Chapter 3 - § 3.6 PEREMPTORY CHALLENGES

• Jurisdiction: Colorado

§ 3.6 PEREMPTORY CHALLENGES

Colorado

➢ Procedure. After the challenges for cause are completed, the clerk is to make a list of the remaining jurors, and then each side, beginning with the plaintiff, shall make peremptory challenges to one juror at a time in regular turn until all peremptory challenges are exhausted or waived. C.R.C.P. 47(g).

➢ Procedure; Number of Peremptory Challenges. "Each side shall be entitled to four peremptory challenges, and if there is more than one party to a side they must join in such challenges." Additional peremptory challenges may be allowed at the discretion of the court in third-party actions or actions by intervenors. C.R.C.P. 47(h).

➢ Number of Peremptory Challenges. Allowing a civil litigant fewer peremptory challenges than authorized, or than available to and exercised by the opposing party, does not by itself require automatic reversal. Instead, the reviewing court must determine whether the error substantially influenced the outcome of the case in accordance with the civil harmless error rule. Laura A. Newman, LLC v. Roberts, 365 P.3d 972, 978 (Colo. 2016).²
➢ General; Discrimination. It is well established that the Equal Protection Clause of the Fourteenth Amendment prohibits discriminatory jury selection. Prospective jurors cannot be removed solely on the basis of race. Batson v. Kentucky, 476 U.S. 79, 86-87 (1986).

➢ General; Discrimination. While Batson involved a prosecutor's use of peremptory challenges in a racially discriminatory way in a criminal trial, its principles prohibiting discrimination are applicable in both criminal and civil cases. Donelson v. Fritz, 70 P.3d 539, 541 (Colo. App. 2002); Middleton v. Beckett, 960 P.2d 1213 (Colo. App. 1998); Craig v. Carlson, 161 P.3d 648, 653 (Colo. 2007).

➢ General; Discrimination. In order to establish a successful Batson challenge, it must be established that there was purposeful discrimination. People v. Robinson, 187 P.3d 1166, 1172 (Colo. App. 2008).

➢ Finding of Discrimination. Batson requires trial courts to conduct a three-step analysis to determine whether the opponent of a peremptory challenge has proven the existence of purposeful discrimination. First, the court must find that the opponent presented evidence sufficient to establish a prima facie case of discrimination. Then, the court should evaluate the peremptory challenger's proffered reasons for striking the juror. Finally, if the court finds that the proponent offered a facially neutral

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