Petitioner was charged with the capital offense of first-degree
murder. An Oklahoma statute provides both parties in capital trials
with nine peremptory challenges to prospective jurors. After the
trial court denied petitioner's motion to remove for cause
prospective juror Huling, who had declared that he would vote to
impose death automatically if the jury found petitioner guilty, the
defense exercised one of its peremptory challenges to remove him.
Although the defense used all nine of its challenges, it did not
challenge for cause any of the 12 jurors who actually heard the
case. At the close of jury selection, the trial court overruled the
objection of petitioner, who is black, that the composition of the
all-white jury denied him a fair and impartial trial by his peers.
The jury found petitioner guilty and sentenced him to death, and
the Oklahoma Court of Criminal Appeals affirmed.
1. Although the trial court erred in failing to remove Huling
for cause under Witherspoon v. Illinois, 391 U.
, and Wainwright v. Witt, 469 U.
, such failure did not abridge petitioner's Sixth
and Fourteenth Amendment right to an impartial jury, since Huling
did not sit on the jury that sentenced petitioner to death,
petitioner's peremptory challenge having removed him as effectively
as if the trial court had done so. The broad language in Gray
v. Mississippi, 481 U. S. 648
481 U. S. 665
"relevant inquiry is whether the composition of the jury
panel as a whole
could possibly have been affected by the
trial court's error"
(internal quotations omitted; emphasis in original), is too
sweeping to be applied literally, and should not be extended beyond
its context: the erroneous "Witherspoon
exclusion" of a
qualified juror in a capital case. Although the failure to remove
Huling may have resulted in a jury panel different from that which
would otherwise have decided the case, one of the principal
concerns animating Gray
-- the inability to know whether
the prosecution could and would have used a peremptory challenge to
remove the erroneous excluded juror -- is absent here, since Huling
was in fact removed. The fact that petitioner had to use a
peremptory challenge to cure the court's error does not mean that
the Sixth Amendment was violated, since peremptory challenges are
not of constitutional dimension,
Page 487 U. S. 82
but are merely a means to achieve the end of an impartial jury.
Petitioner has failed to establish that the jury that actually sat
was not impartial, since he never challenged any of the jurors for
cause, nor suggested their partiality, and since, in this Court, he
neither pressed the claim that the absence of blacks deprived the
jury of partiality nor suggested that such absence was in any way
related to the court's failure to remove Huling. Pp. 487 U. S.
2. The trial court's failure to remove Huling for cause did not
abridge petitioner's Fourteenth Amendment right to due process by
arbitrarily depriving him of his full complement of peremptory
challenges. Even assuming that the Constitution renders a State's
denial or impairment of the right to exercise such challenges
reversible error without a showing of prejudice, cf. Swain v.
Alabama, 380 U. S. 202
that "right" would be "denied or impaired" only if the defendant
did not receive that which state law provides, since peremptory
challenges are a creature of statute, and not constitutionally
required, and, accordingly, it is for the State to determine their
number and to define their purpose and the manner of their
exercise. Although Oklahoma provides a capital defendant with nine
peremptory challenges, state law has long qualified this grant with
the requirement that the defendant must use those challenges to
cure erroneous refusals to excuse jurors for cause. There is
nothing arbitrary or irrational about such a requirement, since it
subordinates the unfettered discretion to use challenges to the
goal of empaneling an impartial jury, and since this Court has
sanctioned numerous incursions upon the right to challenge
peremptorily. Thus, petitioner's due process challenge must fail,
since he received all that Oklahoma law allowed him. Logan v.
Zimmerman Brush Co., 455 U. S. 422
Hicks v. Oklahoma, 447 U. S. 343
distinguished. Pp. 487 U. S.
REHNQUIST, C.J., delivered the opinion of the Court, in which
WHITE, O'CONNOR, SCALIA, and KENNEDY, JJ., joined. MARSHALL, J.,
filed a dissenting opinion, in which BRENNAN, BLACKMUN, and
STEVENS, JJ., joined, post,
p. 487 U. S.
Page 487 U. S. 83
CHIEF JUSTICE REHNQUIST delivered the opinion of the court.
During the selection of the jury in his capital murder trial,
petitioner Bobby Lynn Ross resorted to one of his peremptory
challenges to remove a juror whom the trial court should have
excused for cause under Witherspoon v. Illinois,
391 U. S. 510
(1968). He claims that, because of that fact, the Sixth and
Fourteenth Amendments to the United States Constitution require
reversal of his conviction and sentence of death. We conclude they
In the course of robbing a motel in Elk City, Oklahoma,
petitioner killed a police officer. Petitioner was charged with
first-degree murder, Okla.Stat., Tit. 21, § 701.7 (Supp.1987), a
capital offense, Okla.Stat., Tit. 21, § 701.9(A) (Supp.1987). By
statute, Oklahoma provides nine peremptory challenges to both
parties in capital trials. Okla.Stat., Tit. 22, § 655 (1981).
The jury selection began with the drawing of 12 names from the
150-person venire. Each of the 12 was examined individually by the
court and counsel. Prospective jurors not excused for cause after
the voir dire
were provisionally seated. If a prospective
juror was excused for cause, a replacement juror was called and
examined. After 12 jurors had been provisionally seated, the
parties exercised their peremptory challenges alternately,
beginning with the prosecution. When a juror was struck, a
replacement juror was immediately selected and examined in the
manner described above. Once a replacement was provisionally
seated, the trial court called for the exercise of a challenge by
the party whose turn it was. This procedure was repeated until each
side had exercised or waived its nine peremptory challenges.
Darrell Huling's name was drawn to replace the juror excused by
the defense with its fifth peremptory challenge. During voir
Huling initially indicated that he could vote to
recommend a life sentence if the circumstances were appropriate. On
further examination by defense counsel, Huling
Page 487 U. S. 84
declared that, if the jury found petitioner guilty, he would
vote to impose death automatically. Defense counsel moved to have
Huling removed for cause, arguing that Huling would not be able to
follow the law at the penalty phase. The trial court denied the
motion, and Huling was provisionally seated. The defense then
exercised its sixth peremptory challenge to remove Huling. The
defense ultimately used all nine of its challenges. The prosecution
used only five, waiving the remaining four.
None of the 12 jurors who actually sat and decided petitioner's
fate was challenged for cause by defense counsel. Petitioner is
black; the victim was white. At the close of jury selection, the
"to the composition of the twelve people, in that there were no
black people called as jurymen in this case, and the defendant
feels he's denied a fair and impartial trial by his peers."
App. 25. The trial court overruled the objection, and the trial
After two days of evidence, the parties gave closing arguments,
the trial court instructed the jury, and deliberations began. The
jury found petitioner guilty of first-degree murder. [Footnote 1
] Following the presentation of
evidence and arguments at a separate sentencing proceeding, the
same jury found five aggravating circumstances, and sentenced
petitioner to death.
On appeal, the Oklahoma Court of Criminal Appeals rejected
petitioner's argument that the trial court had committed reversible
error in failing to excuse Huling for cause:
"The failure of the trial court to remove a prospective juror
who unequivocally states that he is unwilling to follow the law
during the penalty phase by considering a life sentence is error.
The record reflects that defense counsel challenged the prospective
juror for cause, and, when the court denied the challenge, defense
Page 487 U. S. 85
a peremptory challenge. All of [petitioner's] peremptory
challenges were subsequently used; but as there is nothing in the
record to show that any juror who sat on the trial was
objectionable, we are unable to discover any grounds for
, 120 (1986) (citations omitted). We granted certiorari, 482
U.S. 926 (1987), to consider the Sixth and Fourteenth Amendment
implications of the trial court's failure to remove Huling for
cause and petitioner's subsequent use of a peremptory challenge to
strike Huling. We now affirm.
In Wainwright v. Witt, 469 U.
(1985), the Court held that
"the proper standard for determining when a prospective juror
may be excused for cause because of his or her views on capital
punishment . . . is whether the juror's views would 'prevent or
substantially impair the performance of his duties as a juror in
accordance with his instructions and his oath.'"
at 469 U. S. 424
(quoting Adams v. Texas, 448 U. S. 38
448 U. S. 45
(1980)). The Oklahoma Court of Criminal Appeals found, 717 P.2d at
120, and the State concedes, Tr. of Rearg. 30, that Huling should
have been excused for cause, and that the trial court erred in
failing to do so. Petitioner contends that this error abridged both
his Sixth and Fourteenth Amendment right to an impartial jury and
his Fourteenth Amendment right to due process. We reject both
grounds offered by petitioner.
It is well settled that the Sixth and Fourteenth Amendments
guarantee a defendant on trial for his life the right to an
impartial jury. Witt, supra; Irvin v. Dowd, 366 U.
, 366 U. S. 722
(1961). Had Huling sat on the jury that ultimately sentenced
petitioner to death, and had petitioner properly preserved his
right to challenge the trial court's failure to remove Huling for
cause, the sentence would have to be overturned. Adams,
But Huling did not sit. Petitioner exercised a
peremptory challenge to remove him, and Huling
Page 487 U. S. 86
was thereby removed from the jury as effectively as if the trial
court had excused him for cause.
Any claim that the jury was not impartial, therefore, must focus
not on Huling, but on the jurors who ultimately sat. None of those
12 jurors, however, was challenged for cause by petitioner, and he
has never suggested that any of the 12 was not impartial.
"[T]he Constitution presupposes that a jury selected from a fair
cross-section of the community is impartial, regardless of the mix
of individual viewpoints actually represented on the jury, so long
as the jurors can conscientiously and properly carry out their
sworn duty to apply the law to the facts of the particular
Lockhart v. McCree, 476 U. S. 162
476 U. S. 184
(1986). Although at the close of jury selection petitioner did
assert that the jury was not fair and impartial, this claim was
based on the absence of blacks from the jury panel. Petitioner
neither presses that claim before this Court nor suggests that the
absence of blacks was in any way related to the failure to remove
Huling for cause. We conclude that petitioner has failed to
establish that the jury was not impartial.
In arguing that the trial court's error abridged his right to an
impartial jury, petitioner relies heavily upon Gray v.
Mississippi, 481 U. S. 648
(1987), but we think that case affords him no help. During the jury
selection in Gray,
the State used several of its 12
peremptory challenges to remove jurors opposed to the death penalty
whom the trial court should have excluded for cause under
481 U.S. at 481 U. S. 669
(POWELL, J., concurring in part and concurring in judgment);
at 481 U. S. 673
(SCALIA, J., dissenting, joined by REHNQUIST, C.J., and WHITE and
O'CONNOR, JJ.). After the State had exhausted all of its peremptory
challenges, a prospective juror, Mrs. H. C. Bounds, stated during
that, although she was opposed to the death
penalty, she could vote to impose it in appropriate circumstances.
Arguing that the previous "for cause" rulings had been erroneous,
the State asked the trial court to restore one of its
Page 487 U. S. 87
challenges so that it might remove Bounds. In an apparent
attempt to correct the earlier rulings, the trial court instead
excused Bounds for cause. The jury ultimately seated sentenced Gray
to death. A closely divided Court reversed Gray's sentence,
concluding that the removal of Bounds was erroneous under
and Witt, supra,
and that the error
could not be considered harmless. Gray, supra.
Petitioner relies heavily upon the Gray
"the relevant inquiry is 'whether the composition of the
jury panel as a whole
could possibly have been affected by
the trial court's error.'"
481 U.S. at 481 U. S. 665
(emphasis in original) (quoting Moore v. Estelle,
56, 58 (CA5) (specially concurring opinion), cert. denied,
458 U.S. 1111 (1982)). Petitioner points out that, had he not used
his sixth peremptory challenge to remove Huling, he could have
removed another juror, including one who ultimately sat on the
jury. Petitioner asserts, moreover, that, had he used his sixth
peremptory challenge differently, the prosecution may have
exercised its remaining peremptory challenges differently in
response, and consequently, the composition of the jury panel might
have changed significantly.
Although we agree that the failure to remove Huling may have
resulted in a jury panel different from that which would otherwise
have decided the case, we do not accept the argument that this
possibility mandates reversal. We decline to extend the rule of
beyond its context: the erroneous
exclusion" of a qualified juror in a capital
case. We think the broad language used by the Gray
is too sweeping to be applied literally, [Footnote 2
] and is best understood in
Page 487 U. S. 88
the context of the facts there involved. One of the principal
concerns animating the decision in Gray
was the inability
to know to a certainty whether the prosecution could and would have
used a peremptory challenge to remove the erroneously excused
juror. See Gray,
481 U.S. at 481 U. S. 665
at 485 U. S.
-670, and n. 2 (POWELL, J., concurring in part and
concurring in judgment). In the instant case, there is no need to
speculate whether Huling would have been removed absent the
erroneous ruling by the trial court; Huling was in fact removed,
and did not sit.
Petitioner was undoubtedly required to exercise a peremptory
challenge to cure the trial court's error. But we reject the notion
that the loss of a peremptory challenge constitutes a violation of
the constitutional right to an impartial jury. We have long
recognized that peremptory challenges are not of constitutional
dimension. Gray, supra,
at 481 U. S. 663
Swain v. Alabama, 380 U. S. 202
380 U. S. 219
(1965); Stilson v. United States, 250 U.
, 250 U. S. 586
(1919). They are a means to achieve the end of an impartial jury.
So long as the jury that sits is impartial, the fact that the
defendant had to use a peremptory challenge to achieve that result
does not mean the Sixth Amendment was violated. See Hopt v.
Utah, 120 U. S. 430
120 U. S. 436
(1887); Spies v. Illinois, 123 U.
] We conclude that no violation of petitioner's right to an
impartial jury occurred.
Relying largely on Logan v. Zimmerman Brush Co.,
455 U. S. 422
(1982), and Hicks v. Oklahoma, 447 U.
(1980), petitioner also argues that the trial
court's failure to
Page 487 U. S. 89
remove Huling for cause violated his Fourteenth Amendment right
to due process by arbitrarily depriving him of the full complement
of nine peremptory challenges allowed under Oklahoma law. We
disagree. It is true that we have previously stated that the right
to exercise peremptory challenges is "one of the most important
of the rights secured to the accused.'" Swain, supra, at
380 U. S. 219
(quoting Pointer v. United States, 151 U.
S. 396, 151 U. S. 408
(1894)). Indeed, the Swain Court cited a number of federal
cases and observed: "The denial or impairment of the right is
reversible error without a showing of prejudice." 380 U.S. at
380 U. S. 219.
But even assuming that the Constitution were to impose this same
rule in state criminal proceedings, petitioner's due process
challenge would nonetheless fail. Because peremptory challenges are
a creature of statute, and are not required by the Constitution,
Gray, supra, at 481 U. S. 663;
Swain, supra, at 380 U. S. 219,
it is for the State to determine the number of peremptory
challenges allowed and to define their purpose and the manner of
their exercise. Cf. Stilson, supra, at 250 U. S. 587;
Frazier v. United States, 335 U.
S. 497, 335 U. S. 505,
n. 11 (1948). As such, the "right" to peremptory challenges is
"denied or impaired" only if the defendant does not receive that
which state law provides.
It is a long-settled principle of Oklahoma law that a defendant
who disagrees with the trial court's ruling on a for-cause
challenge must, in order to preserve the claim that the ruling
deprived him of a fair trial, exercise a peremptory challenge to
remove the juror. Even then, the error is grounds for reversal only
if the defendant exhausts all peremptory challenges and an
incompetent juror is forced upon him. Ferrell v.
, 828 (Okla.Crim.App.1970); Stott v.
, 1064-1065 (Okla.Crim.App.1975). In McDonald v.
54 Okla.Crim. 161, 164-165, 15 P.2d 1092, 1094 (1932),
the court declared:
"If counsel believed any juror was pledged to return a verdict
imposing the death penalty, under the circumstances named, he
should have purged the jury by challenge.
Page 487 U. S. 90
He cannot speculate on the result of the jury's verdict by
consenting that the juror sit on the panel, and, if the verdict is
adverse, then assert he is disqualified."
Thus, although Oklahoma provides a capital defendant with nine
peremptory challenges, this grant is qualified by the requirement
that the defendant must use those challenges to cure erroneous
refusals by the trial court to excuse jurors for cause. We think
there is nothing arbitrary or irrational about such a requirement,
which subordinates the absolute freedom to use a peremptory
challenge as one wishes to the goal of empaneling an impartial
jury. Indeed, the concept of a peremptory challenge as a totally
freewheeling right unconstrained by any procedural requirement is
difficult to imagine. As pointed out by the dissenters in
at 380 U. S.
"This Court has sanctioned numerous incursions upon the right to
challenge peremptorily. Defendants may be tried together even
though the exercise by one of his right to challenge peremptorily
may deprive his codefendant of a juror he desires or may require
that codefendant to use his challenges in a way other than he
wishes. United States v. Marchant,
[12 Wheat. 480 (1827)]. A defendant may be required to exercise his
challenges prior to the State, so that some may be wasted on jurors
whom the State would have challenged. Pointer v. United
States, 151 U. S. 396
may regulate the number of peremptory challenges available to
defendants by statute, and may require codefendants to be treated
as a single defendant so that each has only a small portion of the
number of peremptories he would have if tried separately.
v. United States,
As required by Oklahoma law, petitioner exercised one of his
peremptory challenges to rectify the trial court's error, and
consequently he retained only eight peremptory challenges
Page 487 U. S. 91
to use in his unfettered discretion. But he received all that
Oklahoma law allowed him, and therefore his due process challenge
fails. [Footnote 4
Petitioner relies on Logan, 455 U.
(1982), and Hicks, 447 U.
(1980), to support his claim of a denial of due
process. The Logan
Court held that, because of the
arbitrary application of a limitations period, Logan had been
deprived of a state-provided cause of action in violation of due
process. In Hicks,
the Court overturned on due process
grounds the sentence imposed on Hicks because the sentence had not
been determined by the jury, as required by Oklahoma law. Here,
however, the requirement that the defendant use peremptory
challenges to cure trial court errors is established by Oklahoma
law, and petitioner received all that was due under Oklahoma law.
Although the trial court erred in failing to dismiss prospective
juror Huling for cause, the error did not deprive petitioner of an
impartial jury or of any interest provided by the State. "[T]he
Constitution entitles a criminal defendant to a fair trial, not a
perfect one." Delaware v. Van Arsdall, 475 U.
, 475 U. S. 681
Petitioner was also convicted of robbery with a firearm,
Okla.Stat., Tit. 21, § 801 (Supp.1987), and sentenced to 99 years'
imprisonment on that charge.
As the dissent in Gray
pointed out, the statement that
any error which affects the composition of the jury must result in
reversal defies literal application. 481 U.S. at 481 U. S. 678
(SCALIA, J., dissenting). If, after realizing its error, the trial
court in Gray
had dismissed the entire venire and started
anew, the composition of the jury would undoubtedly have been
affected by the original error. But the Gray
concedes that the trial court could have followed that course
without risking reversal. Id.
at 481 U. S.
-664, n. 13.
the petitioners were sentenced to death for
their participation in the killing of several police officers at
the Haymarket riot. Using a number of their peremptory challenges
to excuse jurors unsuccessfully challenged for cause, petitioners
eventually exhausted all of their peremptory challenges. See
Spies v. People,
122 Ill. 1, 256-257, 12 N.E. 865, 989 (1887).
Before this Court, petitioners argued they had been deprived of a
fair trial because numerous biased jurors had not been excused for
cause. The Court declined to examine the "for cause" rulings as to
the jurors who had been removed by petitioners. 123 U.S. at
123 U. S.
We need not decide the broader question whether, in the absence
of Oklahoma's limitation on the "right" to exercise peremptory
challenges, "a denial or impairment" of the exercise of peremptory
challenges occurs if the defendant uses one or more challenges to
remove jurors who should have been excused for cause. See Swain
v. Alabama, 380 U. S. 202
380 U. S. 219
(1965); cf. Spies v. Illinois, 123 U.
(1887); Stroud v. United States,
251 U. S. 380
251 U. S. 382
(1920), denying rehearing to 251 U. S.
No claim is made here that the trial court repeatedly and
deliberately misapplied the law in order to force petitioner to use
his peremptory challenges to correct these errors.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN, JUSTICE BLACKMUN,
and JUSTICE STEVENS join, dissenting.
A man's life is at stake. We should not be playing games. In
this case, everyone concedes that the trial judge could not
arbitrarily take away one of the defendant's peremptory
Page 487 U. S. 92
Yet, that is in effect exactly what happened here. I
Neither the State nor this Court disputes that the trial court
"erred" when it refused to strike juror Huling for cause from the
jury that sentenced petitioner Bobby Lynn Ross to death. Huling
twice stated during voir dire
that, if he were to find
Ross guilty of murder, he would automatically vote to impose the
death penalty; there is no question that Huling was not the fair
and impartial juror guaranteed to petitioner by the Sixth
Amendment. The Court concludes, however, that the trial court's
error does not require resentencing because it was "cure[d]" by the
defense's use of one of a limited number of peremptory challenges
to remove the biased juror. Ante
at 487 U. S. 88
believe that this conclusion is irreconcilable with this Court's
holding just last Term that a similar Sixth Amendment error in
capital jury selection requires resentencing if "the
composition of the jury panel as a whole could possibly
have been affected by the trial court's error.'" Gray v.
Mississippi, 481 U. S. 648,
481 U. S. 665
(1987), quoting Moore v. Estelle, 670 F.2d 56, 58 (CA5)
(specially concurring opinion), cert. denied, 458 U.S.
1111 (1982). The Court's attempt to distinguish Gray not
only fails to persuade, but also fails to protect petitioner's
Sixth Amendment right to an impartial jury by condoning a scheme
that penalizes the assertion of that right. I am convinced that
application of Gray's per se resentencing rule in this
case is the only course consistent with the Sixth
the trial court granted the State's motion to
strike for cause a juror who expressed some reservations about
capital punishment, but nonetheless stated that she could vote to
impose the death penalty in appropriate circumstances. The trial
court's exclusion of this qualified juror was Sixth Amendment error
under Witherspoon v. Illinois, 391 U.
(1968), and Wainwright v. Witt,
469 U. S. 412
(1985). The Gray
Court refused the State's invitation to
apply harmless error analysis to such an error. Specifically,
Page 487 U. S. 93
the Court rejected the argument that the State's retention of
unexercised peremptory challenges at the end of jury selection
indicated that the error was harmless because the State would have
removed the juror by peremptory challenge if the trial court had
denied its for-cause motion. In addition, the Court rejected the
argument that the error was an isolated incident without
prejudicial effect because the ultimate panel fairly represented
the community. The Court explained that the contingent nature of
the jury selection process "defies any attempt to establish that an
exclusion of a juror is
harmless." 481 U.S. at 481 U. S. 665
According to the Court, "the relevant inquiry is whether the
composition of the jury panel as a whole could possibly
have been affected by the trial court's error.'" Ibid.
(citation omitted). The Court recognized that its decision
established a per se rule requiring the vacation of a
death sentence imposed by a jury whose composition was affected by
Witherspoon error. 481 U.S. at 481 U.S. 660, 668.
The Court today unaccountably refuses to apply this per
rule in a case involving a similar Sixth Amendment error.
Here the trial court, rather than excusing a qualified juror,
refused to excuse a biased juror. The defense's attempt to correct
the court's error and preserve its Sixth Amendment claim deprived
it of a peremptory challenge. That deprivation "could possibly have
. . . affected" the composition of the jury panel under the
standard, because the defense might have used the
extra peremptory to remove another juror and because the loss of a
peremptory might have affected the defense's strategic use of its
remaining peremptories. See id.
at 481 U. S. 665
("A prosecutor with fewer peremptory challenges in hand may be
willing to accept certain jurors whom he would not accept given a
larger reserve of peremptories"). Even the Court acknowledges that
the defense's loss of a peremptory meets the Gray
at 487 U. S. 87
("[T]he failure to remove Huling may have resulted in a
Page 487 U. S. 94
jury panel different from that which would otherwise have
decided the case").
Indeed, the loss of a peremptory challenge in this case affected
the composition of the jury panel in precisely the same way as the
trial court's error in Gray
itself. In Gray
defendant was deprived of a juror who, although inexcusable for
cause, seemed to be sympathetic to the defense in that she had
expressed reservations about the death penalty. The defense in the
instant case was deprived of an opportunity to remove an otherwise
qualified juror whom it perceived to be sympathetic to the
prosecution. The defense's loss of a peremptory challenge thus
resulted in a "tribunal organized to return a verdict of
death'" in exactly the fashion we rejected so recently in
Gray. 481 U.S. at
481 U. S. 668, quoting Witherspoon, supra, at
391 U. S.
The Court attempts to distinguish Gray
in two ways.
First, the Court dismissively declares that the Gray
standard is "too sweeping to be applied literally." Ante
at 487 U. S. 87
The Court offers only one reason for narrowing Gray's
broad language: if any Sixth Amendment error that "could possibly
have . . . affected" the composition of the jury requires reversal,
a trial court could never dismiss the venire and start anew,
because the jury resulting from the new venire would necessarily be
different from the one that would have been empaneled in the
absence of the original error. Ante
at 487 U. S. 87
2. This argument misses the point of the Gray
Court did not hold that a defendant has the right
to any particular venire or panel; rather, the Court held that a
defendant has a right to a jury selection procedure untainted by
constitutional error. Because it is impossible to be sure that an
erroneous ruling by the trial court did not tilt the panel against
the defendant, a death sentence returned by such a panel cannot
stand. A wholly new venire does not pose the same problem of
"tilting" as the result of constitutional error. Thus, the Court is
simply wrong that the Gray
standard would prevent a trial
court from correcting an erroneous
Page 487 U. S. 95
ruling by starting anew. The Court's unwillingness to apply the
standard "literally" is without foundation.
Second, the Court attempts to limit Gray
distinguishing it factually from the instant case. The Court
correctly notes that
"[o]ne of the principal concerns animating the decision in
was the inability to know to a certainty whether the
prosecution could and would have used a peremptory challenge to
remove the erroneously excused juror."
at 487 U. S. 88
citing 481 U.S. at 481 U. S. 670
n. 2 (Powell, J., concurring in part and concurring in judgment).
The Court then attempts to distinguish the instant case as
"In the instant case, there is no need to speculate whether
Huling would have been removed absent the erroneous ruling by the
trial court; Huling was in fact removed, and did not sit."
at 487 U. S.
The Court again misses the point of the Gray
did not indicate that the use of
peremptory challenges always "cures" erroneous for-cause rulings.
Rather, the Gray
Court reasoned that, if it could be sure
that the prosecution would have excused the erroneously excused
juror by use of a peremptory challenge, and if it could be sure
that the composition of the jury panel would thereby be
to the jury that was empaneled as a result of the
error, then there would be no need for reversal. Because the Court
could not be certain of the former point, reversal was required. In
the instant case, although the Court can be sure that a peremptory
challenge was in fact employed in an attempt to cure the erroneous
for-cause ruling, the Court cannot be sure that the composition of
the jury panel was thereby unaffected -- as the Court itself
acknowledges. See ante
at 487 U. S. 87
Reversal is therefore required in the instant case as well, as the
very portion of Justice Powell's concurring opinion in
that is quoted by the Court clearly establishes:
"the only question is whether there is a reasonable doubt that
the composition of the venire would have been different as a
481 U.S. at 481 U. S. 670
Page 487 U. S. 96
The only argument that might successfully distinguish the
instant case from Gray
is implicit in the Court's holding,
although not expressly made. The Court leaves undisturbed
rule that constitutional error in jury selection
requires reversal if it changes the composition of the jury, but
the Court holds that reversal is not required if state law requires
a party to attempt to correct such error and this attempt leads to
a change in jury composition. Under this view, any change in the
composition of the jury wrought by the loss of a defense peremptory
in the instant case was the result not of the trial court's error,
but of the defense's attempt to cure that error pursuant to state
law; the defense's use of a peremptory challenge was an intervening
cause that broke the causal link between the trial court's error
and the change in jury composition.
This "intervening cause" argument does distinguish the instant
case from Gray
, but it engenders serious constitutional
problems of its own. The State's requirement that a defendant
employ a peremptory challenge in order to preserve a Sixth
Amendment claim arising from a trial court's erroneous for-cause
ruling burdens the defendant's exercise of his Sixth Amendment
right to a impartial jury. It is undisputed that petitioner had a
Sixth Amendment right to be sentenced by a jury on which juror
Huling did not sit. Yet the only way for petitioner to preserve
this right under state law was to give up one of a limited number
of peremptory challenges. We have emphasized that the ability to
exercise peremptory challenges is "one of the most important of the
rights secured to the accused," Pointer v. United States,
151 U. S. 396
151 U. S. 408
(1894), and that it "long has served the selection of an impartial
jury," Batson v. Kentucky, 476 U. S.
, 476 U. S. 99
22 (1986). It cannot seriously be questioned that the loss of a
peremptory challenge vis-a-vis
the prosecution burdens the
defense in pretrial proceedings.
A venerable line of this Court's precedents has held that
legislative schemes that unnecessarily burden the exercise of
Page 487 U. S. 97
federal constitutional rights cannot stand. Just a few examples
from the criminal context suffice to establish this principle. In
United States v. Jackson, 390 U.
(1968), the Court struck down a provision of the
Federal Kidnapping Act that rendered eligible for the death penalty
only defendants who invoked their right to trial by jury. The Court
recognized that Congress' goal in enacting the provision was
legitimate, but held that
"[w]hatever might be said of Congress' objectives, they cannot
be pursued by means that needlessly chill the exercise of basic
at 390 U. S. 582
And in Brooks v. Tennessee, 406 U.
(1972), the Court struck down a state law that
required a defendant who wished to testify on his own behalf to be
the first defense witness presented. We noted that the state law at
issue "exacts a price for [the defendant's] silence by keeping him
off the stand entirely unless he chooses to testify first,"
at 406 U. S. 610
and that it therefore "casts a heavy burden on a defendant's
otherwise unconditional right not to take the stand," id.
at 406 U. S.
The Court today ignores the clear dictates of these and other
similar cases by condoning a scheme in which a defendant must
surrender procedural parity with the prosecution in order to
preserve his Sixth Amendment right to an impartial jury. The Court
notes that "there is nothing arbitrary or irrational" about the
State's rule that a defendant must use a peremptory challenge to
cure an erroneous for-cause ruling, because the State has an
interest in preventing needless or frivolous appeals. Ante
at 487 U. S. 90
But the existence of a rational, rather than a punitive, reason for
a burdensome requirement is of little significance under our cases.
the State's interest in preventing the
defendant's testimony from being influenced by the testimony of
other defense witnesses was rational, but we found it insufficient
to override the defendant's right to remain silent at trial. 406
U.S. at 406 U. S. 611
And in Jackson,
we struck down a federal statutory
provision that was motivated by the legitimate interest
Page 487 U. S. 98
of permitting the death penalty to be imposed only upon the
recommendation of a jury, because Congress had other means
available to achieve that goal without burdening the exercise of
constitutional rights. 390 U.S. at 390 U. S.
-583. In the instant case, the State's desire to
prevent needless or frivolous appeals is insufficient to overcome
the right to an impartial adjudicator, which "goes to the very
integrity of the legal system." Gray
, 481 U.S. at
481 U. S. 668
Moreover, the State's concerns obviously could be addressed in
numerous other ways. See, e.g.,
Oklahoma Supreme Court
Code of Professional Responsibility, DR 1-102(A)(4) ("A lawyer
shall not . . . [e]ngage in conduct involving dishonesty, fraud,
deceit, or misrepresentation"). The burden on petitioner's Sixth
Amendment rights is thus both heavy and avoidable. Our cases
accordingly mandate the conclusion that the Oklahoma scheme cannot
The Court's failure to apply Gray's
rule of per
reversal in this case is not justified by any of the
Court's attempts to distinguish Gray.
The only argument
that might distinguish the instant case from Gray
condone an impermissible burden on the exercise of petitioner's
Sixth Amendment right to an impartial jury. Because I am convinced
that the Court's decision today cannot be squared with the Sixth
Amendment either under our recent analysis in Gray
other precedents, I dissent. I would reverse the judgment of the
Oklahoma Court of Criminal Appeals to the extent that it left
undisturbed the sentence of death.