The recent Supreme Court decision of Georgia v. McCollum marked the culmination of a series of cases dealing with racially discriminatory peremptory challenges in jury selection. In holding that the equal protection clause of the Fourteenth Amendment requires a criminal defendant to articulate a racially neutral explanation for peremptory challenges before striking jury members of a different race, the Court has significantly undermined the role of the peremptory challenge in American jurisprudence. Beginning with Batson v. Kentucky six years ago, the Court has progressively ruled that under no circumstance will a party on either side of a criminal trial or a civil lawsuit be able to utilize one of its peremptory challenges to strike a venireperson on account of that person's race.
Under the Sixth Amendment, the criminally accused is assured a trial by an impartial jury of twelve persons who must unanimously agree on a verdict. This same right has been imputed to the civil litigant through the Seventh Amendment's assurance that the right to a jury trial will be preserved in suits at common law. One method our legal system utilizes to ensure the selection of fair and impartial jurors is allowing the parties to remove individuals from the jury panel who may be unfavorable to their case. The two devices for effectuating such a removal are the challenge for cause and the peremptory challenge. ...
This Comment first explores the history of the peremptory challenge and its important functions in today's judicial system. Next, it examines those cases dealing with racially discriminatory challenges prior to Batson. The Comment then analyzes Batson and its progeny, followed by a detailed scrutiny of the decision in McCollum. It concludes with an analysis of the impact of the Batson reasoning on the future of the peremptory challenge.
Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L. Rev. 579.