The peremptory challenge,(1) once defined by the U.S. Supreme Court as a challenge "exercised without a reason stated, without inquiry and without being subject to the court's control,"(2) no longer exists in the American judicial system.(3) In Batson v. Kentucky(4) and its progeny,(5) the Supreme Court ignored common sense and bastardized the English language by redefining the peremptory challenge to represent its antithesis.(6) This jurisprudence, which retains the peremptory challenge in name only, has forced trial court judges to traverse a difficult path through the complexities of equal protection claims, the uniqueness of third party standing, the dilemma of whose rights to protect, and the opaque pretext behind parties' alleged neutral use of the peremptory challenge.
These knotty concerns most recently surfaced in a split between the Fifth and Seventh Circuits.(7) The split resulted from the unconstitutional use of peremptory challenges in United States v. Boyd(8) and United States v. Huey.(9) The defendants in both cases used their peremptory challenges to strike prospective jurors solely because of the prospective jurors' race.(10) The courts differed, however, as to whether the defendants should be granted new trials due to their unconstitutional employment of the peremptory challenges.(11) This circuit split stands as a testament to the Supreme Court's misguided jurisprudence that made the long-standing peremptory challenge irrational and functionally obsolete.(12)
This Note will address the Supreme Court's whittling away of the peremptory challenge and the confusion that has resulted from its opinions. The first portion of the Note will detail the history of the peremptory challenge,(13) devoting particular attention to the Court's treatment of the peremptory, from its opinion in Swain v. Alabama,(14) to its most recent cases decided in the wake of J.E.B. v. Alabama ex rel. T.B.(15) The second part of this Note will explain the facts and holdings in United States v. Huey and United States v. Boyd and detail to what extent the cases may be factually distinguishable.(16) The Fifth and Seventh Circuits' holdings will be held as indicia of a greater confusion stemming from Supreme Court jurisprudence. This Note will then predict the probable outcome should the Supreme Court decide to resolve the issue raised by the circuit split.(17) The third part of this Note will analyze the options available to the Supreme Court in resolving the problems many critics see in the Court's current treatment of the peremptory challenge.(18) Finally, this Note will conclude by presenting the most logical, though admittedly unlikely, course for the future of the peremptory challenge.(19)
HISTORY OF THE PEREMPTORY CHALLENGE
The Peremptory Challenge v. the "For Cause" Challenge
To understand the history of the peremptory challenge, it must first be distinguished from its counterpart, the "for cause" challenge. Traditionally, the peremptory challenge permitted a party to strike a member of the venire(20) without needing to explain to the court the reasoning for the strike.(21) In contrast, the for cause challenge demands that a party give a "narrowly specified, provable and legally cognizable basis of partiality" for the strike.(22) Litigants often ground for cause challenges on a prospective juror's familial or social relationship to one of the parties, failure to meet statutory qualifications for jury duty, or other specific evidence of bias.(23)
The peremptory and for cause challenges also differ in the number allowed by the courts. A party may exercise an unlimited number of for cause challenges.(24) Peremptory challenges, however, are limited to the number specified by statute in the jurisdiction.(25) The federal courts limit a litigant to three peremptory challenges in civil cases,(26) while allowing the government six peremptory challenges and the defendant ten peremptory challenges in felony cases. …