300.33.1    Impairment Of Right To Exercise Of Peremptory Challenges As Federal Constitutional Violation

PRACTICE NOTE:  "It has been said that [the right to peremptory challenges] is one of the chief safeguards of a defendant against an unlawful conviction and that the courts ought to permit its freest exercise within the limitation fixed by the legislature....The right may not be abridged or denied. Arbitrary abridgment or denial of the right runs counter to principles vital to the integrity and maintenance of the system of a constitutional right of trial by jury." (People v. Diaz (CA 1951) 105 CA2d 690, 696 [234 P2d 300] cited with approval in People v. Bittaker (CA 1989) 48 C3d 1046, 1088 [259 CR 630]; see also McDonough Power Equip. v. Greenwood (CA 1984) 464 US 548, 554 [104 SCt 845; 78 LEd2d 663] [truthful answers by prospective jurors on voir dire are necessary to "assist parties in exercising their peremptory challenges" and thus protects the defendant's right to a fair trial by jury].

    However, in Ross v. Oklahoma (1988) 487 US 81, 88 [108 SCt 2273; 101 LEd2d 80] the court held that erroneous denial of a challenge for cause that required defense counsel to use a peremptory challenge did not violate the Sixth Amendment. The court concluded that peremptory challenges are a creature of statute, not required by the constitution and "[a]s such the  'right' to peremptory challenges is 'denied or impaired' only if the defendant does not receive that which state law provides." (Id. at 89; see also U.S. v. Martinez-Salazar (2000) 528 US 304 [120 SCt 774; 145 LEd2d 792].)

    Nevertheless, Ross should not be an impediment to a Due Process challenge to wrongful denial or impairment of peremptory challenges based on the arbitrary denial of a state created right. "[T]he failure of a state to abide by its own statutory commands may implicate a liberty interest protecting the Fourteenth Amendment against arbitrary deprivation by a state." (Vansickel v. White (9th Cir. 1999) 166 F3d 953.)

    Moreover, "although peremptory challenges are not constitutionally required, due process may be violated by a system of challenges that skewed towards the prosecution if it destroys the balance needed for a fair trial."  (See U.S. v. Harbin (7th Cir. 2001) 250 F3d 532 [permitting prosecutor to save peremptory challenge for use during trial violated defendant’s 5th Amendment rights; noting role peremptories play in securing an impartial jury and fair trial].)

    As to the showing of prejudice, it has been held that denial of a peremptory challenge requires automatic reversal in direct appeal cases in which the defendant has timely objected in the trial court regarding the erroneous limitation of his peremptory challenge. (See U.S. v. Annigoni (9th Cir. 1996) 96 F3d 1132; State v. Short (SC 1999) 511 SE2d 358 [no prejudice showing required because there was no way to determine with any degree of certainty whether the defendant's right to a fair trial by an impartial jury had been abridged]; see also Batson v. Kentucky (1986) 476 US 79, 91 [106 SCt 1712; 90 LEd2d 69]; but see U.S. v. Martinez-Salazar (2000) 528 US 304 [120 SCt 774; 145 LEd2d 792].)