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Peremptorily Challenged

By Judy Holzer Hersher
This article appears on Page 7

      Setting the number of peremptory challenges in a criminal trial is fairly straightforward. It requires the application of Code of Civil Procedure Section 231(a) and (b) to the type of charges alleged in the information at the time of trial, in light of the number of defendants being "jointly tried." In contrast, setting the number of peremptory challenges in all but the most basic two-party civil case is more complex and offers greater latitude to the trial judge in setting the number for each identified "side."
      The objective of this article and self-study test is to familiarize readers with the statutes and cases that set the number of peremptory challenges in both criminal and civil jury trials, including those for alternate jurors, and to identify the factors that attorneys and judges should consider.

      Criminal Jury Trials
      The right to exercise peremptory challenges is a state-created liberty interest, and the number of challenges, other than for cause, has been held to rest clearly within the purview of the state Legislature. As a result, the number of peremptory challenges available to a civil or criminal party can be changed at any time by the Legislature. People v. Wheeler, 22 Cal.3d 258 (1978).
      In criminal trials, Section 231(a) and (b) of the Code of Civil Procedure speak in terms of a defendant or defendants who are "jointly tried." By its express terms, the statute assumes that only one jury will decide the guilt or innocence of one or more individuals before it. The law draws a clear line between offenses punishable with a maximum term of imprisonment of 90 days or less and those with a maximum term greater than 90 days.
      When the penalty is 90 days or less, the defendant and the prosecution are each entitled to six challenges. If two or more defendants are tried before the same jury (jointly tried), the six challenges must be exercised jointly. However, each defendant is entitled to four additional challenges, which he or she may exercise in his or her best interest. To make things fair to both the prosecution and the defendants, the total number of challenges on the defense side must equal the total number of challenges on the prosecution side. Code of Civil Procedure Section 231(b).
      Thus, with two defendants for whom the maximum term of imprisonment is 90 days or less, the prosecution has 14 challenges and the defense has 14 challenges to be shared as follows: six exercised jointly and four exercised independently by each defendant. When there are three defendants, the number jumps to 18 for the prosecution and 18 for the defense, six exercised jointly and four exercised independently for each of the three defendants.
      For all misdemeanors that carry a possible sentence greater than 90 days and for all felonies except those punishable by death or life in prison, the prosecution and the defendant are each entitled to 10 challenges. When two or more defendants are tried before the same jury - that is, jointly tried - the 10 challenges are exercised jointly, but each defendant is entitled to an additional five challenges that he or she may exercise independently of the other defendant(s). Again, the prosecution's total number of available peremptory challenges must be equal to the total number of challenges for all defendants. Thus, if there are two defendants, the prosecution's peremptory challenges total 20, which is equal to the total of challenges of all defendants (10 plus five and five). Code of Civil Procedure Section 231(a).
      When the death penalty or life in prison is implicated, the defendant is entitled to 20, and the prosecution is entitled to 20. Section 231(a). If two or more defendants are tried jointly before a jury on these offenses, then together the defendants may jointly exercise up to 20 challenges, and each defendant gets an additional five challenges to exercise in his or her own best interest. Importantly, the charge carrying life in prison must be implicated by a single offense. A defendant is not entitled to exercise 20 challenges simply because conviction of multiple charged offenses may result in an aggregate de facto life sentence. People v. Brown, 42 Cal.App.4th 461 (1996).
      Unlike in civil jury trials, Section 231(a) and (b) does not allow other jointly tried defendants to claim for their personal use any unused challenges of another defendant. Further, the requirement for "joint exercise" of challenges in all classes of criminal cases has been upheld against various constitutional challenges and under circumstances in which jointly tried defendants are pointing fingers at each other. This section controls even where the number of challenges is less in a jointly tried life imprisonment or death case than in a trial in which multiple defendants are tried before separate juries. See, for example, People v. Jones, 17 Cal.4th 279 (1998); People v. Ainsworth, 45 Cal.3d 984 (1988). These same authorities allow a judge, in the interest of justice, to increase the number of joint or individual challenges in order to ensure a fair trial after motion and hearing by any defendant.

      Civil Jury Trials
      The touchstone for setting the number of peremptory challenges in the criminal arena is the total number of defendants jointly tried. In the civil context, it is the number of "sides." This is a concept that does not necessarily equate to the number of parties in the case.
      Also, civil trials may have multiple plaintiffs and defendants, as well as several additional parties brought in by way of cross-action. Certain cases also may involve others involved by way of interpleader, or those whose positions in law or equity may change as the result of a particular lawsuit. Each of these people is considered a party. In some instances, some parties may or may not participate in the jury trial; they may be "severed," and their causes of actions or liability or responsibility may be saved for a later day before the court, as opposed to a jury. Setting the number of peremptory challenges in a civil trial therefore requires balancing a number of important factors and may result in an unequal distribution of challenges among all parties.
      In the most basic civil trial - one plaintiff and one defendant - Section 231(c) sets the number of challenges for each side at six. If there are more than two named parties, the court is directed to "divide" the parties into two or more sides according to their respective interests in the issues. This calls on the court to examine the entire state of the pleadings before it, as well as available remedies, witness alignments etc., to determine how many sides are actually trying the case. In some instances, multiple cross-actions do not necessarily increase the number of actual sides. It is the substance of the issues that will be faced by the trier of fact that is the focus of the relevant inquiry.
      Among the factors a judge considers are who are the parties; are there theories of alter ego or respondeat superior; what are the causes of action; what kinds of damages are sought and against whom; what is the nature of the cross-actions, if any - do they simply raise an affirmative defense or do they raise new contested matters; are there shared positions on key issues in the case; are there any articulated party alignments in trial strategy; whether certain parties have jointly hired or paid experts or agreed to examine witnesses through one attorney only; and the legal theories presented by the individual parties.
      Additionally, a judge must consider whether any matter has been bifurcated or severed; whether the jury will be called on to answer special interrogatories and, if so, the nature of the questions; is there joint and several liability, are punitive damages at stake for some or all of the defendants; and is it possible or likely that one party may be able to escape liability on the basis of nonsuit or directed verdict. Finally, the bench officer could consider who may be required to indemnify whom, either by way of contract or application of law, and whether any party's interest is subrogated to any other party's interest. The above list is illustrative only and by no means exhaustive.
      The default number of assigned peremptory challenges per side is set by statute at eight, to be divided "as nearly equal as possible." Section 231(c). Since eight is an even number, any side that has an odd number of parties, for example, three defendants, makes it impossible to divide the challenges equally unless, after a review of the issues in the case, the judge can justify identifying two or more defendants, for example, as really one side.
      One example of this circumstance is a husband and wife both identified as defendants, since the property or liability is a community property responsibility. Another example is the parties jointly and severally liable for all portions of a judgment. This is to be contrasted to when portions of a judgment may be several and not joint, that is, special versus general damages in a personal injury lawsuit, or the possible imposition of punitive damages to one party and not another, or where liability, through action of law or the facts, transfers 100 percent of responsibility from the shoulders of one defendant to another. Other examples that require special consideration include circumstances in which a corporation and an officer or directors of a company are named as parties or a corporation and an employee, as well as just complex cases.
      Sometimes, however, the interests of justice require that more than eight challenges be assigned per side because of the diverse interests or complexities of the case or because of the total number of parties on a side. One such example may be construction defect cases, which may involve dozens of subcontractors. In this instance, Section 231 permits the setting of additional challenges as deemed appropriate.
      As in criminal cases, however, the total number of peremptory challenges on one side of the table cannot exceed the aggregate number of peremptory challenges of the other side. So, if three defendants are granted four challenges each for a total number of 12 defense challenges, the plaintiff "side" also must have 12 challenges. Although the above examples discuss apportionment challenges among defendants, the same rules apply when there is a diversity of interest between plaintiffs.
      The statute specifically allows for any number of peremptory challenges granted to a side to be passed or given voluntarily to any other party on the same side that wants to use that challenge. A further distinction between criminal and civil trials is that none of the civil peremptory challenges need to be exercised jointly, unless the bench officer, in his or her discretion, so states. The judge is free to fashion the use of additional challenges to individual or joint parties "as the interest of justice requires." Section 231(c).

      Alternate Jurors
      The judge is empowered to select alternate jurors when the trial likely will be long or the parties stipulate to their selection and number. The total number of alternate jurors selected to serve in a civil or criminal case is up to the discretion of the trial judge and must be articulated on the record. Section 234. The rule governing the selection of alternate jurors for civil and criminal trials is the same and is established by statute.
      There is one challenge per side in a civil case for each sworn alternate. Each criminal defendant is granted a peremptory challenge for each sworn alternate. So in a criminal trial, if two or more criminal defendants are jointly tried, each defendant is granted one peremptory challenge for each selected alternate. Section 234.
      Judy Holzer Hersher is a Sacramento County Superior Court judge.

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