The jury trial is a central pillar throughout American jurisprudence. However, picking the jury is often half the battle. Attorneys take care to select jurors who are open and willing to hear the law and evidence of a case and come to a decision accordingly. For that reason, before trial begins, attorneys for plaintiffs and defendants go through the voir dire process, picking, eliminating, and finalizing the body of jurors who hold the fate of the case in their hands.
Under the Federal Rules of Civil Procedure, each party to civil action has the right to use three peremptory challenges during voir dire to exclude potential jurors from jury selection. Fed. R. Civ. P. 47(b). The U.S. Supreme Court decision in Swain v. Alabama best illustrates the importance and controversial nature of the peremptory strike. Swain v. Alabama, 380 U.S. 202, 212–13 (1965). There, the Court recognized that the peremptory strike “is one exercised without a reason stated, without inquiry and without being subjected to the court’s control.” By its very nature, the peremptory challenge requires attorneys to make subjective assessments of potential jurors based on factors including but not limited to gender, ethnicity, age, and employment. While there is no guarantee that the perceptions attorneys draw on during voir dire are wholly accurate, the fact remains that attorneys must make these subjective assessments to exercise peremptory strikes.