Sunday, July 15, 2012

Case o' The Week: Use it Or Lose It (Then Win It) - Yepiz, Jury Selection, and Rule 24

“Use or lose it:” a wonderful strategy to focus decision-making, and a pithy little proclamation for motivational posters.

Not a great rule, though, when peremptory challenges are at stake. United States v. Yepiz, 2012 WL 2510341 (9th Cir. July 2, 2012), decision available here.

Players: Decision by Judge Rawlinson, joined by Judge W. Fletcher and DJ Mills. Creative challenge by former SD Cal AFPD Ben Coleman.

Facts: Yepiz went to trial. Id. at *2. As directed by Fed. R. Crim. Procedure 24, the government had six peremptory jury challenges and the defense had ten. Id. The district court, however, used a “use or lose it” approach: “acceptance of a jury panel as constituted at any point during the voir dire proceedings would be counted as the use of a peremptory challenge.” Id. The defense didn’t object to this approach. During jury selection, the defense used eight challenges, and didn’t object to the next two proposed panels. Id. The result under “use it or lose it” was that the defense effectively lost its last two peremptory challenges. Id. After the government used its last strike, a juror was called into the prospective pool. This juror had a law degree, had interned in a D.A.’s office, and worked in her husband’s legal practice. Id. at *3. Though it had only used eight strikes, the defense could not exercise its remaining two challenges because of the “use it or lose it” policy, and because it had accepted previous panels. Id. The final juror was seated, Yepiz was convicted. Id.

Issue(s): “We consider whether the district court plainly erred by employing its ‘use it or lose it’ voir dire policy practice and determining that Yepiz’s acceptance of two jury panels as then constituted resulted in a waiver of two peremptory challenges. According to Yepiz, this involuntary waiver of his peremptory challenges forced him to accept a biased replacement juror.” Id. at *5.

Held: “In this case, as in [United States v. Turner, 558 F.2d 535, 538 (9th Cir. 1977)], the defense was entitled to ten peremptory challenges, no more, no less. Yet, the district court’s “use it or lose it” practice deprived the defendant of the full complement of challenges to which he was entitled under Fed. R. Crim. P. 24. As in Turner, equating acceptance of the jury panel at any point in the voir dire process with waiver of a peremptory challenge “unduly restricts” the defendant’s use of the peremptory challenges to which he is otherwise entitled. Turner, 558 F.2d at 538; see also Pointer v. United States, 151 U.S. 396, 408 (1894) (declaring that “[a]ny system for the impaneling of a jury that prevents or embarrasses the full, unrestricted exercise by the accused of [peremptory challenges] must be condemned.”) (emphasis added).” Id. at *6.

Of Note: Judge Rawlinson provides a good explanation of Rule 24, and helpfully clarifies some muddled law on restraints on the defense’s use of peremptory challenges. Id. at *5-*6. Unfortunately, Yepiz also explains that this error does not create per se reversal: absent objection, this is reviewed for plain error. Id. at *6 (discussing UnitedStates v. Lindsey, 634 F.3d 541, 550 (9th Cir. 2011)). Here, Yepiz couldn’t surmount plain error because he didn’t show the bias of the final juror: the conviction was sustained Id. at *6.   

How to Use: At least one ND Cal District Judge has a “use or lose it” policy for jury selection – a policy that seems to be plain error under Yepiz. See id. at *6 (“The error . . . in this case was obvious because it was contrary to the plain language of Rule 24.”) If you’ve got a pending appeal from that NorCal court, a plain error challenge may await. For future cases, add Yepiz to your trial binder and object to any restraints on defense peremptory challenges. Judge Rawlinson’s language in Yepiz is straightforward and welcome – there’s little room in Rule 24 for creative jury selection policies when defense strikes are at issue.
For Further Reading: “Plain” or “structural” error? Back in the good ‘ole days, an error that affected the structural fairness of a trial earned the defense an automatic reversal on appeal. That enlightened approach is under attack. For an interesting (albeit discouraging) discussion on structural error in the jury-selection context, see Lindsey, 634 at 546 – 48, and Judge Pregerson’s concurrence at 556.

Image of “Use it or Lose It” from Image of, "Use it or Lose It" from

Steven Kalar, Senior Litigator ND Cal FPD. Website at


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