12.14 - B. Challenging The Peremptory Challenge

JurisdictionNew York

B. Challenging the Peremptory Challenge

A peremptory challenge is defined as an objection to a prospective juror for which no reason need be assigned. Upon any peremptory challenge, the court must exclude the person challenged for service. There is a multi-step process in determining whether a peremptory challenge is used to exclude a juror on the basis of his race. The moving party must make a prima facie showing of exclusion of the juror based on race. The burden of persuasion then shifts to the party who exercised the peremptory challenge to offer a facially neutral explanation for his peremptory challenge. The burden of establishing purposeful discrimination based on race shifts back to the party who initially asserted it. The court must then determine whether the reasons for the peremptory challenge are pretextual.1918

The exclusion of any juror based solely on race, gender or ethnicity, where timely objection is voiced by either party, requires the court to exercise its discretion to allow or disallow such peremptory challenge, depending upon the acceptance or rejection of the explanation offered for the challenge. The U.S. Supreme Court, in reviewing a paternity and child support trial from Alabama in which the state used nine of its 10 peremptory challenges to remove male jurors, with the result that an all-female jury was impaneled, extended the principle that gender-based peremptory challenges violate the equal protection rights of the accused. Jurors are not to be measured by an unconstitutional standard, and to do so violates the juror’s state constitutional civil right to be a juror. The purpose of the rule is to eliminate discrimination, not minimize it. If the court is not satisfied that the challenges are being exercised in a non-discriminatory manner, it must deny the challenge and seat the juror.1919 A “demeanor-based” explanation for a peremptory challenge need not be observed or recalled by the presiding judge.1920

Each counsel is allowed only a certain number of peremptory challenges. Where the defendant is charged with only misdemeanor charges, each counsel is allowed only three peremptory challenges. If two or more defendants are tried jointly, the number of challenges is not expanded, and any of the three peremptory challenges can be exercised only if a majority of the defense attorneys agree to each challenge.1921 Where the defendant is being tried on a felony indictment, the number of peremptory challenges allowed the prosecutor...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT