Ark. Code Ann. § 16-33-305 (2026)

Case Notes

In General.

There is no constitutional right to peremptory challenges. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

Although defendant was entitled to eight peremptory charges and the trial court erred by not requiring the state to prove purposeful discrimination after defendant gave race neutral reasons for the strikes, defendant's conviction was affirmed due to his failure to mount proper arguments on appeal. Childs v. State, 95 Ark. App. 343, 237 S.W.3d 116 (2006).

Defendant's argument that the trial court erred in denying defendant additional peremptory challenges was moot because defendant did not use all of the challenges he was allotted by statute. Tarver v. State, 2018 Ark. 202, 547 S.W.3d 689 (2018).

Burden of Proof.

In order to establish an equal protection violation, a defendant must establish a prima facie case of purposeful discrimination in the selection of the jury panel by showing that the prosecutor exercised peremptory challenges to remove members of a cognizable racial group from the venire, and that the facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the veniremen from the petit jury on account of their race; after a defendant establishes a prima facie case, the burden shifts to the government to articulate a neutral explanation related to the particular case to be tried. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

The mere articulation of a nondiscriminatory reason is not always sufficient for establishing a lack of purposeful discrimination; the court should look at all relevant circumstances to determine if the articulated reason is pretextual. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Challenge Precluded.

In a driving while intoxicated case, appellant was unable to challenge the jurors on the basis of bias because appellant did not object at the end of the selection process, and there was no evidence that appellant was forced to accept a juror after having exhausted her three peremptory challenges. Carruth v. State, 2012 Ark. App. 305 (2012), modified, 2012 Ark. App. 305 (2012).

Challenges for Cause.

Where the defendant claimed that he was forced to exercise two of his peremptory challenges to exclude two jurors who should have been excluded for cause, but he made no such record at the close of the jury voir dire, the defendant did not present any possible basis for finding two other jurors that the defendant was forced to accept to have been objectionable. Watson v. State, 289 Ark. 138, 709 S.W.2d 817 (1986).

Discrimination.

Prima facie case of purposeful discrimination may be made by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose, demonstrating total or seriously disproportionate exclusion of Negroes from jury venires, or showing a pattern of strikes, or questions and statements, by a prosecuting attorney during voir dire. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998)(But see Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990)) See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Where all of state's peremptory challenges were used to exclude black people and state's explanation was unsatisfactory, state was found to have intentionally used its peremptory challenges to keep black people from the jury. Ward v. State, 293 Ark. 88, 733 S.W.2d 728 (1987), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998). (But see Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990)) See also MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

The presence of minority members on the jury, while by no means determinative of the question of whether discrimination occurred, is of some significance. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Where black jurors were seated on the jury, the prosecutor still had peremptory challenges remaining, and number of black persons serving on the jury was greater than the number struck by the prosecutor, defendant failed to establish a prima facie case of discrimination. Thompson v. State, 301 Ark. 488, 785 S.W.2d 29 (1990).

Upon a showing by a defendant of circumstances which raise an inference that the prosecutor exercised one or more of his peremptory challenges to exclude venire persons from the jury on account of race, the burden then shifts to the state to establish that the peremptory strike(s) were for racially neutral reasons. The trial court shall then determine from all relevant circumstances the sufficiency of the racially neutral explanation. Only if the state's explanation appears insufficient, must the trial court then conduct a sensitive inquiry into the basis for each of the challenges by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

The standard of review for reversal of a trial court's evaluation of the sufficiency of the state's racially neutral explanation of alleged discrimination must test whether the court's findings are clearly against a preponderance of the evidence. In every instance, however, the court shall state, in response to the defendant's objections, its ruling as to the sufficiency or insufficiency of the racially neutral explanation provided by the state. Colbert v. State, 304 Ark. 250, 801 S.W.2d 643 (1990), overruled, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998), overruled in part, MacKintrush v. State, 334 Ark. 390, 978 S.W.2d 293 (1998).

Both in this case and in Miller v. Lockhart, 861 F. Supp. 1425 (E.D. Ark. 1994), the prosecutor consistently and systematically excluded African-Americans from participating as jurors through the use of peremptory challenges. Ford v. Lockhart, 861 F. Supp. 1447 (E.D. Ark. 1994), aff'd, Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

The Equal Protection Clause forbids a prosecutor from using peremptory challenges to exclude otherwise qualified persons from the petit jury solely on account of their race. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Habeas corpus petitioner established, at his state trial, a prima facie case of purposeful racial discrimination in the jury selection process and established that the state failed to articulate a believable neutral explanation for its strikes, thus violating petitioner's rights under the Equal Protection Clause. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

In defendant's trial for capital murder, the trial court erred in sustaining the State's Batson objection, where the State argued that defendant was using his peremptory challenges to strike jurors solely on the basis of race, because the State did not prove purposeful discriminatory intent, and because defendant offered race-neutral grounds for potential prejudice by those jurors; the trial court also erred in forcing defendant to accept at least one juror that should have been excused for cause. Holder v. State, 354 Ark. 364, 124 S.W.3d 439 (2003).

—Standard of Review.

A constitutional violation involving the selection of jurors in a racially discriminatory manner is a “structural defect” in the trial mechanism which cannot be subjected to a harmless error analysis. Ford v. Norris, 67 F.3d 162 (8th Cir. 1995).

Examination.

There was no error in a felony case whereby prospective jurors were questioned voir dire and subjected to challenges for cause and peremptory challenges two jurors at a time, as long as the state and the defendant were allowed to examine jurors individually and the state was required to exercise its peremptory challenges first. Chenowith v. State, 291 Ark. 372, 724 S.W.2d 488 (Ark. 1987).

The practice of allowing jurors to socialize with prosecutors and discuss the intricate interaction that occurs amongst jurors during deliberations, when the panel is still being used and the prosecutor can use such information in its selection of jurors in future cases, is troubling; the state certainly cannot rely upon such secret and undocumented, nebulous hearsay, referred to simply as “information,” as a justification for the exercising of peremptory strikes against a cognizable racial group when the record discloses no other significant nonracial distinctions between the jurors stricken and the jurors accepted. Devose v. Norris, 867 F. Supp. 836 (E.D. Ark. 1994), aff'd in part, reversed in part, 53 F.3d 201 (8th Cir. Ark. 1995).

Explanation Unnecessary.

Where jurors were not excused for cause by the court but were peremptorily stricken by the state, no explanation was necessary as to why a potential juror was being excused. Hill v. State, 275 Ark. 71, 628 S.W.2d 284 (1982), cert. denied, Hill v. Arkansas, 459 U.S. 882, 103 S. Ct. 180 (1982).

No stated reason is necessary in exercising peremptory challenges. Grigsby v. Mabry, 758 F.2d 226 (8th Cir. Ark. 1985).

Joinder.

The appellant, although jointly indicted for homicide with other defendants, had the right, upon request, to a separate trial, in which event he would have been individually entitled to exercise the right to allotted number of peremptory challenges in selecting a jury; but not having asked to sever, and having consented to a joint trial, the defense only had the right to exercise the statutory number of challenges without regard to the number of persons on trial as defendants. Hearne v. State, 121 Ark. 460, 181 S.W. 291 (1915) (decision under prior law).

Number of Challenges.

Where the accused, before the arraignment, had exercised some of his challenges, he was entitled thereafter only to the number of additional challenges necessary to make up the quota of challenges allowed to him by statute. Herring v. State, 170 Ark. 352, 280 S.W. 353 (1926) (decision under prior law).

Defendant charged with capital offense was entitled to number of challenges allotted for capital offenses even though the state waived the death penalty. Tillman v. State, 251 Ark. 896, 475 S.W.2d 529 (1972) (decision prior to 1981 amendment).

Trial judge may not increase the number of peremptory challenges in a noncapitol felony case beyond the eight allowed under subsection (b). Logan v. State, 300 Ark. 35, 776 S.W.2d 341 (1989).

When more than one defendant is being tried for capital murder, the number of peremptory challenges allotted to a side remains at twelve. Ruiz v. Norris, 868 F. Supp. 1471 (E.D. Ark. 1994), aff'd, 71 F.3d 1404 (8th Cir. 1995).

In an assault case, defendant preserved a jury selection error relating to the number of peremptory challenges under this section and the Sixth Amendment because the basis of defendant's motion was clear from the context and the arguments presented; however, no reversal or mistrial was requried because defendant failed to raise an objection until after the trial had started, and there was no prejudice because the objectionable jurors did not participate in the verdict. Smith v. State, 90 Ark. App. 261, 205 S.W.3d 173 (2005).

Cited: O'Neal v. State, 195 Ark. 357, 112 S.W.2d 615 (1938); Bowen v. State, 205 Ark. 380, 168 S.W.2d 836 (1943); Washington v. State, 213 Ark. 218, 210 S.W.2d 307; Edens v. State, 235 Ark. 178, 359 S.W.2d 432 (1962); Trotter v. State, 237 Ark. 820, 377 S.W.2d 14 (1964); Stewart v. Stephens, 244 F. Supp. 982 (E.D. Ark. 1965); Brown v. State, 239 Ark. 909, 395 S.W.2d 344, 1965 Ark. LEXIS 1108 (1965); Pickens v. State, 6 Ark. App. 58, 638 S.W.2d 682 (1982); Miller v. State, 8 Ark. App. 165, 649 S.W.2d 407, 1983 Ark. App. LEXIS 806 (1983); Gardner v. State, 296 Ark. 41, 754 S.W.2d 518 (1988); Franklin v. State, 314 Ark. 329, 863 S.W.2d 268 (1993).