California Peremptory Challenge – Rules and Limits

Want to remove a biased juror without stating a reason? California law allows peremptory challenges, but strict rules limit them. This article explains the exact number of challenges, anti-discrimination limits, and practical steps to use them correctly. You will learn how to avoid costly mistakes and protect your client’s right to a fair trial.

California Silent Strike Basics

A silent strike in California lets a lawyer remove a potential juror without giving a reason. It is a type of peremptory challenge used during jury selection to help build a fair panel.

Most people wonder how many silent strikes are allowed. In a standard civil case, each side gets six peremptory challenges that can be used as silent strikes. Criminal cases give more depending on the charge, so the exact limit changes with the case type.

Rules and Limits to Know

Even though a silent strike hides the reason, lawyers cannot use it to discriminate based on race, gender, or other protected traits. Always count your strikes so you do not run out before the jury is set.

California law blocks silent strikes that remove jurors only because of their identity.

Keep these basic limits in mind when planning your silent strikes:

• You must use the strike before the juror is sworn in.
• The number of strikes depends on the case, often six in civil trials.
• You cannot use a silent strike to bias the jury by race or sex.

The table below shows typical peremptory challenge counts that include silent strikes:

For example, in a civil dispute you can silently strike up to six people. This lets both sides shape the jury quickly without arguing over every single removal.

Statutory Grounds for Use

California gives lawyers the right to use peremptory challenges during jury selection. This right comes straight from state laws that say how many challenges each side gets and when they can be used.

The main rule is simple: you can ask to remove a juror without giving a reason, but you must stay inside the limits set by the book. For example, in a basic civil trial, each side usually gets six peremptory challenges under Code of Civil Procedure section 231.

When the Law Lets You Strike Jurors

State statutes also tell you the exact moment you may use a peremptory challenge. You must do it before the juror is sworn in. If you wait too long, the chance is gone. Always watch the clock during voir dire.

Here is a quick look at common challenge counts in California courts:

These numbers come from the state codes and show the statutory grounds for use. If you try to use more than the limit, the judge will say no.

California law forbids striking a juror only because of race, gender, or ethnicity.

This rule works with the statutes to keep jury selection fair. Lawyers should write down why they used each challenge so they can prove it was not based on bias.

Limit on Challenge Numbers

When you go to jury selection in California, you get a set number of peremptory challenges. These let you remove a juror without giving a reason. The limit depends on the type of case and how many jurors sit.

For most civil trials with 12 jurors, each side gets 6 peremptory challenges. If the jury has 8 people, that number drops to 4. Criminal cases follow different rules based on the number of defendants.

California Code of Civil Procedure Section 231 sets the basic challenge limits for civil cases.

Look at the table below to see common limits:

Save some for later if a juror seems biased during questioning. Waste them early and you may stuck with a juror you do not trust.

Why the Limit Matters for Your Case

The court will not give you extra strikes beyond the law. If you try to remove more jurors, the judge will deny it. Plan your moves with your lawyer so you use each challenge on the right person.

For example, in a small civil dispute, you only have 4 strikes with an 8-person jury. That means you must pick the most questionable jurors to challenge. Data shows parties who plan ahead get fairer juries.

Batson Rule Against Bias in California Peremptory Challenges

The Batson rule is a fair play rule for jury selection. It says lawyers cannot use peremptory challenges to remove jurors based on race, color, or sex. In California, this rule works with state law to keep jury pools mixed and fair.

A peremptory challenge lets a lawyer drop a juror without stating a reason. The Batson rule stops bias in this process. If one side thinks the other is using challenges in a biased way, they can speak up and ask the judge to check.

How to Raise a Batson Challenge

In California, a Batson challenge follows three clear steps. First, the objecting lawyer shows facts that suggest bias. Next, the other lawyer must give a neutral reason for the challenge. Last, the judge decides if the reason is real or just a cover for bias.

1. Point out the pattern of strikes against a group.
2. Ask the court to require a reason.
3. Judge reviews the reason and rules.

Real Example of Batson in Action

Imagine a case where a lawyer removes all three Black jurors without a clear cause. The other side can flag this as bias. California courts look closely at such patterns to protect fair trials.

The law forbids removing jurors only because of their race or gender.

Data from California courts show that Batson motions happen in about 1 of every 20 felony trials. This tool helps catch bias early.

California Limits on Peremptory Strikes

California gives a set number of peremptory challenges based on case type. The Batson rule cuts across these limits by banning biased strikes. See the table below for common counts.

Lawyers must use their strikes wisely. A biased strike can be overturned and cause a new trial.

Proper Challenge Procedure

In California, a peremptory challenge lets a party remove a potential juror without stating a cause. The key is to follow the right steps at the right time. If you wait too long, the court will turn down your request, even if you had a good reason to want the juror gone.

Usually, the challenge must be made right after the court calls the juror and before they take the oath. Lawyers can say the challenge out loud or file a short written note. Each side gets a set number of tries based on the case type. For example, in a civil trial with 12 jurors, each side often gets 6 peremptory challenges under California Code of Civil Procedure section 231.

A peremptory challenge must be made before the juror is sworn to serve.

Easy Steps to Make the Challenge

Follow this simple list to keep your challenge valid. First, watch the jury panel closely as names are called. Second, decide quickly if you want to remove that person. Third, tell the judge clearly that you use a peremptory challenge. Do not wait until after the juror is seated and sworn.

• Listen for the juror’s name from the clerk.
• Say “I exercise a peremptory challenge” before the oath.
• Track your used challenges on a sheet.
• Check local rules for any written form need.

California sets limits so trials stay fair. The table below shows common challenge counts for different cases. Note that felony criminal cases give more challenges to each side.

If you use all your challenges early, you may be stuck with a juror you do not like later. Plan with your team and save some if the pool looks risky. A clear record helps if the other side claims you used a challenge to discriminate, which is not allowed under Batson rules.

Penalties for Improper Use

When a peremptory challenge in California is exercised on a prohibited basis such as race, color, religion, sex, sexual orientation, or national origin, the trial court must sustain a Batson/Wheeler objection and deny the discriminatory strike. The excluded juror may be seated by the court, or in cases of systematic abuse the judge can declare a mistrial and restart jury selection at significant cost to the parties.

Attorneys who engage in repeated improper use of peremptory challenges may face contempt sanctions, monetary fines, or referral to the State Bar for disciplinary proceedings. On appeal, convictions obtained through unlawful strikes are routinely reversed, triggering retrial and exposing the offending side to professional penalties and loss of credibility.

References

1. California Courts
2. Justia
3. Cornell Legal Information Institute