Peremptory Challenge

A peremptory challenge is a way of removing a potential juror without having to explain why. Each side gets a limited number of these challenges in jury selection, and they are typically used to remove jurors the lawyer thinks might be biased — even if there is no specific evidence of bias. The right to use peremptory challenges is real, but it is not unlimited.

How Peremptory Challenges Work in California

California peremptory challenges are governed by Code of Civil Procedure §§ 231 and 231.7. The number of challenges depends on the case: in misdemeanor cases, each side gets six; in felony cases not punishable by death or life, each side gets ten; in capital and life cases, each side gets twenty. Challenges are exercised in alternating order during the jury selection process after the for-cause challenges have been resolved.

The constitutional limits matter enormously. Under Batson v. Kentucky and California’s adoption in People v. Wheeler, peremptory challenges cannot be used to remove jurors based on race, ethnicity, gender, or other protected characteristics. California has gone further with the recently enacted Code of Civil Procedure § 231.7, which creates a statutory framework presuming bias from many traditionally accepted “race-neutral” reasons — like a juror’s neighborhood, a prior negative police interaction, or limited English proficiency. The party making the challenge must show the reason was not based on bias and was not a presumptively invalid reason.

Why Peremptory Challenges Matter to Your Defense

How peremptory challenges are used can decide a case. A skilled criminal defense attorney enters voir dire with a clear theory of which jurors will be receptive to the defense theme and which will not, and uses peremptories deliberately to shape the final panel. Wasting challenges or missing the chance to remove a clearly unfavorable juror can be costly, particularly in close cases.

The new § 231.7 framework also creates real opportunities. When the prosecution strikes jurors who appear to fit a protected category, defense attorneys can object under § 231.7 and force the prosecution to justify the strike. Successful objections can result in the juror being seated or, in serious cases, a new venire being summoned. Litigating these issues requires preparation and a careful record, but the protections are some of the strongest in the country.

Related Legal Terms

Peremptory challenges are part of the broader jury selection and voir dire process and operate alongside for-cause challenges and the rules surrounding the eventual jury verdict. These tools shape every trial in our criminal defense and DUI defense practice.

Facing Charges Where This Applies?

If your case is heading to trial, who actually sits on the jury depends entirely on how challenges are used in voir dire — and that work cannot be improvised. Attorney Chris Nalchadjian offers free, confidential consultations 24/7. Call KN Law Firm at (888) 950-0011.