United States v. Martinez-Salazar
The Supreme Court ruled that a criminal defendant's rights are not violated when he uses one of his peremptory jury strikes to remove a juror the trial judge wrongly refused to excuse for cause, so long as he still gets the full number of strikes the law promises him.
The decision resolves a split among federal appeals courts and rejects the Ninth Circuit's rule that such judicial errors automatically require a new trial, instead holding that a defendant who chooses to fix the problem himself has gotten everything the law entitles him to.
“A hard choice is not the same as no choice.”
The Court's central point that facing a difficult decision does not mean a right was taken away.
How it got here: The Ninth Circuit ruled the judge's error forced a curative peremptory strike and required automatic reversal; the government asked the Supreme Court to review that ruling.
The Case in Depth
What happened
Abel Martinez-Salazar and a codefendant faced federal drug and weapons charges in Arizona. During jury selection, a prospective juror named Don Gilbert said he would likely favor the prosecution. The trial judge refused to remove Gilbert for cause, so Martinez-Salazar used one of his peremptory strikes to remove Gilbert instead, and later exhausted all his remaining strikes before being convicted on all counts.
The question before the Court
If a judge wrongly refuses to remove a biased-seeming juror for cause, and the defendant then uses one of his own peremptory strikes to remove that juror instead, has his right to a fair trial been violated?
The Court's answer
No — the defendant's rights were not violated. The Court held that Martinez-Salazar received and used all 11 peremptory strikes federal rules gave him (10 for the regular jury, 1 for an alternate), so choosing to spend one of those strikes removing a juror the judge should have excused for cause did not deprive him of anything the law promised. A difficult choice between two lawful options is not the same as losing a right.
Because no biased juror actually sat on the jury that convicted him, and he got the exact number of strikes Rule 24(b) guarantees, the Court found no due process violation and no basis for the automatic reversal the Ninth Circuit had ordered.
Curious how the Court got there? See the step-by-step legal reasoning →
Why it matters
Criminal defendants nationwide will not automatically win new trials just because a judge made a mistake on a for-cause juror challenge, as long as they still received their full allotment of peremptory strikes. Trial judges facing fast-paced jury selection can make cause rulings without fear that an error alone will force a retrial, so long as no biased juror actually sits on the final jury.
What changes now
This is a final merits decision resolving the specific question left open in Ross v. Oklahoma. The Ninth Circuit's automatic-reversal rule is rejected, and Martinez-Salazar's conviction stands as affirmed by this reversal of the appeals court's ruling. The Court left open — without deciding — whether a defendant who does not use a curative strike could later challenge the seated juror, and what remedy would apply if a defendant's peremptory strikes were genuinely reduced below the number the law guarantees.
What this does not decide
The Court did not decide whether a defendant who leaves an objectionable juror on the jury (rather than striking him) can still challenge that juror's presence on appeal, nor did it decide what remedy would apply if a judge deliberately misapplied the law to force a curative strike, or if a truly biased juror actually sat on the jury.
Concurrences and dissents
Concurrence — Justice Souter
Justice Souter joined the majority opinion in full but wrote separately to flag a narrower unresolved issue: whether it would be reversible error to deny a defendant an extra peremptory strike beyond the normal maximum when he used one curatively and showed he would have used it against another juror for ordinary reasons. He noted Martinez-Salazar never made that showing or asked for a makeup strike.
Concurrence — Justice Scalia
Justice Scalia, joined by Justice Kennedy, agreed the defendant got all the peremptory strikes he was entitled to, but refused to join the majority opinion because it went further than necessary by suggesting a defendant who leaves a challenged juror seated could still raise a Sixth Amendment claim on appeal. He argued ordinary waiver principles might bar such a claim and thought the majority should have left that unresolved question alone.
How the Court got there
The legal reasoning, step by step
- The Court began from its 1988 decision in Ross v. Oklahoma, which held that peremptory challenges are not a constitutional right but merely a tool for securing the constitutionally guaranteed impartial jury, and that using one to fix a judge's error does not itself violate the Constitution as long as the jury that actually sits is impartial.
- The Court examined Federal Rule of Criminal Procedure 24(b), which sets a fixed number of peremptory strikes for each side, and found nothing in the Rule's text requiring a defendant to use a strike to remove a juror who should have been excused for cause.
- Because Martinez-Salazar received and used all 11 peremptory strikes the Rule entitled him to (10 for the regular jury plus 1 for an alternate), the Court reasoned he lost nothing under the Rule — a hard choice between two options is not the same as being deprived of a right.
- The Court explained that choosing to strike the objectionable juror, rather than leaving him on the jury and appealing later, was simply an exercise of the very purpose peremptory strikes serve: helping secure an impartial jury, not a forced sacrifice of a guaranteed challenge.
- Applying this reasoning, the Court concluded that because Martinez-Salazar got the exact number of strikes the Rule promised and no biased juror sat on his jury, he could not show any violation of his Fifth Amendment due process rights.
Doctrinal impact
Cases affected by this decision
Reaffirms Ross v. Oklahoma (487 U. S. 81)
The Court answers the question Ross left open, applying and extending its reasoning that peremptory strikes are not constitutionally required.