Cite as: 528 U. S. 304 (2000)
Souter, J., concurring
(1966) (per curiam) (a defendant is "entitled to be tried by 12, not 9 or even 10, impartial and unprejudiced jurors").4
* * *
We answer today the question left open in Ross and hold that a defendant's exercise of peremptory challenges pursuant to Rule 24(b) is not denied or impaired when the defendant chooses to use a peremptory challenge to remove a juror who should have been excused for cause. Martinez-Salazar and his codefendant were accorded 11 peremptory challenges, the exact number Rule 24(b) and (c) allowed in this case. Martinez-Salazar received precisely what federal law provided; he cannot tenably assert any violation of his Fifth Amendment right to due process. See Ross, 487 U. S., at 91. For the reasons stated, the judgment of the Court of Appeals for the Ninth Circuit is
Reversed.
Justice Souter, concurring.
I concur in the opinion of the Court. I write only to suggest that this case does not present the issue whether it is reversible error to refuse to afford a defendant a peremptory challenge beyond the maximum otherwise allowed, when he has used a peremptory challenge to cure an erroneous denial of a challenge for cause and when he shows that he would
4 Relying on language in Swain v. Alabama, 380 U. S. 202 (1965), as did the Court of Appeals in the decision below, Martinez-Salazar urges the Court to adopt a remedy of automatic reversal whenever a defendant's right to a certain number of peremptory challenges is substantially impaired. Brief for Respondent 29 (a " 'denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice' ") (quoting Swain, 380 U. S., at 219). Because we find no impairment, we do not decide in this case what the appropriate remedy for a substantial impairment would be. We note, however, that the oft-quoted language in Swain was not only unnecessary to the decision in that case—because Swain did not address any claim that a defendant had been denied a peremptory challenge—but was founded on a series of our early cases decided long before the adoption of harmless-error review.
317
Page: Index Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 NextLast modified: October 4, 2007