ATTORNEYS FOR APPELLANTS ATTORNEY FOR APPELLEE
Stephen Hensleigh Thomas Shannon L. Robinson
Daniel A. Barfield Bloomington, Indiana
SUPREME COURT OF INDIANA
Nina Merritt, Individually and as ) Next Friend and Natural Mother ) of Kristin Alexander, and Kristin ) Alexander, Individually, ) No. 82S01-0102-CV-98 ) in the Supreme Court Appellants (Plaintiffs Below ),) ) v. ) No. 82A01-9912-CV-421 ) in the Court of Appeals EVANSVILLE-VANDERBURGH SCHOOL ) CORPORATION, ) ) Appellee (Defendant Below ). )
April 5, 2002
During voir dire, Merritt challenged three prospective jurors (Cynthia Carneal, Susan Harp, and
Sharon Kennedy) for cause because they had some acquaintance with Bennett and/or worked
for the school system. Each had said during earlier examination that she
could reach an impartial decision in the case. Apparently satisfied that this
was true, the trial judge denied all three challenges.
Merritt used two of her three available peremptories to strike Carneal and Kennedy.
She also struck Steven Bender, who expressed general concern about excessive litigation
but said he could be fair in deciding the case. Harp served
on the jury as the foreperson. The jury returned a verdict in
favor of EVSC.
On appeal, Merritt argued that the trial court erred by not dismissing Carneal
and Harp for cause based on their employment with EVSC. EVSC argued
that Merritt waived this claim by failing to use a peremptory strike to
exclude Harp. A divided Court of Appeals addressed the claim on the
merits and reversed, finding Harp and Carneal impliedly biased and/or biased as a
matter of law because they were employed by the defendant, EVSC. Merritt
v. Evansville-Vanderburgh Sch. Corp., 735 N.E.2d 269, 270, 272 (Ind. Ct. App. 2000).
We granted transfer. 753 N.E.2d 5 (Ind. 2001).
The threshold question here is whether a party can pass up the opportunity
to remove an incompetent
See footnote juror and then assert error on appeal. Because
we find the claim of error waived, we do not address whether the
trial court erred by not excusing Carneal and Harp.
As for when such a complaining party is entitled to seek a new
trial, a claim of error arising from denial of a challenge for cause
is waived unless the appellant used any remaining peremptory challenges to remove the
challenged juror or jurors. Indianas long-standing rule, which the Court of Appeals
acknowledged, is also widely recognized in other states.
As we said in
Robinson v. State, 453 N.E.2d 280 (Ind. 1983), Our
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 she challenged the jurors for cause, she had exhausted her peremptory
Id. at 282 (emphasis in original) (citing, inter alia, Rock v.
State, 185 Ind. 51, 110 N.E. 212 (1915)). Eventual use of all
peremptory challenges is therefore not enough to satisfy the exhaustion requirement.
Dissenting in the present case, Chief Judge Sharpnack explained the rationale for this
approach: [W]here a trial court may have erred in denying a
partys challenge for cause, and the party can cure such error by peremptorily
removing the apparently biased venireperson, the party should do so in order to
ensure a fair trial and an efficient resolution of the case. Merritt,
735 N.E.2d at 272 (Sharpnack, C.J., dissenting) (citation omitted).
Peremptory strikes permit litigants to assist the government in the selection of an
impartial trier of fact.
Edmonson v. Leesville Concrete Co., 500 U.S. 614,
620 (1991). In Ross v. Oklahoma, 487 U.S. 81 (1988), the U.S.
Supreme Court upheld Oklahomas exhaustion requirement against a federal constitutional challenge, describing peremptory
strikes as a means to achieve the end of an impartial jury rather
than a right of constitutional dimension. Id. at 88. To obtain
reversal under Oklahoma law, the appellant must properly preserve the right to challenge
the courts failure to remove a biased juror for cause, and the biased
juror must actually serve. Id. at 85. The Court found nothing
arbitrary or irrational about [an exhaustion] requirement, which subordinates the absolute freedom to
use a peremptory challenge as one wishes to the goal of empaneling an
impartial jury. Id. at 90.
Likewise, Justices Scalia and Kennedy recently described the exhaustion rule as consistent with
the history of peremptory challenges in criminal cases:
[I]t may well be regarded as one of the very purposes of peremptory challenges to enable the defendant to correct judicial error on the point [of juror bias]. Indeed, that must have been one of their purposes in earlier years, when there was no appeal from a criminal convictionso that if the defendant did not correct the error by using one of his peremptories, the error would not be corrected at all.
United States v. Martinez-Salazar, 528 U.S. 304, 319 (2000) (Scalia, J., concurring in
The rule upheld by the U.S. Supreme Court in Ross is more stringent
than our own practice. In Indiana, it is enough to show that
an objectionable juror served because a party was forced to use a peremptory
strike to cure an erroneous denial of a challenge for cause. The
appellant need not prove that the objectionable juror was incompetent, i.e., one who
should have been excused for cause. See Woolston, 453 N.E.2d at 968.
It is sound policy to require litigants to help themselves by using their peremptory challenges to ensure an impartial jury. Permitting them to seek a new trial when they had a remedial tool available and chose not to use it could lead to harsh results.
We can contemplate ready examples. Assume a class C felony battery case,
where the criminal defendant has ten peremptory challenges to use in selecting a
twelve-person jury. After voir dire of the first group of prospective jurors,
the hypothetical defendant challenges one juror for cause, claiming, say, bias against arrestees.
After that challenge is erroneously denied, the defendant uses all ten peremptory
challenges to strike ten other venire members for any of the infinite variety
of reasons people use peremptories, from readily apparent grounds to the utterly inchoate.
The defendant seeks a new trial, citing the generally applicable rule that
participation of an incompetent juror in a verdict requires retrial.See footnote
While this bright-line rule of reversal is widely embraced, in this example it would create unwarranted costs and inefficiencies for the parties, the court system, and citizen jurors. The exhaustion rule solves this problem by preventing this defendant from complaining on appeal that service by the challenged juror denied him a fair trial. This seems like an eminently fair and more sensible result.
We could avoid retrial in this example by adopting a different rule, such
as a case-sensitive analysis of whether the defendant used his peremptory challenges reasonably,
or whether that jurors bias resulted in actual, not just potential, prejudice to
Such rules would, of course, be slippery slopes. And it seems unlikely
the slope would favor persons who deem themselves deprived of a fair trial
by the presence of an incompetent juror.
Surely such parties are better off with a clear and predictable road map:
you must use any available peremptories to correct erroneous denials of challenges
for cause. If on appeal you then prove both the erroneous denial
and that you were unable to strike another objectionable juror because you exhausted
your peremptories, you are entitled to a new trial, full stop.See footnote
The object to be attained is an impartial jury, and while the right of peremptory challenge is an absolute one, it is not, we think, so far so that it may be exercised under all conditions. McDonald v. State, 172 Ind. 393, 400, 88 N.E. 673, 676 (1909). See footnote We conclude that Indianas moderate position-- requiring an appellant to show that an incompetent or objectionable juror actually served because she used up her peremptories to strike a juror she challenged for cause who should have been, but was not, excused by the court--represents the best balancing of the various private and public interests at stake.
Dickson, Sullivan, Boehm, and Rucker, JJ., concur.