Peremptory Challenges in California: Rules, Limits, and Section 231.7
A peremptory challenge lets a lawyer remove a prospective juror without giving a traditional, case-specific reason. In California, that discretion has important limits: state law prohibits using a peremptory challenge based on a prospective juror’s race, ethnicity, or gender. Knowing how challenges work, how many are permitted, and what happens when an objection is raised can make jury selection easier to follow.
What Is a Peremptory Challenge?
During jury selection, the court and attorneys question prospective jurors in a process known as voir dire. A lawyer may ask the judge to excuse a juror for cause—for example, because the person cannot be impartial. The judge decides whether the legal basis is sufficient. In contrast, a peremptory challenge generally allows a party to excuse a juror without first proving cause.
Peremptory challenges are not unlimited, and they are not a license to discriminate. California law restricts their number and prohibits their use on specified discriminatory grounds. A party may also object if it believes the opposing side is using a challenge unlawfully.
How Many Peremptory Challenges Are Allowed in California?
The number depends on the type of case. California Code of Civil Procedure section 231 sets the basic limits. The court may also have authority to grant additional challenges in certain circumstances, such as a complex case or a trial involving multiple parties. The precise allocation can depend on the case and the court’s orders.
| Type of proceeding | General number of peremptory challenges |
|---|---|
| Civil case | Six for each side |
| Felony case | Ten for each side |
| Misdemeanor case | Six for each side |
| Case in which the death penalty may be imposed | Twenty for each side |
These are general statutory figures, not a substitute for checking the rules that apply to a particular trial. When several parties appear on the same side, the judge may determine how challenges are allocated. Special procedures may apply in cases with multiple defendants, multiple parties, or additional challenges authorized by the court.
A peremptory challenge is normally used during jury selection, before the jury is sworn. It differs from a challenge for cause, which is based on a legally recognized concern about a prospective juror’s ability to serve fairly. Challenges for cause are decided by the judge and are not subject to the same numerical limit as peremptory challenges.
California’s Ban on Discriminatory Peremptory Challenges
California uses two related protections against discriminatory jury selection. The constitutional framework is commonly associated with People v. Wheeler in California and Batson v. Kentucky in the U.S. Supreme Court. In addition, Code of Civil Procedure section 231.7 establishes a state statutory procedure and prohibits peremptory challenges based on a prospective juror’s race, ethnicity, or gender.
Section 231.7 took effect on January 1, 2022. It applies in California criminal and civil jury selection, including jury selection in cases involving minors. The statute was designed to address discriminatory effects as well as intentional discrimination. Under its standard, a challenge may be prohibited when a reasonable person aware of the circumstances would view race, ethnicity, or gender as a factor in the use of the challenge. The challenger’s intent to discriminate does not have to be proved.
The practical point: a lawyer cannot defend a challenge simply by saying it was not motivated by bias if the statutory standard is met. The court must examine the reasons offered and the surrounding circumstances under section 231.7.
Reasons That Can Raise a Section 231.7 Concern
The statute identifies reasons that may be associated with improper reliance on protected characteristics. Some explanations are presumptively invalid under the law, subject to its stated conditions and exceptions. The court considers the reason in context; a label or generalization is not automatically persuasive just because it sounds neutral.
- Express or implicit bias: statements or conduct suggesting a juror is unsuitable because of race, ethnicity, or gender.
- Demeanor: claims that a juror seemed inattentive, uncomfortable, or uncooperative. The statute places particular limits on relying on demeanor, including requirements related to the court’s own observations.
- Distrust of law enforcement: a stated concern about a juror’s views of police, especially when the concern is not applied consistently to comparable jurors.
- Language ability: claims about a juror’s proficiency in English, subject to legal requirements and the circumstances of the proceeding.
- Neighborhood or community ties: assumptions based on where a juror lives or the community with which the juror is associated.
- Prior jury service: reliance on a juror’s earlier service or experience, particularly where similar experience is treated differently for other prospective jurors.
These examples are not a complete checklist of lawful or unlawful reasons. A reason can appear neutral in isolation yet raise concern when it is inconsistently applied, unsupported by the record, or closely associated with a protected characteristic in the circumstances of the case. Conversely, the court must assess the facts rather than assume that every challenge involving one of these topics is unlawful.
How to Object to a Peremptory Challenge
A party may raise a section 231.7 objection before the jury is sworn. The court may also raise the issue on its own. The objection should identify the challenged strike and explain why the circumstances suggest that race, ethnicity, or gender was a factor. Promptly making a clear record is important because the judge must evaluate the challenge in the context of jury selection as it unfolds.
After an objection, the party that exercised the challenge is given an opportunity to state its reasons. The judge then evaluates the stated reasons and the circumstances under the statute. The analysis is not limited to whether the explanation appears plausible in the abstract. It may include comparison with other prospective jurors, the questions asked, the answers given, and whether the stated concern was treated consistently.
For example, suppose a lawyer says a prospective juror was removed because of skepticism toward police. The court may examine whether other jurors expressed similar skepticism but were not challenged. It may also consider the actual questioning and whether the record supports the explanation. The point is not that every difference proves discrimination; it is that the full selection record can matter.
Section 231.7 also addresses the use of a prospective juror’s demeanor as a reason for a challenge. When the explanation depends on an asserted manner or reaction, the court’s own observations and the statutory requirements are important. A lawyer’s unsupported description of demeanor does not automatically resolve the objection.
What Happens If the Court Finds a Violation?
If the judge sustains an objection, the court must take corrective action under the statute. Depending on the stage of selection and the circumstances, the court may disallow the challenge and retain the prospective juror, quash the jury panel and begin jury selection again, or take another remedy authorized by law. The judge’s choice should address the effect of the improper challenge and preserve a fair process.
The court reporter’s transcript and the record of jury selection can be important if the ruling is later reviewed. A clear record may include the objection, the reasons given, the court’s observations, and the judge’s findings. Appellate review depends on the applicable statutory and constitutional rules, the record, and the specific procedural posture; an alleged violation does not mean every case automatically results in the same outcome.
How Section 231.7 Relates to Batson and Wheeler
Batson and Wheeler established constitutional protections against discriminatory peremptory challenges. Traditionally, those cases are described through a three-step framework: the objecting party raises an inference of discrimination; the striking party provides a reason; and the judge decides whether purposeful discrimination occurred. California section 231.7 adds a statutory approach with a different central question: whether a reasonable person aware of the circumstances would view a protected characteristic as a factor.
That distinction matters. Under section 231.7, an objection can succeed without proving that the lawyer intended to discriminate. The statute also gives courts guidance on evaluating reasons that can mask bias and on assessing the jury-selection record. Constitutional claims under Batson and Wheeler remain relevant, but the precise procedure and available arguments depend on the case.
Practical Points for Jury Selection
- Keep track of the record. Notes on questions, answers, challenges, and comparable jurors can help identify inconsistencies.
- Raise concerns promptly. A section 231.7 objection must be made before the jury is sworn.
- Focus on the circumstances. The objection should connect the challenge to the statutory standard, rather than rely only on suspicion.
- Expect close judicial review. The court can consider the reason given alongside the entire voir dire record.
- Check the governing rules. Challenge counts and procedures may vary with the type and structure of the case.
These points explain the general process, not how a particular judge will rule. Jury selection decisions are fact-specific, and questions about preserving an objection or seeking review may require advice from a California attorney familiar with the case.
California State Court Rules Do Not Automatically Apply in Federal Court
Section 231.7 is a California state statute. A case in federal court is generally governed by federal law and the applicable federal rules, rather than automatically following California’s statutory procedure. Constitutional protections against discriminatory jury selection still apply, but the governing procedural framework may differ. The court where the case is pending is therefore a key detail when evaluating a peremptory challenge.
Authoritative Sources
California’s primary statutory reference is California Code of Civil Procedure section 231.7, which covers discriminatory peremptory challenges and the objection procedure. General peremptory challenge counts appear in Code of Civil Procedure section 231. The U.S. Supreme Court’s decision in Batson v. Kentucky, 476 U.S. 79 (1986), and the California Supreme Court’s decision in People v. Wheeler, 22 Cal. 3d 258 (1978), provide important background on constitutional limits.