A recent decision from the Indiana Supreme Court reminds us why it is so important to know the particular rules of your jurisdiction when preserving error during jury selection.
In Oswalt v. State, 19 N.E.3d 241 (Ind. 2014), during voir dire, Oswalt asserted a cause challenge to one juror which was denied. At that point, the defendant only had one preemptory challenge left and he chose to use it on a different juror who had not been challenged for cause.
On appeal, Oswalt challenged the trial court’s denial of his cause challenge. The state responded that Oswalt had waived his right to challenge that ruling because he had not used his final peremptory challenge to challenge the same juror who he had attempted to strike for cause.
Disagreeing with Indiana’s intermediate appellate court, the Indiana Supreme Court held, as a matter of first impression, that “complying with the exhaustion rule neither comes at the cost of a party’s final peremptory challenge, nor precludes review of earlier for-cause challenges. Instead, parties satisfy the exhaustion rule the moment they use their final challenge, regardless of whom they strike.” Id. at 247.
Preservation Issue: Specific Requirements For Preserving Cause Challenges
Tip: Most trial practitioners know that generally, under the “exhaustion rule,” a party must exhaust all of its peremptory challenges to preserve for review a trial court’s error in refusing to strike a potential juror for cause. But this case is a reminder that not all states apply the exhaustion rule in the same manner.
For example, Mississippi’s Supreme Court has held that, to preserve for review a trial court’s error in denying a cause challenge, the party must exercise a peremptory challenge on the challenged juror instead of other jurors the party wanted to excuse. See Adkins v. Sanders, 871 So. 2d 732, 741 (Miss. 2004). Similarly, the Texas Supreme Court has held that, to preserve error when a cause challenge is denied, “a party must use a peremptory challenge against the veniremember involved, exhaust its remaining challenges, and notify the trial court that a specific objectionable veniremember will remain on the jury list.” Cortez v. HCCI-San-Antonio, Inc., 159 S.W.3d 87, 90-91 (Tex. 2005) (citing Hallett v. Houston N.W. Med. Ctr., 689 S.W.2d 888, 890 (Tex. 1985).
The United States Supreme Court has suggested in dictum that a different rule may exist in federal court. In United States v. Martinez-Salazar, 528 U.S. 304, 314-15 (2000), the Court stated that a party is not required to exhaust its peremptory strikes to complain on appeal that the trial court erred in denying its cause challenge. It further went on to note that, if you choose to cure the trial court’s error by using a peremptory challenge against that juror, you have waived your right to appeal that ruling. Id. at 315-16.
Some states impose additional requirements beyond just exhaustion. For example, in Utah, as long as (a) all of the party’s peremptory challenges were used, and (b) a juror who was previously challenged for cause ends up being seated on the jury, the error has been preserved. See Turner v. Univ. of Utah Hosp. & Clinics, 310 P.3d 1212, 1220 (Utah 2013). In Florida, to preserve the denial of a cause challenge, you must (a) exhaust all peremptory challenges, (b) ask for more peremptory challenges, and (c) identify specific jurors that you would have challenged with additional peremptory challenges. See Kearse v. State, 770 So. 2d 1119, 1128 (Fla. 2000).
What this makes clear is that it is critically important that you study the law of the jurisdiction you are in to ensure that you properly preserve your error on jury selection for review. These differences could make or break your appeal.