28 USC 1870 is the federal statute that governs jury challenges in civil trials. It does three things: it gives each side three peremptory challenges, it lets the court treat multiple plaintiffs or multiple defendants as a single party (or grant extra peremptories and let co-parties use them jointly or separately), and it places every challenge for cause under the judge’s control.1Office of the Law Revision Counsel. 28 USC 1870 Challenges The statute is short, but it sets the frame for how a federal civil jury actually gets picked.
The Three Peremptory Challenges Per Side
Each side in a federal civil trial gets three peremptory challenges.1Office of the Law Revision Counsel. 28 USC 1870 Challenges A peremptory strike removes a prospective juror without any stated reason. An attorney can use one on a hunch, on a pattern in the juror’s answers during voir dire, or on the sense that a particular person will not be receptive to the case being presented. No justification is required, and the judge does not weigh the merits of the choice.
Three is a small number, and it shapes strategy. Experienced trial lawyers push hard on for-cause challenges first, because those are unlimited, and reserve peremptory strikes for jurors who seem problematic but whose bias is not strong enough to persuade the judge. Burn a peremptory early on a juror the court might have removed for cause, and you have one fewer strike left for the marginal calls later in the panel.
The one thing a peremptory challenge cannot do is remove a juror based on a protected characteristic. That constitutional limit is discussed below.
How the Statute Handles Multi-Party Cases
When a lawsuit has more than one plaintiff or more than one defendant, the default under 28 USC 1870 is that all co-parties on a side share three peremptory challenges among themselves. The court may treat the co-parties as a single party for challenge purposes, or it may grant additional peremptories and let the co-parties exercise them separately or jointly.1Office of the Law Revision Counsel. 28 USC 1870 Challenges
That flexibility exists because co-parties often disagree about who should stay on the jury. Two defendants with clashing theories may want to strike very different people, and three shared strikes can leave little room. The statute puts the decision with the trial judge, and there is no formula. Courts weigh the number of parties, whether the co-parties’ interests genuinely conflict, and whether fairness requires giving each of them independent control over some portion of the strikes.2Office of the Law Revision Counsel. 28 U.S. Code 1870 – Challenges
Challenges For Cause Under the Statute
The final sentence of 28 USC 1870 places all challenges for cause “whether to the array or panel or to individual jurors” under the court’s control.1Office of the Law Revision Counsel. 28 USC 1870 Challenges Two things follow from that placement.
First, there is no cap on how many for-cause challenges a party can raise. If ten prospective jurors reveal disqualifying bias during voir dire, the attorney can challenge all ten. Each challenge, though, must be justified, and the judge rules on each one individually. The party asking to strike a juror identifies the specific problem, and the judge decides whether the concern is serious enough to warrant removal.
Second, the judge is the decisionmaker. The parties do not remove a juror for cause on their own say-so. Common grounds for a successful for-cause challenge include a personal or financial relationship with a party, a fixed opinion about the outcome that the juror cannot set aside, professional knowledge that would substitute for the trial evidence, and any other circumstance that would prevent genuine impartiality.
The general federal standard comes from the Supreme Court’s decision in Wainwright v. Witt: a juror should be excused whenever their views would “prevent or substantially impair” the ability to follow the court’s instructions and honor the juror’s oath.3Cornell Law Institute. Amendment 6 Death Penalty and Requirement of Impartial Jury Trial judges are given broad discretion, and appellate courts rarely reverse a for-cause ruling unless the record shows a clear error.
Challenge to the Array Versus to an Individual Juror
The statute’s phrase “to the array or panel or to individual jurors” covers two very different attacks. A challenge to the array targets the entire jury pool, usually on the grounds that the selection process was flawed or failed to draw from a fair cross-section of the community. A challenge to an individual juror is the more familiar for-cause challenge aimed at a single person. Both go to the judge, and both fall under the same statutory grant of judicial control.
Constitutional Limits on Peremptory Strikes
Peremptory challenges under 28 USC 1870 are discretionary, but they are not without limits. In Batson v. Kentucky, the Supreme Court held that using peremptory strikes to remove jurors because of race violates the Equal Protection Clause of the Fourteenth Amendment.4Cornell Law Institute. Batson v. Kentucky, 476 U.S. 79 When one side suspects the other of striking jurors for a discriminatory reason, the objection is known as a Batson challenge.
A Batson challenge runs through three steps. The objecting party first has to show enough facts to raise an inference of discrimination, such as a pattern of strikes against jurors of one race or a strike that seems inexplicable on any other ground. If the judge finds that threshold met, the striking party must offer a race-neutral or gender-neutral explanation. The explanation does not have to be persuasive at this stage; it just has to be something other than the juror’s protected characteristic. Then the judge decides whether the explanation is genuine or a pretext for discrimination, weighing the credibility of the explanation, whether similarly situated jurors of a different group were treated differently, and any broader pattern in the strikes.
Two extensions matter for federal civil cases specifically. In Edmonson v. Leesville Concrete Co., the Court held that private litigants in civil cases cannot use peremptory challenges to exclude jurors on account of race.5Justia Law. Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 Batson therefore applies with full force to the three peremptories that 28 USC 1870 gives each side. And in J.E.B. v. Alabama ex rel. T.B., the Court held that “gender, like race, is an unconstitutional proxy for juror competence and impartiality,” barring gender-based peremptory strikes.6Legal Information Institute (LII) / Cornell Law School. J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
Beyond race and gender, federal courts are split. Several circuits have applied Batson to ethnicity and national origin without much controversy. Religion is more contested, with some circuits treating strikes based solely on religious affiliation as Batson violations and others not. The Ninth Circuit has extended Batson to sexual orientation, while other circuits have expressed doubt. Federal courts have generally declined to extend Batson to political affiliation, age, or disability. The Supreme Court has not resolved most of these splits, so the answer depends on the circuit.
Preserving a Denied For-Cause Challenge for Appeal
Losing a for-cause challenge at trial does not, by itself, give you a viable issue on appeal. Federal courts generally require a specific sequence. You have to use one of your peremptory challenges to remove the juror whose for-cause challenge was denied, exhaust your remaining peremptory challenges, ask the judge for additional peremptories (which will almost certainly be denied), and then, before the jury is sworn, make a record identifying which other jurors you would have struck if you had not been forced to spend a peremptory on the juror who should have been removed for cause.
Skip a step, and the appellate court is likely to find the issue waived. The logic is straightforward. If you did not spend a peremptory on the biased juror, you cannot show the judge’s ruling harmed you. And if you had peremptories left at the end of selection, you had the tools to fix the problem yourself. Preserving this kind of error takes real-time discipline in a fast-moving process.
Scope: Civil Cases Only
28 USC 1870 governs only federal civil trials. Federal criminal cases draw their peremptory challenge rules from a different source, Rule 24 of the Federal Rules of Criminal Procedure, which allocates a different number of strikes depending on whether the case is capital, felony, or misdemeanor and lets the court grant extra challenges in multi-defendant cases.7Legal Information Institute (LII) / Cornell Law School. Rule 24 Trial Jurors – Federal Rules of Criminal Procedure If you are looking at a criminal jury selection question, 1870 is not the right statute.