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The Author provides a history and overview of peremptory challenges and their relationship with challenges for cause. Part I of the Article outlines the various types of state statutes and state case law related to the mandatory or permissive use of peremptory challenges to correct perceived error in deciding challenges for cause.

Part II includes a discussion of the current law of error analysis in the federal courts and recent trends in that area of law. Part III consists of a review of the Supreme Court case law involving error analysis and peremptory challenges. This Part examines the specific situation, and the specific feature of Oklahoma law, that led to Ross. That feature is critical in limiting Ross. With that interpretation of Ross in mind, Part IV turns to the courts' responses to related situations, contrasting those interpreting Ross as a broad directive with those that limit it to its procedural posture. The Author concludes that the latter courts are correct in viewing Ross as by no means the final word in consideration of error involving peremptory challenges. The former courts fail to recognize the unique situation faced by the Ross court as laid out in Part lll; without such recognition, they fail to distinguish the cases they face from Ross.

Part V concludes that Ross can and should be limited in a principled way to the context in which a state, in its peremptory challenge scheme, has chosen to impose two separate policy goals for peremptory challenges by requiring a litigant to use a peremptory challenge to preserve error in deciding a challenge for cause.

Recommended Citation

27 Am. J. Crim. L. 49 (1999)