Use of Peremptory Challenges and Preservation of Challenges for Cause

The great thing about our system of democracy is when they call you for jury duty, you have to come… It’s an honor and a privilege. I was called and I’ve got to be here.    – – Antonio Villaraigosa

Pursuant to Indiana’s long-standing rule, a claim of error arising from the denial of a challenge for cause is waived unless that party used any remaining peremptory challenges to remove the challenged juror or jurors.   In Robinson v. State, 453 N.E.2d 280, 282 (Ind.1983), the Indiana Supreme Court stated “[o]ur law on this issue is well settled. We have consistently held that to preserve any error the defendant bears the burden of demonstrating that at the time [he or she] challenged the jurors for cause,[he or she] had exhausted [their] peremptory challenges.” Eventual use of all peremptory challenges is therefore not enough to satisfy the exhaustion requirement. Merritt v. Evansville-Vanderburgh School Corp., 765 N.E.2d 1232, 1235 (Ind. 2002). The rationale for this approach is that “where a trial court may have erred in denying a party’s challenge for cause, and the party can cure such error by peremptorily removing the apparently biased venire person, the party should do so in order to ensure a fair trial and an efficient resolution of the case.” Id. To guide attorneys through the field of venire challenges, our supreme court devised a clear and predictable road map.  You must use any available peremptories to correct erroneous denials of challenges for cause if they are available. If on appeal you then prove both the erroneous denial and that you were unable to strike another objectionable juror because you exhausted your peremptory challenges, you are entitled to a new trial. Id. at 1237.

Failure to correct the problem yourself, if possible through the use of a peremptory strike, waives any error caused by the trial court’s denial of your challenge for cause.

Advertisements

About Richard A. Cook

Richard Cook graduated from Purdue University in the Economics Honor Program in 1979 and obtained his Juris Doctor degree from Valparaiso University School of Law in 1982. Following law school, Richard served as a federal law clerk in the U.S. District Court for the Northern District of Indiana, Hammond Division. In 1984, Richard began working as Deputy Prosecutor for the Lake County Prosecutor's Office and from there, served as Assistant U. S. Attorney for the Northern District of Indiana, South Bend Division. There he handled a number of complex criminal matters and jury trials. While there, Richard received the Chief Postal Inspector's Special Award and a letter of commendation from the U.S. Attorney General for his work prosecuting a major money order fraud scheme being perpetrated out of the Indiana State Prison system. Since leaving the U.S. Attorney's office in 1989, Richard has focused primarily on civil work and is currently a member of the firm Yosha Cook & Tisch in Indianapolis. Richard is also a member of the ITLA, IBA and the ABA, as well as, a fellow for the American College of Trial Lawyers. He is AV rated by Martindale-Hubbell.

Posted on November 13, 2014, in Jury Selection and tagged , , , , , , , , . Bookmark the permalink. Leave a comment.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: