 2008), as amended (July 1, 2008) (concluding that Batson applies where “an
African American defendant seeks to eliminate white jurors”); Kesser v. Cambra, 465 F.3d 351, 368 (9th Cir. 2006) (en
banc)(finding Batson violation in peremptory challenge of Native American woman); United States v. Iron Moccasin,
878 F.2d 226, 229 (8th Cir. 1989) (concluding that Batson encompasses American Indians).
106 See Rivera v. Illinois, 556 U.S. 148, 153 (2009) (“[P]arties are constitutionally prohibited from exercising
peremptory challenges to exclude jurors on the basis of race, ethnicity, or sex.”); Hernandez v. New York, 500 U.S.
352, 371 (1991) (plurality opinion) (analyzing case where peremptory challenges were used against Latinos and
describing circumstances in which foreign language proficiency might be a proxy for ethnicity, and thus a prohibited
justification for exercising a peremptory challenge).
107 J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 129 (1994) (“We hold that gender, like race, is an unconstitutional
proxy for juror competence and impartiality.”).
108 See Watson v. Ricks, No. 05 Civ. 7288 (S.D.N.Y. Jan. 24, 2007) (Report and Recommendation of Pauley III, J.).
(“[T]he Court has never directly addressed the question of whether the use of peremptory challenges on the basis of
national origin is prohibited under Batson.”); Sorto v. Herbert, 364 F. Supp. 2d 240, 242 (E.D.N.Y. 2004), aff'd, 480
F.3d 609 (2d Cir. 2007), opinion amended and superseded, 497 F.3d 163 (2d Cir. 2007), and aff'd, 497 F.3d 163 (2d
Cir. 2007) (same); but see Hernandez v. State of Tex., 347 U.S. 475, 479 (1954) (evaluating allegations of systematic
exclusion of “persons of Mexican descent” from jury service and observing that the “exclusion of otherwise eligible
persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the
Fourteenth Amendment.”).
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courts have suggested that they do.109 However, “the line between ethnic and nation origin is not
always clear.”110 For example, some federal courts have applied Batson to peremptory challenges
that could have been based on national origin or ethnicity without expressly specifying which
classification they deemed relevant.111 In one unpublished opinion, the United States District
Court for the Southern District of New York ordered a Batson hearing where “the prosecutor used
peremptory challenges to exclude four prospective jurors from Jamaica and one from Trinidad
from the jury.”112 Although the federal magistrate judge had construed the relevant classification
as national origin and concluded that Batson applied in that context, the district court concluded
that an “objection based on the exclusion of a race of people (i.e., blacks) from multiple countries
(i.e., Jamaica and Trinidad) is more appropriately analyzed as based on ethnic origin.”113 Another
federal court has extended Batson to bar peremptory challenges that discriminate against Italian
Americans but appeared to characterize the discrimination as based not on national origin but
rather on race and ethnicity.114
In other contexts—such as federal employment discrimination statutes—the Supreme Court has
concluded that sex-based discrimination includes discrimination based on an “individual’s
homosexuality or transgender status,”115 but the Court has not examined the issue in the Batson
context.116 In the absence of clear guidance, federal courts have disagreed on whether Batson
prohibits peremptory challenges based on a potential juror’s sexual orientation,117 and federal

109 See Pemberthy v. Beyer, 19 F.3d 857, 870 (3d Cir. 1994) (“We believe that Batson does not apply to peremptory
challenges unless they are based on classifications, such as race or national origin, that are subject to ‘strict’ scrutiny
under equal protection doctrine, or possibly those classifications, such as gender, that are subjected to ‘heightened’
scrutiny.” (emphasis added)); Bronshtein v. Horn, No. CIV. A. 99-2186, 2001 WL 936702, at *3 (E.D. Pa. Aug. 16,
2001) (“There is no question that Batson applies to discrimination on the basis of national origin and ethnicity.”);
United States v. Bin Laden, 91 F. Supp. 2d 600, 625 (S.D.N.Y. 2000) (“Moreover, it is well settled that equal
protection principles forbid discriminatory exclusions from jury service on the basis of factors such as race and national
origin.”); but see Sorto, 364 F. Supp. 2d at 242 (reviewing case law and denying petition for habeas relief where trial
court rejected Batson claim based on national origin).
110 Watson v. Ricks, No. 05 CIV 7288 WHP JCF, 2008 WL 490610, at *2 n.1 (S.D.N.Y. Feb. 22, 2008) (citing Saint
Francis Coll. v. Al-Khazraji, 481 U.S. 604, 614 (1987) (Brennan, J. concurring)).
111 See, e.g., United States v. Romero-Reyna, 867 F.2d 834, 836 (5th Cir. 1989) (remanding convictions for Batson
analysis where the government used “six peremptory challenges to strike Mexican–Americans from the jury,” but not
specifying whether peremptory challenges were impermissibly based on ethnicity or national origin); see also United
States v. Rudas, 905 F.2d 38, 41 (2d Cir. 1990) (“Hispanics are a cognizable group for purposes of the first step of the
Batson inquiry.”).
112 Watson, 2008 WL 490610, at *1.
113 Id. at *2, n. 1.
114 See United States v. Biaggi, 673 F. Supp. 96, 102 (E.D.N.Y. 1987), aff'd, 853 F.2d 89 (2d Cir. 1988) (“It can
therefore be confidently concluded that the Court in Batson meant ‘cognizable racial groups’ to include a variety of
ethnic and ancestral groups subject to intentional discrimination, including Italian-Americans.”).
115 Bostock v. Clayton Cty., Georgia, 140 S. Ct. 1731, 1741 (2020).
116 See Id. at 1753 (declining to consider implications of employment sex-discrimination jurisprudence in other
contexts); Smith v. MacEachern, No. CV 09-10434-NMG, 2019 WL 2543504, at *13 (D. Mass. June 20, 2019) (noting
that it “remains the status of the law today” that “no Supreme Court case law established that peremptory challenges
based on either sexual orientation or transgender status were unconstitutional”).
117 Compare SmithKline Beecham Corp. v. Abbott Lab’ys, 740 F.3d 471, 475-76, 485 (9th Cir. 2014) (holding that
“exclusion of the juror because of his sexual orientation violated Batson” because peremptory strikes “exercised on the
basis of sexual orientation continue [the] deplorable tradition of treating gays and lesbians as undeserving of
participation in our nation’s most cherished rites and rituals”), with Sneed v. Fla. Dep’t of Corr., 496 F. App’x 20, 27
(11th Cir. 2012) (“[T]he Supreme Court has never held that homosexuality is a protected class for purposes of analyzing
discrimination in jury selection under Batson.”), and United States v. Blaylock, 421 F.3d 758, 769 (8th Cir. 2005)
(“[W]e doubt Batson and its progeny extend constitutional protection to the sexual orientations of venire persons.”),
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case law exploring the application of Batson to peremptory challenges involving gender identity
is scarce.118 Federal courts are also divided on the extent to which peremptory challenges based
on a potential juror’s religion violate Batson.119 Lastly, federal courts have generally been
reluctant to extend Batson in a variety of other contexts—declining to bar peremptory challenges
based on political affiliation or beliefs,120 age,121 and disability.122
Amendments and Proposed Reforms
The merits and drawbacks of peremptory challenges have long been a subject of debate.123 A
number of legal scholars and observers have proposed various changes to peremptory

and United States v. Ehrmann, 421 F.3d 774, 782 (8th Cir. 2005) (similar).
118 But see Smith, 2019 WL 2543504, at *13 (surveying case law and other authorities and concluding in context of
federal habeas petition that a peremptory challenge was not “clearly contrary” to Supreme Court precedent even if it
had been exercised “on the basis of sexual orientation or gender identity”).
119 Compare United States v. Brown, 352 F.3d 654, 668-69 (2d Cir. 2003) (concluding that Batson prohibits
peremptory challenges “based solely on a venire member’s religious affiliation” but not necessarily those based on
religious activities), and United States v. Stafford, 136 F.3d 1109, 1114 (7th Cir.), modified, 136 F.3d 1115 (7th Cir.
1998) (addressing—in dicta—application of Batson to peremptory challenges based on religion and speculating that
“[i]t would be improper and perhaps unconstitutional to strike a juror on the basis of his being a Catholic, a Jew, a
Muslim, etc. [but it] would be proper to strike him on the basis of a belief that would prevent him from basing his
decision on the evidence and instructions, even if the belief had a religious backing”), and United States v. Somerstein,
959 F. Supp. 592, 595 (E.D.N.Y. 1997) (“[T]he Court holds that whether persons of the Jewish faith are considered a
religion or a race or both, in the context of this case, the Batson rule does apply.”), with United States v. Heron, 721
F.3d 896, 902 (7th Cir. 2013) (declining to extend Batson to peremptory challenges based on “religiosity” and casting
doubt on constitutionality and feasibility of applying Batson to peremptory challenges based on religion because
“[e]ven if the line between affiliation and religiosity were clear, it is unclear why someone’s religious affiliation ought
to be entitled to greater constitutional protection than that person’s religious exercise”), and United States v. DeJesus,
347 F.3d 500, 510 (3d Cir. 2003) (“Even assuming that the exercise of a peremptory strike on the basis of religious
affiliation is unconstitutional, the exercise of a strike based on religious beliefs is not.”).
120 See United States v. Prince, 647 F.3d 1257, 1261-64 (10th Cir. 2011) (declining to extend Batson to peremptory
challenges based on political ideology or beliefs, such as support for legalization of marijuana); United States v.
Villarreal, 963 F.2d 725, 729 (5th Cir. 1992) (“Political belief is not the overt and immutable characteristic that race is,
and we decline to extend the Batson line of cases to this case.”); LAFAVE ET AL., supra note 5, § 22.3(d) (“Attempts to
extend Batson to bar challenges based on ‘political affiliation’ have so far been rejected.”).
121 See, e.g., United States v. Helmstetter, 479 F.3d 750, 754 (10th Cir. 2007) (collecting cases, rejecting extension of
Batson to peremptory challenges based on age, and observing that “every other circuit to address the issue has rejected
the argument that jury-selection procedures discriminating on the basis of age violate equal protection”); see also
United States v. Maxwell, 160 F.3d 1071, 1076 (6th Cir. 1998) (rejecting expansion of Batson to cover young adults);
United States v. Cresta, 825 F.2d 538, 545 (1st Cir. 1987) (same).
122 See United States v. Watson, 483 F.3d 828, 829 (D.C. Cir. 2007) (determining that Batson did not bar peremptory
challenges of blind jurors); United States v. Harris, 197 F.3d 870, 876 (7th Cir. 1999) (“[T]he government’s use of its
peremptory challenge to strike [the potential juror] for reasons related to her disability did not violate the equal
protection rights of either [the defendant] or [the potential juror].”).
123 Compare Batson v. Kentucky, 476 U.S. 79, 102-03 (1986) (Marshall J., concurring) (warning that “eliminating
peremptory challenges entirely” is the only way to “end the racial discrimination that peremptories inject into the jury-
selection process”), and Miller-El II, 545 U.S. 231, 273 (2005) (Breyer J., concurring) (surveying shortcomings with
Batson test and peremptory challenges stating belief that it is “necessary to reconsider Batson’s test and the peremptory
challenge system as a whole”), with Christopher E. Smith & Roxanne Ochoa, The Peremptory Challenge in the Eyes of
the Trial Judge, 79 JUDICATURE 185, 189 (1996) (detailing survey of trial court judges and noting that “findings
indicate strong levels of support for and acceptance of most aspects of current peremptory challenge practices in the
federal trial courts”). For additional discussion, including a summary of common critiques, see generally LAFAVE ET
AL., supra note 5, § 22.3(d).; Connecticut Task Force, supra note 19.
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challenges.124 One common proposal is to abolish peremptory challenges entirely.125 Another is to
change the allocation of peremptory challenges to each party—often with the goal of affording
additional peremptory challenges to criminal defendants.126 Still others propose modifying the
Batson framework127 or disregarding it in certain contexts.128 This section provides various
examples at the state level to either abolish or modify peremptory challenges and Batson
frameworks before concluding with an overview of federal peremptory reform amendment efforts
and related congressional considerations.

124 See, e.g., Adam M. Gershowitz, The Race to the Top to Reduce Prosecutorial Misconduct, 89 FORDHAM L. REV.
1179, 1180 (2021) (“Until prosecutors have completed satisfactory training on topics such as Brady v. Maryland,
Batson v. Kentucky, and improper argument, judges should simply refuse to allow the prosecutors to handle cases in
their courtrooms.” (footnotes omitted)); Aliza Plener Cover, Hybrid Jury Strikes, 52 HARV. C.R.-C.L. L. REV. 357, 360
(2017) (proposing creation of a hybridized jury challenge that would “lie between successful cause challenges and
traditional peremptory strikes”); Burke, supra note 48, at 1473 (collecting proposals to change peremptory challenges
and calling on prosecutors to “voluntarily implement internal practices to avoid racialized jury selection”); Maureen A.
Howard, Taking the High Road: Why Prosecutors Should Voluntarily Waive Peremptory Challenges, 23 GEO. J. LEGAL
ETHICS 369, 370 (2010) (encouraging prosecutors to “consider a wholesale voluntary waiver of peremptory
challenges”); Caren Myers Morrison, Negotiating Peremptory Challenges, 104 J. CRIM. L. & CRIMINOLOGY 1 (2014)
(“I therefore propose that we jettison the inherently unstable framework of Batson and allow peremptory challenges
only on consent of both parties with the challenges waived if no agreement is reached.”).
125 See, e.g., Batson, 476 U.S. at 102-03 (Marshall J., concurring) (warning that “eliminating peremptory challenges
entirely” is the only way to “end the racial discrimination that peremptories inject into the jury-selection process”);
Wilkerson v. Texas, 493 U.S. 924, 928 (1989) (Marshall J., dissenting) (calling peremptory challenges “perhaps the
greatest embarrassment in the administration of our criminal justice system” and stating that “until peremptory
challenges are eliminated altogether, these challenges will inevitably be used to discriminate against racial minorities”);
Judge Ulysses Gene Thibodeaux, The Changing Face of Jury Selection: Batson and Its Practical Implications, 56 LA.
B.J. 408, 410 (2009) (“As long as peremptory challenges continue to be used,” the objective of enhancing
“representation of minorities and women on juries” will be “illusory because refined discriminators are adept at
concealing their motives through the use of rhetorical sophistication”); Morris B. Hoffman, Peremptory Challenges
Should Be Abolished, COLO. LAW. (Sept. 1998), at 51 (“After experiencing peremptory challenges firsthand for six
years as a trial judge in a state court of general jurisdiction, I now add my small voice to the chorus calling for
abolition.”); Kenneth J. Melilli, Batson in Practice: What We Have Learned About Batson and Peremptory Challenges,
71 NOTRE DAME L. REV. 447, 502 (1996) (advocating for abolition of the peremptory challenge, and arguing that it has
“outlived its usefulness”).
126 See, e.g., Anna Roberts, Asymmetry As Fairness: Reversing A Peremptory Trend, 92 WASH. U.L. REV. 1503, 1507
(2015) (“This Article ... recommends that asymmetry in the allocation of peremptory challenges—greater allocation of
peremptory challenges to the defense than to the prosecution—be restored in those jurisdictions where it has been
abandoned.”).
127 See, e.g., People v. Rhoades, 8 Cal. 5th 393, 469 (2019) (Liu, J., dissenting), reh’g denied (Jan. 29, 2020), cert.
denied sub nom. Rhoades v. California, 141 S. Ct. 659 (2020) (collecting cases and suggesting as an option, eliminating
Batson step 1, so that “whenever a defendant raises a Batson challenge to the prosecutor’s strike of a prospective juror
from a legally cognizable group, [t]he trial court will then require the state to come forward with reasonably specific
and clear race-neutral explanations for the strike” (internal quotation marks omitted)); Dorothy E. Roberts, Foreword:
Abolition Constitutionalism, 133 HARV. L. REV. 1, 103 (2019) (advocating for “changing the meaning of
discrimination” for Batson purposes “from racial bias to racist impact” to “stop the charade Batson generated in
allowing prosecutors to continue to empanel all-white juries based on pretextual race-neutral explanations”); Jeffrey
Bellin & Junichi P. Semitsu, Widening Batson’s Net to Ensnare More Than the Unapologetically Bigoted or Painfully
Unimaginative Attorney, 96 CORNELL L. REV. 1075, 1078 (2011) (“This Article proposes a two-part fix to what ails
Batson: (1) decouple Batson violations from any finding regarding the striking attorney’s subjective intent and (2)
foster a procedural mechanism that permits the immediate reseating of an improperly stricken juror without the juror
ever knowing that she was the subject of a strike.”)
128 Abbe Smith, “Nice Work If You Can Get It”: “Ethical” Jury Selection in Criminal Defense, 67 FORDHAM L. REV.
523, 531 (1998) (arguing “that it is unethical for a defense lawyer to disregard what is known about the influence of
race and sex on juror attitudes in order to comply with Batson v. Kentucky and its progeny.” (footnotes omitted)).
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State Peremptory Challenge Amendments
Many states guarantee peremptory challenges in their courts,129 and several have explored
changing them.130 For example, in August 2021, the Arizona Supreme Court issued an order
abolishing peremptory challenges through the amendment of its state rules of judicial
procedure.131 Other state courts have eliminated or modified step one of Batson, effectively
easing the initial burden on the party objecting to a peremptory challenge.132 At least one state has
focused on step two of Batson, requiring the party making the peremptory challenge to give a
reason that is not only race neutral but relevant to the case at hand.133
Another example is the Washington Supreme Court, which enacted General Rule 37, modifying
that state’s approach to the first and third steps of Batson.134 Under Washington’s revised
framework, at step one, a party—or the trial court—may object to a peremptory challenge by
citing to Rule 37.135 In other words, the party need not make out a prima facie case of
discrimination.136 Step two is generally similar to its federal analogue under Batson and requires
the responding party to justify the peremptory challenge.137 Rule 37 marks a significant departure
from Batson at step three, where it requires the trial court to deny the peremptory challenge if an
“objective observer could view race or ethnicity as a factor in the use of the peremptory
challenge.”138 Rule 37 defines objective observer as someone who is “aware that implicit,
institutional, and unconscious biases, in addition to purposeful discrimination, have resulted in
the unfair exclusion of potential jurors in Washington State.”139 In determining whether race or
ethnicity is a factor at step three, Rule 37 authorizes courts to consider the “totality of the
circumstances,” including the “number and types of questions posed to the prospective juror,”
“whether other prospective jurors provided similar answers but were not the subject of a
peremptory challenge by that party,” and the disproportionate use of peremptory challenges

129 See, e.g., 234 Pa. Code Rule 634; Colo. Rev. Stat. Ann. § 16-10-104; R.I. Super. R. Crim. P. 24(b); Md. Code Ann.,
Cts. & Jud. Proc. § 8-420; Okla. Stat. Ann. tit. 22, § 655; N.C. Gen. Stat. Ann. § 15A-1217; 725 Ill. Comp. Stat. Ann.
5/115-4(e); Haw. Rev. Stat. Ann. § 635-30.
130 This section presents select examples of state peremptory reform modifications for illustrative purposes. A
comprehensive review of peremptory challenge law and changes exceeds the scope of this report.
131 Order Amending Rules 18.4 and 18.5 of the Rules of Criminal Procedure, and Rule 47(e) of the Rules of Civil
Procedure, (Ariz. Aug. 30, 2021).
132 See, e.g., Melbourne v. State, 679 So. 2d 759, 764 (Fla. 1996) (“A party objecting to the other side’s use of a
peremptory challenge on racial grounds must: a) make a timely objection on that basis, b) show that the venireperson is
a member of a distinct racial group, and c) request that the court ask the striking party its reason for the strike.”
(footnotes omitted)); State v. Holloway, 209 Conn. 636, 646 (1989) (“[I]n all future cases in which the defendant
asserts a Batson claim, we deem it appropriate for the state to provide the court with a prima facie case response
consistent with the explanatory mandate of Batson.”); State v. Parker, 836 S.W.2d 930, 939 (Mo. 1992) (en banc)
(“First, the defendant must raise a Batson challenge with regard to one or more specific venirepersons struck by the
state and identify the cognizable racial group to which the venireperson or persons belong.”). Wash. Gen. R. 37(c)-(d)
(requiring party objecting to peremptory challenge to merely cite rule of procedure, at which point onus switches to
party exercising peremptory challenge to provide justification).
133 E.g., Ex parte Branch, 526 So. 2d 609, 623 (Ala. 1987) (explaining that at step 2 of Batson, “[t]he state then has the
burden of articulating a clear, specific, and legitimate reason for the challenge which relates to the particular case to be
tried, and which is nondiscriminatory.).
134 Wash. Gen. R. 37.
135 Id. § 37(c).
136 Id.
137 Id. § 37(d).
138 Id. § 37(e).
139 Id. § 37(f).
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against potential jurors of a particular race or ethnicity in “the present case or in past cases” by
the party seeking to use its peremptory challenge.140 Further, Rule 37 specifies that a number of
justifications for peremptory challenges are “presumptively invalid,” including that a potential
juror:
 had “prior contact with law enforcement officers;”
 expressed “distrust of law enforcement;”
 has a “close relationship with people who have been stopped, arrested, or
convicted of a crime;”
 lives in “a high-crime neighborhood;”
 had a “child outside of marriage;”
 receives “state benefits;” and
 is not a “native English speaker.”141
At least one other state, Connecticut, is exploring adopting a rule similar to Washington’s Rule
37,142 and in 2020 California enacted its own legislation governing the use of peremptory
challenges under its state rules of judicial procedure.143 Like Washington’s General Rule 37, the
California rule removes the requirement that the objecting party establish a prima facie case of
discrimination and changes the ultimate analysis for the trial court.144 Specifically, California’s
rule requires the trial court at step three to determine whether “there is a substantial likelihood
that an objectively reasonable person would view race, ethnicity, gender, gender identity, sexual
orientation, national origin, or religious affiliation, or perceived membership in any of those
groups, as a factor in the use of the peremptory challenge.”145 Discrimination need not be
“purposeful” under the rule,146 and it lists a number of non-exhaustive factors a trial court may
consider and several presumptively invalid justifications for peremptory strikes.147 Unlike
Washington’s General Rule 37, California’s list of factors courts may consider includes several
that would seemingly require the court to determine whether the potential juror, victim, objecting
party, and witnesses are in the same “perceived cognizable group.”148 At least one of those
factors, which permits a court to consider whether “the objecting party is a member of the same
perceived cognizable group as the challenged juror,”149 may potentially raise questions under

140 Id. § 37(g).
141 Id. § 37(h).
142 See, e.g., Connecticut Task Force, supra note 19, at 16-18.
143 Press Release, Office of Governor Gavin Newsom, Governor Newsom Signs Landmark Legislation to Advance
Racial Justice and California’s Fight Against Systemic Racism & Bias in Our Legal System (Sep. 30, 2020),
https://www.gov.ca.gov/2020/09/30/governor-newsom-signs-landmark-legislation-to-advance-racial-justice-and-
californias-fight-against-systemic-racism-bias-in-our-legal-system/. Although enacted in 2020, California’s rule was
effective in state criminal trials starting in 2022, and will be effective in state civil trials starting in 2026. Cal. Civ. Proc.
Code § 231.7(k); see also Jim Frederick and Kate M. Wittlake, New Jury Selection Procedure in California: Is This the
End of Peremptory Challenges? Is This the End of Batson?, NAT’L L. REV. (Nov. 4, 2021),
https://www.natlawreview.com/article/new-jury-selection-procedure-california-end-peremptory-challenges-end-batson.
144 Cal. Civ. Proc. Code § 231.7.
145 Id. § 231.7(d)(1).
146 Id.
147 Id. § 231.7(d)-(g).
148 Id. § 231.7(d)(3)(A)(i)-(iii).
149 Id. § 231.7(d)(3)(A)(i).
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Supreme Court precedent holding that the party objecting to a peremptory challenge need not be
of the same race as the prospective juror.150
Federal Peremptory Challenge Legislation and Congressional
Considerations
At the federal level, there does not appear to be any recent proposed legislation to modify
peremptory challenges.151 One notable attempt to modify peremptory challenges occurred in
1977, when the Supreme Court proposed amending Rule 24 of the Federal Rules of Criminal
Procedure to reduce the number of peremptory challenges for both prosecutors and defendants
and to offer equal numbers of peremptory challenges to each side in non-capital felonies.152
According to an accompanying report by the House Judiciary Committee, the proposed
amendment drew “vigorous criticism.”153 In hearings before the House Judiciary Committee’s
Subcommittee on Criminal Justice, opponents of the amendment testified that, among other
things, reducing and equalizing peremptory challenges would “not enable the defendant to
achieve a jury free of bias against the accused,”154 would “unnecessarily advantage the
prosecution, which in most cases has more knowledge about the past behavior of jurors,”155 and
would diverge from the historical understanding that peremptory challenges were “for the
accused, not the Government.”156 Congress rejected the proposed amendments to Rule 24.157
Congress retains significant authority over federal courts and peremptory challenges at the federal
level.158 Congress may amend the federal rules of procedure and related statutes to modify the

150 Flowers v. Mississippi, 139 S. Ct. 2228, 2243 (2019); accord Georgia v. McCollum, 505 U.S. 42, 49 (1992)
(“Regardless of who invokes the discriminatory challenge, there can be no doubt that the harm is the same—in all
cases, the juror is subjected to open and public racial discrimination.”).
151 But see, e.g., Terrorist Death Penalty Act of 2007, H.R. 1914, 110th Cong. (2007) (proposing amendment to Rule 24
of the Federal Rules of Criminal Procedure to allow trial courts to impanel additional jurors and increase the number of
peremptory challenges). For a discussion of peremptory amendment efforts in Congress in the 1970s and 1990s, see
Savanna R. Leak, Peremptory Challenges: Preserving an Unequal Allocation and the Potential Promise of Progressive
Prosecution, 111 J. CRIM. L. & CRIMINOLOGY 273, 287-88 (2020).
152 H.R. REP. NO. 95-195, at 48-49, 54 (1977). For background on the roles of Congress and the Supreme Court in
amending the Federal Rules of Criminal Procedure, see CRS In Focus IF11557, Congress, the Judiciary, and Civil and
Criminal Procedure, by Joanna R. Lampe.
153 H.R. REP. NO. 95-195, at 54 (1977); but see Proposed Amendments to the Federal Rules of Criminal Procedure:
Hearing Before the Subcomm. on Criminal Justice of the H. Comm. on the Judiciary, 95th Cong. 57 (1977) (hereinafter
“Hearing”) (testimony of Richard J. Thornburgh, Acting Deputy Att’y Gen.) (testifying in favor of amendment to Rule
24 and stating that “[e]qualization of the number of peremptory challenges available as a matter of right to both sides in
a criminal case is in accordance with the basic purpose of the peremptory challenge.”)
154 Hearing, supra note footnote 153, at 3 (Testimony of Jay Schulman, Coordinator, Nat. Jury Project).
155 Id. at 114 (Testimony of David Epstein, Criminal Justice Section, Am. Bar Ass’n).
156 Id. at 129 (Testimony of John Cleary, Exec. Dir., Fed. Defenders of San Diego, Inc.).
157 See P.L. 95-78, 91 Stat 319 (1977) (“The amendment proposed by the Supreme Court to rule 24 of such Rules of
Criminal Procedure is disapproved and shall not take effect.”).
158 See, e.g., United States v. Martinez-Salazar, 528 U.S. 304, 311 (2000) (explaining that peremptory challenges are
“not of federal constitutional dimension” and that “[t]here is nothing in the Constitution of the United States which
requires the Congress to grant peremptory challenges.” (quoting Stilson v. United States, 250 U.S. 583, 586 (1919));
Hanna v. Plumer, 380 U.S. 460, 472 (1965) (“For the constitutional provision for a federal court system (augmented by
the Necessary and Proper Clause) carries with it congressional power to make rules governing the practice and pleading
in those courts, which in turn includes a power to regulate matters which, though falling within the uncertain area
between substance and procedure, are rationally capable of classification as either.”). Congressional attempts to change
peremptory challenge laws at the state level would raise possible federalism concerns that exceed the scope of this
report. But see generally CRS Report R45323, Federalism-Based Limitations on Congressional Power: An Overview,
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numbers of, and parameters for, peremptory challenges.159 For example, Congress could increase,
reduce, reallocate, or abolish peremptory challenges in federal courts.160 Alternatively, Congress
could seek to codify a reworked Batson framework for federal proceedings so long as it did not
reduce the equal protection rights Batson and subsequent cases announced.161 Congress could also
consider expanding the list of classifications that may not be used to make a peremptory
challenge (for example, to expressly include sexual orientation, gender identity, or other
characteristics where Batson’s reach is uncertain). Other options Congress could explore include
eliminating the initial requirement that the objecting party make out a prima facie case of
discrimination, changing the evidentiary burdens, or listing presumptively invalid justifications
for peremptory challenges such as those in Washington’s Rule 37.
Many of these changes would inherently involve trade-offs given the countervailing interests at
stake. On the one hand, the Supreme Court has cited peremptory challenges as a valuable tool in
securing the right to an impartial jury, which is of considerable benefit to the accused.162 On the
other hand, some have argued that, despite Batson, peremptory challenges impinge on the rights
of the parties and potential jurors to be free from purposeful racial discrimination in jury
selection.163 Modifying the legal regime governing peremptory challenges would presumably
change the balance between these rights.164 For example, as discussed, one change adopted by
some states in an effort to reduce discrimination in jury selection is to narrow the circumstances
in which peremptory challenges are available.165 This could take the form of protecting additional
classifications of individuals from discriminatory challenges, prohibiting challenges based on
implicit rather than purposeful discrimination, or listing presumptively invalid justifications,
among other things.166 Other similar efforts have involved making it easier to object to
peremptory challenges or reducing the evidentiary burdens necessary to show discrimination.167

coordinated by Andrew Nolan and Kevin M. Lewis.
159 As discussed above, at the federal level, peremptory challenges are governed by 28 U.S.C. § 1870, FED. R. CRIM. P.
24(b), (c)(4), and FED. R. CIV. P. 47(b).
160 For analysis of Congressional considerations relevant to amending federal rules of judicial procedure, see generally
CRS In Focus IF11557, Congress, the Judiciary, and Civil and Criminal Procedure, by Joanna R. Lampe.
161 Dickerson v. United States, 530 U.S. 428, 437 (2000) (“Congress may not legislatively supersede our decisions
interpreting and applying the Constitution”).
162 See supra notes 28-31 and accompanying text.
163 See supra notes 32-34, 123-127 and accompanying text.
164 See, e.g., Miller-El II, 545 U.S. 231, 273 (2005) (Breyer J., concurring) (acknowledging the historical value of
peremptory challenges to the accused, but suggesting reconsideration of peremptory challenges in light of
countervailing concerns about their potential discriminatory use).
165 See supra “State Peremptory Challenge Amendments.”
166 Id.
167 Id.
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One potential consequence of such efforts might be to blur the distinction between challenges for
cause and peremptory challenges. If parties exercising peremptory challenges have to provide
justification to the court more often,168 and fewer justifications suffice,169 then peremptory
challenges may function less like the traditional peremptory challenge available for “any
reason—no questions asked”170 and more like a challenge for cause, available only in limited
circumstances when authorized by a court.171 Relatedly, it is possible that changes to peremptory
challenges that make them easier to oppose and harder to defend would curtail their overall use.
The extent to which such outcomes occur would depend on the specifics of a given proposal, and
proponents might argue that any downsides are necessary costs of reducing discrimination in jury
selection.172 Regardless, legislating to change peremptory challenges would likely require
modifying the very feature that affords peremptory challenges value to the accused and other
parties but simultaneously endows them with the potential for discriminatory abuses—
discretion.173

Author Information

Peter G. Berris

Legislative Attorney

168 For instance, both the Washington and California rules eliminate the requirement that a party make out an initial
prima facie case of discrimination and require only an initial objection, which then shifts the burden of justification to
the party seeking to exercise its peremptory challenge. Id.
169 Arguably, rules like Washington’s and California’s restrict the range of permissible circumstances for exercising
peremptory challenges by, among other things, expanding the classifications of individuals protected from
discrimination, listing presumptively invalid justifications for peremptory challenges, reducing the burden on the party
objecting to a challenge, changing the relevant determination from one of subjective bias to one of objective bias, and
listing other factors for a court to consider as evidence of a prohibited discriminatory challenge. See supra “State
Peremptory Challenge Amendments.”
170 Flowers v. Mississippi, 139 S. Ct. 2228, 2238 (2019); see also Swain v. Alabama, 380 U.S. 202, 220
(1965), overruled by Batson v. Kentucky, 476 U.S. 79 (1986) (“[T]he essential nature of the peremptory challenge is
that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control.”).
171 See supra notes 2-7 and accompanying text.
172 See supra notes 123-127 and accompanying text; see also Batson, 476 U.S. at 108 (Marshall, J. concurring) (“The
potential for racial prejudice, further, inheres in the defendant’s challenge as well. If the prosecutor’s peremptory
challenge could be eliminated only at the cost of eliminating the defendant’s challenge as well, I do not think that
would be too great a price to pay.”).
173 See Swain, 380 U.S. at 220 (“While challenges for cause permit rejection of jurors on a narrowly specified, provable
and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less
easily designated or demonstrable.”); Frazier v. United States, 335 U.S. 497, 505 (1948) (“The right of peremptory
challenge is given, of course, to be exercised in the party’s sole discretion.”).
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Batson v. Kentucky and Federal Peremptory Challenge Law

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