use of a peremptory challenge in Washington

2021Although the court acknowledged that it “need not address” the issue of prejudice because it had found no error, it asserted that “the use of a peremptory challenge to remove a juror who should have been removed for cause ‘cures’ the error.” Id. at 64 (citing United States v. Tweed, 503 F.2d 1127 (7th Cir. 1974); State v. Dixon, 5 Or.

2019In State v. Latham, 100 Wn.2d 59, 64 , 667 P.2d 56 (1983), the court noted that “the use of a peremptory challenge to remove a juror who should have been removed for cause cures” any error and that “the defendant must show that the use of the peremptory challenge actually prejudiced his case.” (Internal quotations omitted.) The court explicitly declined to address whether a defendant is prejudiced by the use of a peremptory challenge on a juror who should have been excused for cause.

2020However, in State v. Jefferson, our Supreme Court held that an appellate court that reviews whether an objective observer could view race as a factor in the use of a peremptory challenge “stand[sJ in the same position as does the trial court, and [1 review[s] [de nov01 the record and the trial court’s conclusions.” 192 Wn.2d 225 , 249—50, 429 P.3d 467 (2018).~ The State argues that Jefferson does not apply because the trial court there made no findings on the “totality of the circumstances,” and “those issues do not appear to have been raised on appeal.” But Jefferson specifically states that,

2020However, in State v. Jefferson, our Supreme Court held that an appellate court that reviews whether an objective observer could view race as a factor in the use of a peremptory challenge “stand[sJ in the same position as does the trial court, and [1 review[s] [de nov01 the record and the trial court’s conclusions.” 192 Wn.2d 225 , 249—50, 429 P.3d 467 (2018).~ The State argues that Jefferson does not apply because the trial court there made no findings on the “totality of the circumstances,” and “those issues do not appear to have been raised on appeal.” But Jefferson specifically states that,

2026Under GR 37(c), a party or the court “may object to the use of a peremptory challenge to raise the issue of improper bias.” “After an objection has been raised, the party exercising a peremptory challenge is required to articulate its reasons for doing so.” State v. Listoe, 15 Wn.

2021App. 2d 308, 321 , 475 P.3d 534 (2020). 7 No. 37386-0-III State v. Orozco Under GR 37, a party or the court may object to the use of a peremptory challenge based on improper bias.

2021Although the court acknowledged that it “need not address” the issue of prejudice because it had found no error, it asserted that “the use of a peremptory challenge to remove a juror who should have been removed for cause ‘cures’ the error.” Id. at 64 (citing United States v. Tweed, 503 F.2d 1127 (7th Cir. 1974); State v. Dixon, 5 Or.

2021App. 113 , 481 P.2d 629 (1971)). -7- No. 81212-2-I/8 In early 2000, the United States Supreme Court decided United States v. Martinez-Salazar, holding that a defendant who elects to cure an erroneous denial of a for-cause challenge by exercising a peremptory challenge and “is subsequently convicted by a jury on which no biased juror sat . . . has not been deprived of any rule-based or constitutional right.” 528 U.S. 304, 307, 317 , 120 S. Ct. 774 , 145 L.

2019In State v. Rupe, 108 Wn.2d 734, 749 , 743 P.2d 210 (1987), the court again held that a defendant’s use of a peremptory challenge to remove a juror cures any error, and that a defendant would “have to show that he was prejudiced by having to use peremptory challenges to remove jurors who should have been removed for cause.” The court concluded that the defendant “cannot do so” because the defendant had been granted the number of peremptory challenges he was entitled to by the death penalty statute in effect at the time.

2019In State v. Rupe, 108 Wn.2d 734, 749 , 743 P.2d 210 (1987), the court again held that a defendant’s use of a peremptory challenge to remove a juror cures any error, and that a defendant would “have to show that he was prejudiced by having to use peremptory challenges to remove jurors who should have been removed for cause.” The court concluded that the defendant “cannot do so” because the defendant had been granted the number of peremptory challenges he was entitled to by the death penalty statute in effect at the time.

2025Under Batson, we give great deference to the trial court’s finding that the use of a peremptory challenge is “race- neutral.” Id. at 55-56 . 14 No. 103077-1 (Mungia, J., concurring in result) We acknowledged that Saintcalle did not present the opportunity to address these issues.

2024App. 1, 17 , 177 P.3d 1127 (2007).

2024Moreover, defense counsel’s decision to not challenge juror 12 for cause or through the use of a peremptory challenge can be considered “a legitimate tactical or strategic decision.” See State v. Johnston, 143 Wn.

2024App. 2d 747, 751 , 460 P.3d 225 (2020).4 Under GR 37(c), a party or the court “may object to the use of a peremptory challenge to raise the issue of 4 In State v. Tesfasilasye, 200 Wn.2d 345 , 355-56, 518 P.3d 193 (2022), our Supreme Court applied de novo review to a GR 37 challenge when “there were no actual findings of fact and none of the trial court’s determinations apparently depended on an assessment of credibility.” Because the parties do not assert that a different standard applies here, we review the trial court’s decision de novo.

2020However, in State v. Jefferson, our Supreme Court held that an appellate court that reviews whether an objective observer could view race as a factor in the use of a peremptory challenge “stand[sJ in the same position as does the trial court, and [1 review[s] [de nov01 the record and the trial court’s conclusions.” 192 Wn.2d 225 , 249—50, 429 P.3d 467 (2018).~ The State argues that Jefferson does not apply because the trial court there made no findings on the “totality of the circumstances,” and “those issues do not appear to have been raised on appeal.” But Jefferson specifically states that,