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THE ADVOCATE Volume 30, No.1 January 2008
So, for example, in a trial with two co-defendants and two alternate jurors, the peremptories would
be distributed as follows:
“per side” “per defendant”
pros. def. co-def 1 co-def 2
normally 8 8
w/altern. 1 1 1 1
co-defs 1 1
As one can see on the chart: Each side starts with 8 peremptories. Since there are alternates, there
is one more strike per side and also one more strike per defendant (the strikes per defendant are to
be used independently). Lastly, since there are 2 co-defendants, each co-defendant gets one more
strike apiece, to be also used independently of each other. That would give the Commonwealth 9
total peremptories and the defendants 13, in that trial. Springer v. Commonwealth, 998 S.W.2d 439
(Ky.1999). “[T]he basic entitlement to peremptory challenges under RCr 9.40(1) is eight for the
Commonwealth and eight for the defense. If more than one defendant is being tried, the defendants
are entitled to a total of ten peremptory challenges: eight to be exercised jointly pursuant to RCr
9.40(1), and one each to be exercised independently pursuant to RCr 9.40(3). If one or two additional
(alternate) jurors are seated, the defendants are entitled to a total of thirteen peremptory challenges:
nine to be exercised jointly pursuant to RCr 9.40(1) and (2); one each to be exercised independently
pursuant to RCr 9.40(3); and an additional one each to exercised independently pursuant to RCr
9.40(2)....” Id., 444.
The exception is that in cases with just a single defendant and alternate jurors, the defendant only
gets one extra peremptory, like the prosecution, for a total of 9. The reasoning is that, if there are
not multiple co-defendants, there is no “side,” but rather just the single defendant. Stopher v.
Commonwealth, 57 S.W.3d 787 (Ky.2001), Furnish v. Commonwealth, 95 S.W.3d 34 (Ky.2002).
Practice Tip: You must object to not getting your correct number of peremptories. Failure to give
the correct number of peremptories is grounds for automatic reversal. The objection is waived,
however, once the jury is sworn. Springer v. Commonwealth, 998 S.W.2d 439 (Ky.1999), Commonwealth
v. Young, 212 S.W.3d 117 (Ky.2006).
BATSON CHALLENGES
The Equal Protection Clause of the 14 th Amendment prohibits the discriminatory use of peremptory
strikes in order to exclude members of a cognizable minority from participation in jury service.
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Batson applies to both prosecutors and defendants. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct.
2348, 120 L.Ed.2d 33 (1992), Wiley v. Commonwealth, 978 S.W.2d 333 (Ky.App.1998).
“[A] criminal defendant may object to race-based exclusions of jurors effected through peremptory
challenges whether or not the defendant and the excluded juror share the same race.” Powers v.
Ohio, 499 U.S. 400, 401, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
Batson challenges can also be made to peremptory strikes which are discriminatory on the basis of
gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Wiley v.
Commonwealth, 978 S.W.2d 333 (Ky.App.1998). (Hannan v. Commonwealth, 774 S.W.2d 462
(Ky.App.1989), which says that Batson does not apply to gender discrimination in the use of jury
strikes, was decided before J.E.B.)
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NOTES