A commenter on this post asks:
I do have a few questions on challenges for cause. Mostly, how are they resolved? Is it entirely about negotiation to consensus and good faith, or does the judge have complete discretion? Also, what happens if you don’t have a large enough panel remaining for a strike zone of 32 (e.g. thirty nullificationists show up that day)? Do you just have fewer peremptory challenges, or do you go get a new panel?
The judge does not have discretion to deny a challenge for cause once the law has been explained to the juror and it has been established that the juror cannot follow the law.
That the judge does not have discretion to do something does not mean that the judge can’t do it or won’t do it. It just means that if the judge does it it may be grounds for reversal on appeal.
So let’s say that you’re a potential juror, and you explain that you can’t presume my clientto be innocent because he’s charged with burglary of a motor vehicle and someone broke into your car recently and you’re too angry about it to see straight. I challenge you for cause. The judge denies my challenge. What I have to do next is preserve error—to make a record for the court of appeals so that they can see that the judge screwed up, that I gave her a chance not to, and that my client was harmed by the screwup.
- The jury selection is on the record—that is, the court reporter is taking it down. That’s the first step.
- The second step is to make sure the strike lists—the jury lists with the State’s and the defense’s strikes—are on the record. This usually happens as a matter of course.
- The third step is to make a timely and specific objection. This is almost always a requirement for preserving error in trial. I have to tell the judge what she has just done (or is about to do) wrong. In this context, I do it by making the challenge for cause.
- Then I have to use a peremptory challenge to remove you from the jury. That’s the fourth step.
- After I’ve removed you from the jury, the fifth step is to use up the rest of my peremptory challenges. If I only use nine peremptory challenges, the court of appeals will say that my client wasn’t harmed by the denial of the challenge for cause.
- Not only that, but I have to ask for more peremptory challenges, because additional peremptory challenges could fix the judge’s mistake. I have to keep asking until the judge denies me any additional peremptory challenges. That’s the sixth step.
- The seventh step is to identify, for the record, an objectionable person seated on the jury on whom I would have exercised a peremptory challenge if I had one.
If I leave out any of those steps, the court of appeals will rule that the judge’s error in denying my challenge for cause was harmless error and affirm the conviction on appeal. As you might imagine, trial lawyers more often than not miss a step; that’s why my paper has checklists of steps to preserve error in this and other circumstances. My hope is that defense lawyers will keep my paper handy and refer to the checklists in trial.
If we had a panel of sixty with thirty nullificationists, the judge would probably look cockeyed at the prosecutor and ask her if she really wants to try a case that half the population thinks shouldn’t be prosecuted. If the prosecutor wanted to go on, the judge could carry on—since the parties aren’t privy to each other’s strikes, and since they don’t have to use all of their strikes, it’s possible that the defense and State would not strike a total of twenty people. If they did and a jury of twelve could not be formed, the panel would be busted and the usual practice is to send that panel home and try again the next day with a larger group.