Preserving the Peremptory Challenge
The peremptory challenge derives its significance from the common law and is considered an essential element of a trial by an impartial jury. Although the Constitution does not guarantee the right to the peremptory challenge, it has been termed "one of the most important of the rights secured to the accused. Historically, it has allowed defendants to eliminate prospective jurors whom they suspect to be biased against them. Blackstone wrote that the challenge has two traditional purposes. First, it allows defendants to remove any jurors they intuitively dislike, thus insuring they have "a good opinion of the jury, the want of which might totally disconcert him." Second, it permits the exclusion of jurors whom defendants may have alienated through voir dire.
Consequently, peremptory challenges are essential to the selection of an impartial jury and should not be abolished or subjected to judicial review. Neither random selection nor challenges for cause are adequate to detect and eliminate the subconscious biases that destroy impartiality. The peremptory better performs this task, but it cannot do so effectively if the motives for its exercise are subject to judicial control in any particular case. Nonethless, peremptory challenges will probably not survive in any form that permits them to be used in a purely arbitrary manner. The strongest argument against the use of peremptories rises in cases where the prosecutor attempts to remove jurors because of their membership in a certain group.
Specifically, the prosecutorial use of peremptories to remove black jurors in cases where the defendant is black has raised questions about the challenge's affect on the defendant's right to an impartial jury in violation of the Equal Protection Clause. The basic tenet of the peremptory challenge is that it allows an arbitrary challenge to a certain number of jurors without showing any c...