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PEREMPTORY CHALLENGES

Peremptory challenges are challenges, specific in number, which are given to each side to be exercised without regard to reason or explanation.

FEDERAL:

FED. R. CRIM. P. Rule 24(b) provides:

  • Defendants:

10 peremptory challenges jointly exercised

  • Government:

6 peremptory challenges.

However, the Court “may allow the Defendant additional peremptory challenges and permit them to be exercised separately”. FED. R. CRIM. P. Rule 24(b).

SeeUS v. Banks, 687 F.2d 967 (7th Cir. 1982), cert. denied, 459 US 1212 (1983) (stating that the granting or denial of extra peremptory challenges within judge’s discretion).

Also, counsel may request that peremptory challenges be made outside the presence of the panel members.

US v. Severino, 800 F.2d 42 (2d Cir. 1986) (noting trial judge’s denial of defense counsel’s request to exercise peremptory challenges outside presence of prospective jurors was reversible error).

Where numerous defendants have been jointly charged for “mass” trial, with contradictory and mutually exclusive defenses, additional, separately exercised challenges should be allowed.

See               US v. Mitchell, 384 F. Supp. 564 (Dist. Colo. 1974);

Estes v. US, 355 F.2d 609 (5th Cir. 1964), cert. denied, 379

U.S. 964 (1964);

Tasby v. US, 451 F.2d 394 (8th Cir. 1971), cert. denied, 406

U.S. 922 (1972).

Contra         US v. Banks, 687 F.2d 967 (7th Cir. 1982), cert. denied,459 US 1212 (1983) (holding multiple defendants have no right to extra challenges).

Furthermore, any additional challenges afforded the Government should preserve the proportional advantage held by the defense.

US v. Scott, 555 F.2d 522 (5th Cir.), cert. denied, 434 US 985 (1977).

And, Government may not enlarge list of venire persons in order to dilute affect of peremptory strike.

US v. Ricks, 802 F.2d 731 (C.D. Md. 1986).

In US v. Huey, the Fifth Circuit found that the Government failed to elicit race- neutral explanation for peremptory challenges. The reason the Government articulated stated that Afro-Americans B as a class B would be biased and should not serve after hearing racial slurs contained on the tapes. The Fifth Circuit stated, A[t]his reason was premised only on the race of these jurors; no mention was ever made of any nonracial characteristic of any individual juror. US v. Huey, 76 F.3d 638 (5th Cir. 1996).

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