the
peremptory challenge turns out in large part to have operated as an
"[A]s the State concedes, nothing in the plain language of Rule 26.02 provides that a party forfeits the right to challenge the district court's for-cause ruling by not using an available
peremptory challenge to remove the juror.
Better, from your perspective, that prosecutors should use a
peremptory challenge than a challenge for cause, since they have an unlimited number of the latter but very few of the former.
Why Religion-Based
Peremptory Challenges Withstand Constitutional Scrutiny, 32 STETSON L.
While the United States continues to foster the practice, English courts have abandoned the
peremptory challenge. (34) The English have done away with
peremptory challenges for a number of reasons, but time showed how infrequently these challenges were used.
While scholarship about
peremptory challenges is extensive, data about how parties exercise these challenges in trials is limited.
at 267 (Breyer, J., concurring) ("The complexity of this process reflects the difficulty of finding a legal test that will objectively measure the inherently subjective reasons that underlie use of a
peremptory challenge."); id.
Batson and its progeny also require a three-step procedure to evaluate the discriminatory use of
peremptory challenges. First, the moving party must establish that a peremptory strike was based on purposeful discrimination.
The Supreme Court faced an important ideological choice when it banned the racial use of
peremptory challenges in Batson v.
Because
peremptory challenges were not exclusively under the control of prosecutors, but were also a tactical tool used by counsel for the accused, defense counsel's exclusion of some minority jurors essentially clouded the evidence and prevented the Court from concluding that exclusion of blacks from petit jury service could be exclusively attributed to state actors.
peremptory challenge, there is inadequate evidence for an appellate
400, 405 (1955) with emphasis added) ("The accused should be allowed considerable latitude in examining members so as to be in a position to intelligently and wisely exercise a challenge for cause or a
peremptory challenge."); MCM, supra note 4, R.C.M.