Claims that errors were made during jury selection are among the most common of all grounds for criminal appeals. (1) Yet appellate courts, both state and federal, seem profoundly confused about how to analyze these kinds of errors. The confusion has its roots in a defendant's ability to cure most jury selection errors with the use of a peremptory challenge, and the resulting question of whether the price of such a cure--the loss of a peremptory challenge--is itself an injury requiring reversal.
Consider, for example, two state court cases that reached opposite conclusions about errors that led to the loss of a defendant's peremptory challenge. The first case is from Vermont, where John Doleszny was charged with sexual assault on a victim under sixteen. (2) During jury selection, a prospective juror disclosed that he was acquainted with one of the prosecution witnesses, a doctor who had examined the alleged victim after the assault. When asked if he could be impartial in evaluating the testimony of the doctor, the prospective juror replied, "I certainly could try to be impartial but I'm not saying that I could." (3) The prosecution was unable to rehabilitate this response. (4)
Despite the prospective juror's inability to assure the trial judge that he could be impartial, the judge erroneously denied Mr. Doleszny's challenge for cause. Mr. Doleszny was then forced to use a peremptory challenge to remove the prospective juror. Since Mr. Doleszny eventually exhausted his peremptory challenges, he was in effect deprived of one peremptory challenge as a result of the trial judge's erroneous denial of his challenge for cause.
On appeal, the Vermont Supreme Court reversed the conviction and remanded for a new trial. Such an error, said the court, is automatic reversible error. (5) There are many jurisdictions that analyze these kinds of errors the same way: if the defense lost a peremptory challenge as a result of the judge's error, the conviction is automatically reversed without further inquiry. (6)
But other jurisdictions would apply a harmless error analysis to the same error. (7) One example is a case from Idaho, where Eric Ramos was charged with two counts of lewd conduct with minors. (8) During jury selection, a prospective juror expressed his belief that the defendant "must have done something" to be on trial. (9) As in Doleszny, the prosecution was unable to rehabilitate this prospective juror. (10) When the trial judge refused to remove him for cause, Mr. Ramos used a peremptory challenge to remove the putative juror and eventually exhausted his peremptory challenges. (11)
Instead of stopping at the cause error itself and simply reversing, the Idaho Supreme Court examined the impact of the error on Mr. Ramos' trial, specifically, whether there was anything wrong with the jury that had convicted him. Because Mr. Ramos removed the biased juror with one of his peremptory challenges and there was no evidence that the jury that convicted him had not been fair and impartial, the Idaho Supreme Court concluded that Mr. Ramos had not been prejudiced by the trial judge's erroneous cause ruling and affirmed the conviction. (12)
These two cases represent two very different approaches to a very common problem. While the cases often involve erroneous denials of a defense challenge for cause, as in Doleszny and Ramos, there are many other situations in which a variant of the same problem commonly arises. For example, when a trial judge erroneously grants a prosecution challenge for cause and the prosecution exhausts all of its peremptory challenges, that error has the effect of giving the prosecution an additional peremptory challenge. Like Doleszny and Ramos, defendants in such cases suffer an imbalance in peremptory challenges, although the source of the imbalance is that the prosecution received more peremptory challenges rather than that the defendant received fewer. …