What is the test for removing a prospective juror from a jury?

California, United States of America


The following excerpt is from People v. Bivert, 127 Cal.Rptr.3d 261, 254 P.3d 300, 52 Cal.4th 96 (Cal. 2011):

This court recently explained in People v. Mills (2010) 48 Cal.4th 158, 186, 106 Cal.Rptr.3d 153, 226 P.3d 276, that [a]s a general rule, a party may not complain on appeal of an allegedly erroneous denial of a challenge for cause because the party need not tolerate having the prospective juror serve on the jury; a litigant retains the power to remove the juror by exercising a peremptory challenge. Thus, to preserve this claim for appeal we require, first, that a litigant actually exercise a peremptory challenge and remove the prospective juror in question. Next, the litigant must exhaust all of the peremptory challenges allotted by statute and hold none in reserve. Finally, counsel ... must express to the trial court dissatisfaction with the jury as presently constituted. Here, defendant satisfied the first two of these requirements, but not the third.

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