is a necessary part of trial by jury." (69)
"At oral argument the defendant conceded, and we agree, that he suffered no actual prejudice from the error, as the Commonwealth completed jury selection with a peremptory challenge
left available to use (and which could have been used on the prospective juror had she not been excused for cause).
The court also said that the defendant did not forfeit his right to appeal the denial of his for-cause strike of the juror when he did not use a peremptory challenge
"The court conducted a hearing and determined that the reason proffered by the People for the peremptory challenge
was nondiscriminatory and not pretextual," the Fourth Department panel wrote in the decision released Friday.
Then each side can eliminate from the jury pool a fixed number of people for any reason at all, as long as that reason is not some form of proscribed discrimination (this is a "peremptory challenge
Using the peremptory challenge
, lawyers currently can reject potential jurors without giving a reason, which the Boushie family's lawyer and others argue was used by the defence in Stanley's trial to block Indigenous people from sitting on the jury.
Martin, a defendant appealed a prosecuting attorney's use of a peremptory challenge
based solely on the fact that the venireperson was a Jehovah's Witness and, thus, unable to judge others.
The peremptory challenge
was not born in the United States; it is a practice the United States adopted from the European justice system.
Norton, Race and Jury Selection: Psychological Perspectives on the Peremptory Challenge
Debate, 63 AM.
472, 476 (2008) ("First, a defendant must make a prima facie showing that a peremptory challenge
has been exercised on the basis of race....").
Compounding the issue, there exists the problem of discrimination in the peremptory challenge
O'Connell, The Elimination of Racism from Jury Selection: Challenging the Peremptory Challenge
, 32 B.C.