In a federal civil trial, each side gets three peremptory challenges. In a federal criminal trial, the number of peremptory challenges in federal court runs from three per side for a misdemeanor, to six for the government and ten for the defense in a non-capital felony, up to twenty per side in a capital case. Judges can adjust these numbers when multiple parties are involved, and additional strikes are available when alternate jurors are seated.
Civil Cases: Three Per Side
Federal law gives each side three peremptory challenges in a civil trial. “Each side” means the plaintiff’s side and the defendant’s side, not each individual party. When several plaintiffs or several defendants are involved, the court can treat them as a single party sharing three challenges, or it can grant additional challenges and let the parties on one side exercise them separately.1Office of the Law Revision Counsel. 28 USC 1870 – Challenges The second option usually shows up in complex litigation where co-defendants have genuinely different interests and want independent control over jury selection.
Criminal Cases: Strikes Scale With the Charge
Federal criminal juries have twelve members, and the number of peremptory challenges depends on how serious the charges are. Federal Rule of Criminal Procedure 24 sets three tiers:2Legal Information Institute. Federal Rules of Criminal Procedure Rule 24 – Trial Jurors
- Capital cases, where the government is seeking the death penalty: 20 peremptory challenges per side.
- Non-capital felonies, meaning any crime punishable by more than one year in prison: 6 challenges for the government and 10 for the defendant (or all co-defendants jointly).
- Misdemeanors, meaning crimes punishable by a fine, up to one year of imprisonment, or both: 3 challenges per side.
The unequal split in felony cases is intentional. Defendants face the full power of the government and potentially severe punishment, so the rule gives the defense more strikes.
Extra Challenges When Alternates Are Seated
Criminal trials often seat alternate jurors who can step in if a regular juror is excused before deliberations. When alternates are seated, each side gets additional peremptory challenges that can only be used against prospective alternates, not the main panel:
- One or two alternates: one extra challenge per side.
- Three or four alternates: two extra challenges per side.
- Five or six alternates: three extra challenges per side.
Longer trials tend to seat more alternates, since there is more time for jurors to develop conflicts, fall ill, or need to be excused.
Multiple Defendants Tried Together
When co-defendants are tried together in a felony case, they share the ten defense strikes. A judge can grant additional peremptory challenges to account for conflicting interests among co-defendants who may want to strike different jurors. If the court grants extra defense challenges, the prosecution can request its own additional challenges, but those cannot exceed the total available to the defendants jointly. The judge is not required to match the numbers. The court can also decide whether co-defendants must exercise their challenges together or may use them separately.
What Peremptory Strikes Cannot Be Used For
A peremptory challenge requires no stated reason, but it cannot be used to discriminate. The Supreme Court held in Batson v. Kentucky that the Equal Protection Clause forbids prosecutors from striking jurors based on race.3Cornell Law Institute. Batson v. Kentucky, 476 US 79 Later decisions extended the prohibition to ethnicity and gender, and the rule applies to both sides in civil and criminal cases.
When one attorney suspects the other is striking jurors based on race or gender, they can raise a Batson challenge. The process runs in three steps:
- Prima facie case: the objecting party points to facts suggesting a discriminatory pattern, such as the other side striking every juror of a certain race from the panel.
- Neutral explanation: the attorney who made the strike offers a reason unrelated to race or gender.
- Judicial ruling: the judge decides whether that explanation is genuine or a cover for discrimination.
Pretextual explanations are common, and trial judges have to make credibility calls in real time. Knowing the numeric limits on strikes is only half of jury selection in federal court; the other half is knowing that the strikes you do have cannot be used to remove jurors on the basis of protected characteristics.