After the initial panel of jurors has been selected, the parties may then exercise their peremptory challenges. A “peremptory challenge” gives a litigant discretionary power to cause a prospective juror to be excused from sitting in a case where the court has determined that there is no basis for excusing a juror for cause. Being the creation of statute or rule, peremptory challenges are subject to reasonable regulation as to the manner of their exercise.92 Although not constitutionally mandated, it has been said that, as the peremptory challenge, when appropriately exercised, is an essential tool for eliminating potential jury bias, it must be made available to any party within constitutional limits.93

In civil trials, each party is entitled to three peremptory challenges. In non-capital criminal cases, the State is entitled to six peremptory challenges, and the defendant or (if more than one) defendants as a group are entitled to six peremptory challenges. In a civil case, multiple defendants or multiple plaintiffs may be considered as a single party for the purpose of making challenges, or, in both civil and non-capital criminal cases, the court may allow additional peremptory challenges and permit them to be exercised separately or jointly. For good cause shown, the court may grant the parties such additional peremptory challenges as the court, in its discretion, deems appropriate.  Any request for additional challenges must be made before commencement of the drawing of the jury or at such earlier time as is ordered by the court.94

In deciding whether to grant additional peremptory challenges, and how many, the trial court may consider the number of available jurors.94.1 Each side is entitled to one additional peremptory challenge if one or two alternate jurors are to be impaneled, two additional peremptory challenges if three or four alternate jurors are to be impaneled and three additional peremptory challenges if five or six alternate jurors are to be impaneled. These additional peremptory challenges may be used against alternate jurors only, and the other peremptory challenges may not be used against an alternate juror.95

A peremptory challenge is exercised as follows. The Prothonotary provides to the plaintiff or plaintiffs in a civil case or to the defendant or defendants in a criminal case a chart with the names of the twelve called jurors. In a civil case, the plaintiff or plaintiffs as a group, or in a criminal case the defendant or defendants as a group, or in succession if the court has granted the right to challenge individually, or their respective counsel, take a pen or pencil and draw a line through the name of the juror desired to be challenged and return the chart to the Prothonotary. The Prothonotary calls the name of the challenged juror and asks that juror to step down from the jury box. The Prothonotary then picks the name of a replacement at random from the box containing the prospective jurors’ names and calls out that name. The called juror then takes his or her place in the jury box where the challenged juror had been seated. The process then begins again with the other party or parties exercising their peremptory challenges, challenging in a similar manner. This continues until either all peremptory challenges have been used or all parties declare that they are content with the jury panel. When a party announces that he, she or they are content, this counts as a challenge, and that party may not thereafter challenge a juror who was seated at the time of the announcement that such party was content, unless the court, for good cause shown, grants relief from this restriction.96

92. Baynard v. State, 518 A.2d 682, 685 n.2 (Del. 1986); Riley v. State, 496 A.2d 997, 1010 n.7 (Del. 1985), cert. denied, 478 U.S. 1022 (1986); McBride v. State, 477 A.2d 174, 189 (Del. 1984); Hickman v. State, 431 A.2d 1249, 1250 (Del. 1981); Shields v. State, 374 A.2d 816, 820 (Del. 1977), cert. denied, 434 U.S. 893 (1977).

93. Riley v. State, 496 A.2d 997, 1012 (Del. 1985), cert. denied, 478 U.S. 1022 (1986). See also Dawson v. State, 581 A.2d 1078, 1094, 1096 (Del. 1990), vacated on other grounds, remanded, 112 S. Ct. 1093 (U.S. 1992).

94. Super. Ct. Civ. R. 47(c); Super. Ct. Cr. R. 24(b); Comm. Pls. Ct. Cr. R. 24(b); Juror Management Order, Standard 9.

94.1. Williamson v. State, 707 A.2d 350, 362 (Del. 1998).

95. Super. Ct. Civ. R. 47(b); Super Ct. Cr. R. 24(c); Comm. Pls. Ct. Cr. R. 24(c); Juror Management Order, Standard 9.

96. Ericson v. Walp, 511 A.2d 381 (Del. 1986); Le Gro v. Moore, 138 A.2d 644, 646-47 (Del. 1958); Super. Ct. Cr. R 23(b)(3)(B); Comm. Pls. Ct. Cr. R. 23(b)(3)(B); Juror Management Order, Standard 9(h).

© 2010  David L. Finger