State Codes and Statutes

972.03

972.03 Peremptory challenges. Each side is entitled to only 4 peremptory challenges except as otherwise provided in this section. When the crime charged is punishable by life imprisonment, the state is entitled to 6 peremptory challenges and the defendant is entitled to 6 peremptory challenges. If there is more than one defendant, the court shall divide the challenges as equally as practicable among them; and if their defenses are adverse and the court is satisfied that the protection of their rights so requires, the court may allow the defendants additional challenges. If the crime is punishable by life imprisonment, the total peremptory challenges allowed the defense shall not exceed 12 if there are only 2 defendants and 18 if there are more than 2 defendants; in other felony cases 6 challenges if there are only 2 defendants and 9 challenges if there are more than 2. In misdemeanor cases, the state is entitled to 3 peremptory challenges and the defendant is entitled to 3 peremptory challenges, except that if there are 2 defendants, the court shall allow the defense 4 peremptory challenges, and if there are more than 2 defendants, the court shall allow the defense 6 peremptory challenges. Each side shall be allowed one additional peremptory challenge if additional jurors are to be selected under s. 972.04 (1).

972.03 - ANNOT.

History: 1983 a. 226; 1995 a. 427; Sup. Ct. Order No. 96-08, 207 Wis. 2d xv (1997).

972.03 - ANNOT.

Judicial Council Note, 1983: This section is amended by allowing one additional peremptory challenge when additional jurors are to be impaneled. This approximates the right of each side under prior s. 972.05 to one additional peremptory challenge for each alternate juror. Since abolition of the concept of "alternate" jurors permits the additional peremptory challenge to be made to any member of the panel, only one additional challenge is permitted. [Bill 320-S]

972.03 - ANNOT.

Judicial Council Note, 1996: This proposal changes "impaneled" to "selected" whenever a statute refers to choosing jurors or prospective jurors, for statutory uniformity. [Re Order effective 7-1-97.]

972.03 - ANNOT.

A defendant has a heavy burden to show unlawful discrimination in a prosecutor's peremptory challenges. State v. Grady, 93 Wis. 2d 1, 286 N.W.2d 607 (Ct. App. 1979).

972.03 - ANNOT.

A party defending against an allegation that peremptory strikes were used for discriminatory reasons must offer something more than a bald statement that other nonprohibited factors were considered. There must be a showing that there is a nexus between legitimate factors and the juror who was struck. State v. Jagadowsky, 209 Wis. 2d 577, 563 N.W.2d 188 (Ct. App. 1997), 96-2927.

972.03 - ANNOT.

An appellate court should overturn a circuit court's determination that a prospective juror can be impartial only if the juror's bias is manifest; not where there is a reasonable suspicion of bias. The test for manifest bias is stated. State v. Ferron, 219 Wis. 2d 481, 579 N.W.2d 654 (1998), 96-3425. But see State v. Faucher, 227 Wis. 2d 700, 596 N.W.2d 770 (1999), 97-2702, for a review of this case to apply new terminology regarding juror bias.

972.03 - ANNOT.

Veteran jurors cannot be removed solely on the basis of having served as jurors in a similar case, but must be shown to have exhibited bias in the case they are called to hear. It was error for the trial court not to strike 5 potential jurors who had served on a prior case in which the same defense was used when the jurors expressed that they would not give serious consideration to the defense. State v. Kiernan, 227 Wis. 2d 736, 596 N.W.2d 760 (1999), 97-2449.

972.03 - ANNOT.

A defendant is not entitled to a new trial when both the prosecution and defense are given an equal number of peremptory strikes, even if the number is less than provided for by statute. State v. Erickson, 227 Wis. 2d 758, 596 N.W.2d 749 (1999), 98-0273.

972.03 - ANNOT.

There is no automatic disqualification of potential jurors who have been convicted of crimes. The erroneous dismissal of a prospective juror for cause does not constitute an additional peremptory challenge for the moving party; it is an error subject to harmless error analysis. State v. Mendoza, 227 Wis. 2d 838, 596 N.W.2d 736 (Ct. App. 1998), 97-0952.

972.03 - ANNOT.

Peremptory challenges may not be exercised, and therefore not changed, after the parties have accepted the jury, even if the jury has not yet been sworn. State v. Nantelle, 2000 WI App 110, 235 Wis. 2d 91, 612 N.W.2d 356, 99-2159.

972.03 - ANNOT.

The trial court's failure to remove a potential juror who was objectively biased, forcing the defendant to strike the potential juror with a peremptory strike allowed under this section, did not require a new trial when the defendant received a fair trial. The harmless error test under s. 805.18 (2) is applicable. State v. Ramos, 211 Wis. 2d 12 is overturned. State v. Lindell, 2001 WI 108, 245 Wis. 2d 689, 629 N.W.2d 223, 99-2704.

972.03 - ANNOT.

Equal protection precludes a prosecutor's use of a peremptory challenge to exclude potential jurors solely by reason of race. A criminal defendant can raise the equal protection claim that jurors were excluded because of their race, whether or not there is racial identity between the defendant and the excluded jurors. Powers v. Ohio, 499 U.S. 400, 113 L. Ed. 2d 411 (1991). See also Basten v. Kentucky, 476 U.S. 79, 90 L. Ed. 2d 69 (1986) for a process for evaluating a claim that race was the sole basis for a peremptory challenge.

972.03 - ANNOT.

Gender-based peremptory strikes are barred by the equal protection clause. J.E.B. v. Alabama ex rel. T.B. 511 U.S. 127, 128 L. Ed. 2d 89 (1994).