Update: On May 27,2020, the Supreme Court of Ohio handed down a merit decision in this case.  Read the analysis here.

Read an analysis of the oral argument here.

On February 11, 2020, the Supreme Court of Ohio will hear oral argument in State of Ohio v. Seante Jones, 2019-0187. At issue in this case is, where the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, whether that circumstance constitutes structural error requiring automatic reversal of a conviction, or whether the defendant-appellant is required to demonstrate that prejudice has resulted from the error. The court accepted the case on conflict certification.

Case Background

Seante Jones was charged with petty theft under R.C. 2913.02(A)(1). During the empaneling of the jury, both the State and Jones used or waived all their allotted peremptory challenges. After Jones and the State accepted the jury, but before the panel was sworn in, the State claimed that it had not been given the opportunity to use its last peremptory challenge. Hamilton County Municipal Court Judge Ted Berry agreed and erroneously permitted the State to use an additional peremptory challenge to excuse one of the jurors. Judge Berry did not allow Jones to respond in turn with his own peremptory challenge.

The jury found Jones not guilty of theft, but guilty of complicity. Jones was sentenced to 180 days in jail with all but three days suspended, a $200 fine, courts costs, and six months of community service.

The Appeal

In a unanimous decision, written by Judge Penelope R. Cunningham, and joined by Judges Beth A. Myers and Charles M. Miller, the First District affirmed the trial court’s judgment. In so holding, the court of appeals recognized that the trial court erred in granting the State an additional peremptory challenge. The court ruled that the error was not a structural error because the error did not involve a constitutional right. Therefore, the court held that Jones must show that actual prejudice resulted from the trial court’s error before his conviction could be reversed. Because Jones could not demonstrate such prejudice, the First District upheld Jones’conviction.

The First District certified a conflict between its decision and the Tenth District’s opinion in State v. Holloway, 129 Ohio App.3d 790  (10th Dist. 1998).

Votes to Accept the Case

Yes: Chief Justice O’Connor and Justices Fischer, French, and Stewart

No: Justices Kennedy, DeWine, and Donnelly

Certified Conflict Question

Where the state is permitted to exercise more than its allotted number of peremptory challenges in a criminal prosecution, does that circumstance constitute structural error requiring automatic reversal of a conviction, or is the defendant-appellant required to demonstrate that prejudice has resulted from the error?

Certified Conflict Case

State v. Holloway, 129 Ohio App.3d 790, (10th Dist. 1998) (“[A]s a matter of law, [a] defendant [is] not required to make a showing of actual prejudice where the state is granted an ‘extra’ peremptory challenge.”)

Key Statutes and Precedent

Crim.R. 24 (All parties must receive the same number of peremptory challenges.)

Crim.R. 52(A) (“Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.”)

State v. Bohannon, 64 Ohio App. 431 (1st Dist. 1940) (When a trial court errs by extending additional peremptory challenges to the State, such an error requires reversal only if the defendant shows that prejudice resulted from that error.)

State v. Greer, 39 Ohio St.3d 236 (1988) (There is no federal or state constitutional requirement that peremptory challenges be provided in a trial. The right to peremptory challenges is controlled by Crim.R. 24.)

State v. Murphy, 91 Ohio St.3d 516 (2001) (A defendant has a right to an impartial jury, and a “juror’s erroneous excusal does not compromise the jury’s impartiality.”)

State v. Reynolds, 80 Ohio St.3d 670 (1998) (Peremptory challenges allow a defendant and the State to freely dismiss potential jurors for any reason—except for illegitimate reasons such as race or gender.)

State v. Jackson, 92 Ohio St.3d 436 (2001) (A trial court’s error in allowing alternate jurors to remain during jury deliberation, which violated former Crim.R. 24(F), did not warrant automatic reversal.)

State v. Fischer, 2003-Ohio-2761 (Before a reviewing court may correct a trial court’s error, the reviewing court must first determine whether an error occurred. Next, the reviewing court must analyze the trial court record to determine whether the error was prejudicial and affected the outcome of the trial. Structural errors mandate automatic reversal.)

State v. Perry, 2004-Ohio-297 (When determining whether an alleged error is structural, the threshold inquiry is whether the error involves a deprivation of a constitutional right.)

Rivera v. Illinois, 556 U.S. 148 (2009) (An error is structural when the error necessarily renders the trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence.)

United States v. Davila, 569 U.S. 597 (2013) (The “very limited class of errors” that have been deemed structural include denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt.)

State v. Clinton, 2017-Ohio-9423 (A structural error is a constitutional defect that affects the framework within which the trial proceeds, rather than simply being an error in the trial process itself.)

Jones’ Argument

Jones’ criminal conviction is automatically reversible because the State exercised more than its allotted number of peremptory challenges during the impaneling of the jury. Crim.R. 24 mandates that all parties in a criminal case receive the same number of peremptory challenges. The trial court erred by granting an additional peremptory challenge to the State, without allowing Jones to respond with his own peremptory challenge.

The trial court’s error was a structural error, warranting automatic reversal. To constitute a structural error, the error must involve a constitutional right and render the trial fundamentally unfair or an unreliable vehicle for determining a defendant’s guilt or innocence. While the mistaken denial of a peremptory challenge has not been recognized as structural error as a matter of federal constitutional law, courts are free to do so as a matter of state law.

Article I Sections 5 and 10, of the Ohio Constitution provide a defendant with a constitutional right to a trial by an impartial jury. An impartial jury is unbiased and unprejudiced. The only way that a jury’s bias can be detected and eliminated is during the empaneling of the jury. Granting the State an additional peremptory challenge gave the State an unfair advantage in shaping the jury and jeopardized Jones’ chance of receiving a fully impartial jury. This unfair advantage directly implicated Jones’ constitutional right to an impartial jury.

Jones’ constitutional right to due process under the Fifth Amendment was also violated. Jones was deprived of his due process rights by not being able to predict or react to the State’s use of an additional peremptory challenge.

The trial court’s error rendered the trial fundamentally unfair and an unreliable vehicle for determining Jones’ guilt or innocence. Specifically, affording an additional peremptory challenge to the State unfairly skewed the trial process in favor of the State. Due to the error, the jury’s composition was improperly, permanently, and irreparably affected throughout the trial. This effect on the jury benefited the State and disadvantaged Jones.

The right to peremptory challenges is one of the most important rights that belongs to a defendant and is widely believed to be a necessary part of the defendant’s right to trial by jury. This is a significant right which the Ohio Constitution recognizes and protects.

Even if the right to peremptory challenges is not a constitutional right, the trial court’s error should still be automatically reversed. When the right to exercise a peremptory challenge is impaired, Ohio courts have traditionally required automatic reversal, without requiring a showing of prejudice. Impairing such a right is a significant error which renders the entire trial unfair because the jury’s composition is affected. The injustice occurs during the impaneling of the jury, which is the process that parties use to ensure an impartial jury.

The trial court’s error cannot be subjected to the traditional harmless error analysis because it is almost impossible to determine whether granting the State an additional peremptory challenge was harmless enough to warrant affirming the conviction. The only way to adequately protect the defendant when such an error occurs is to automatically reverse the defendant’s conviction, without the requirement of prejudice.

 State’s Argument

Jones’ conviction should not be automatically reversed because the trial court’s error was not a structural error. Additionally, Jones cannot show that he suffered prejudice due to the trial court’s error. Therefore, Jones’s conviction should be affirmed.

A structural error involves the deprivation of a constitutional right and necessarily renders a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence. If an error is structural, then the trial verdict must be automatically reversed.  If an error is not structural, then the verdict is subject to harmless error review under Crim.R. 52(A).

The threshold question when classifying an error as structural or not structural is whether the error involves the deprivation of a constitutional right.  This Court has already determined that there is no federal or state constitutional right to peremptory challenges during trial.

The Ohio Constitution guarantees only the right to be tried by an impartial jury.  The number of peremptory challenges allowed is a matter of procedure. Although the trial court’s error resulted in a different jury panel than would have otherwise decided the case, courts have been clear that a party has no right to have any particular juror on a panel. Additionally, a juror’s erroneous excusal does not compromise the jury’s impartiality.

This Court should follow the lead of several other courts, which have held that errors involving peremptory challenges at trial are not structural errors, but rather are subject to harmless error review. The Supreme Court of the United States and at least twenty-nine state courts do not automatically reverse a decision when a trial court erroneously forces a defendant to use a peremptory challenge. Instead, such courts require the defendant to show prejudice—namely, that a biased juror sat on the jury— to receive appellate relief.

Additionally, the court in State v. Holloway—the conflict case—never held that being deprived of the right to a peremptory challenge was a deprivation of a constitutional right.

Even if this Court decides that the right to peremptory challenges is a constitutional right, the erroneous granting of an additional peremptory challenge to the State does not necessarily render the trial fundamentally unfair or an unreliable vehicle for determining Jones’ guilt or innocence. Indeed, the Supreme Court of the United States has recognized that many constitutional errors are harmless. The jury cannot be consider biased simply because the jury panel was different from that which otherwise would have decided the case or because a juror was erroneously excused.

Student Contributor: Maria Ruwe