UNITED STATES v. MARTINEZ-SALAZAR

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304 OCTOBER TERM, 1999
Syllabus
UNITED STATES v. MARTINEZ-SALAZAR
certiorari to the united states court of appeals for
the ninth circuit
No. 98–1255. Argued November 29, 1999—Decided January 19, 2000
Respondent Martinez-Salazar and a codefendant were charged with a vari-
ety of federal offenses. As the Federal Rules of Criminal Procedure
instruct, the District Court allotted them 10 peremptory challenges ex-
ercisable jointly in the selection of 12 jurors, Rule 24(b), and another
such challenge exercisable in the selection of an alternate juror, Rule
24(c). Because prospective juror Don Gilbert indicated several times
that he would favor the prosecution, the codefendants challenged him
for cause, but the District Court declined to excuse him. After twice
objecting, unsuccessfully, to the for-cause ruling, Martinez-Salazar used
a peremptory challenge to remove Gilbert. The codefendants subse-
quently exhausted all of their peremptory challenges. At the close of
jury selection, the District Court read the names of the jurors to be
seated and asked if the prosecutor or defense counsel had any objections
to any of those jurors. Martinez-Salazar’s counsel responded: “None
from us.” At the conclusion of the trial, Martinez-Salazar was con-
victed on all counts. On appeal, the Ninth Circuit agreed with him (and
the Government here does not contest) that the District Court’s refusal
to strike Gilbert for cause was an abuse of discretion. This error, the
Ninth Circuit held, did not violate the Sixth Amendment, because Gil-
bert was removed and the impartiality of the jury eventually seated
was not challenged. But the Court of Appeals further concluded that
the District Court’s mistake resulted in a violation of Martinez-Salazar’s
Fifth Amendment due process rights because it forced him to use a
peremptory challenge curatively, thereby impairing his right to the full
complement of peremptory challenges to which federal law entitled him.
Such an error, the Court of Appeals held, requires automatic reversal.
Held: A defendant’s exercise of peremptory challenges pursuant to Rule
24 is not denied or impaired when the defendant chooses to use such a
challenge to remove a juror who should have been excused for cause.
Pp. 311–317.
(a) Although the peremptory challenge plays an important role in re-
inforcing a defendant’s constitutional right to trial by an impartial jury,
see, e. g., Swain v. Alabama, 380 U. S. 202, 212–213, 218–219, this Court
has long recognized that such challenges are auxiliary; unlike the right
to an impartial jury guaranteed by the Sixth Amendment, peremptory

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challenges are not of federal constitutional dimension, see, e. g., Ross v.
Oklahoma, 487 U. S. 81, 88. Peremptory challenges in federal criminal
trials are governed by Rule 24 of the Federal Rules of Criminal Proce-
dure. Rule 24(b) prescribes, inter alia, that for offenses “punishable
by imprisonment for more than one year, . . . the defendant or defend-
ants [are] jointly [entitled] to 10 peremptory challenges.” Rule 24(c)
further provides that when, as in this case, an alternate juror is to
be selected, each side is entitled to one peremptory challenge in select-
ing that juror. The question to which the Court turns is whether
Martinez-Salazar was denied any right for which Rule 24 provides.
Pp. 311–313.
(b) Ross dealt with a state-law question resembling the one presented
here. This Court first rejected the Ross defendant’s position that,
without more, the loss of a peremptory challenge constitutes a violation
of the constitutional right to an impartial jury. 487 U. S., at 88. So
long as the jury that sits is impartial, the Court held, the fact that the
defendant had to use a peremptory challenge to achieve that result does
not mean the Sixth Amendment was violated. Ibid. The Court then
rejected the defendant’s due process objection that forced use of a pe-
remptory challenge to cure a trial court’s error in denying a challenge
for cause arbitrarily deprived him of the full complement of peremptory
challenges allowed under Oklahoma law. Id., at 89. An Oklahoma
statute accorded the defendant nine such challenges. Oklahoma courts
had read into that grant a requirement that a defendant who disagreed
with the trial court’s ruling on a for-cause challenge must, in order to
preserve the claim that the ruling deprived him of a fair trial, exercise
a peremptory challenge to remove the juror. Ibid. Even then, under
state law, the error was grounds for reversal only if the defendant ex-
hausted all peremptory challenges, and an incompetent juror therefore
was forced upon him. Ibid. The defendant in Ross, the Court con-
cluded, did not lose any state-law right when he used one of his nine
challenges to remove a juror who should have been excused for cause;
rather, he received all that state law allowed him, and the fair trial that
the Federal Constitution guaranteed. Id., at 90–91. Pp. 313–314.
(c) This Court rejects the Government’s contention that federal law,
like the Oklahoma statute considered in Ross, should be read to require
a defendant to use a peremptory challenge to strike a juror who should
have been removed for cause, in order to preserve the claim that the
for-cause ruling impaired the defendant’s right to a fair trial. Although
this Court has sanctioned various limitations on the exercise of peremp-
tory challenges that could be viewed as effectively reducing the number
of challenges available to a defendant, see, e. g., Stilson v. United States,
250 U. S. 583, 586, these cases address procedures under which such

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challenges are exercised. None of them demands that a defendant use
or refrain from using a challenge on a particular basis or when a particu-
lar set of facts is present. To date this Court has recognized only one
substantive control over a federal criminal defendant’s choice of whom
to challenge peremptorily. Under the Equal Protection Clause, a de-
fendant may not exercise a challenge to remove a potential juror solely
on the basis of the juror’s gender, ethnic origin, or race. See, e. g., Bat-
son v. Kentucky, 476 U. S. 79. The Court declines to read into Rule 24,
or otherwise impose, the further control advanced by the Government.
Pp. 314–315.
(d) However, the Court agrees with the Government’s narrower
contention that Rule 24(b) was not violated in this case. The Ninth
Circuit erred in concluding that the District Court’s mistake compelled
Martinez-Salazar to challenge Gilbert peremptorily, thereby reducing
his allotment of peremptory challenges by one. A hard choice is not
the same as no choice. Martinez-Salazar received and exercised 11 pe-
remptory challenges. That is all he is entitled to under the Rule.
After objecting to the District Court’s denial of his for-cause challenge,
he had the option of letting Gilbert sit on the petit jury and, upon convic-
tion, pursuing a Sixth Amendment challenge on appeal. Instead, he
elected to use a challenge to remove Gilbert. In choosing to remove
Gilbert rather than taking his chances on appeal, Martinez-Salazar did
not lose a peremptory challenge. Rather, he used the challenge in line
with a principal reason for peremptories: to help secure the constitu-
tional guarantee of trial by an impartial jury. See, e. g., J. E. B. v. Ala-
bama ex rel. T. B., 511 U. S. 127, 137, n. 8. Moreover, the immediate
choice he confronted comports with the reality of the jury selection proc-
ess. Challenges for cause and rulings upon them are fast paced, made
on the spot and under pressure. Counsel as well as court in that proc-
ess must be prepared promptly to decide, often between shades of
gray. Pp. 315–317.
(e) Martinez-Salazar and his codefendant were accorded the exact
number of peremptory challenges that federal law allowed; he cannot
tenably assert any violation of his Fifth Amendment due process right.
See Ross, 487 U. S., at 91. P. 317.
146 F. 3d 653, reversed.
Ginsburg, J., delivered the opinion of the Court, in which Rehnquist,
C. J., and Stevens, O’Connor, Souter, Thomas, and Breyer, JJ., joined.
Souter, J., filed a concurring opinion, post, p. 317. Scalia, J., filed an
opinion concurring in the judgment, in which Kennedy, J., joined, post,
p. 318.

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Opinion of the Court
Deputy Solicitor General Dreeben argued the cause for
the United States. With him on the briefs were Solicitor
General Waxman, Assistant Attorney General Robinson,
David C. Frederick, and Richard A. Friedman.
Michael D. Gordon, by appointment of the Court, 527 U. S.
1054, argued the cause and filed a brief for respondent.*
Justice Ginsburg delivered the opinion of the Court.
In Ross v. Oklahoma, 487 U. S. 81 (1988), this Court reaf-
firmed that “peremptory challenges [to prospective jurors]
are not of constitutional dimension,” id., at 88; rather, they
are one means to achieve the constitutionally required end
of an impartial jury. We address in this case a problem in
federal jury selection left open in Ross. See id., at 91, n. 4.
We focus on this sequence of events: the erroneous refusal of
a trial judge to dismiss a potential juror for cause, followed
by the defendant’s exercise of a peremptory challenge to re-
move that juror. Confronting that order of events, the
United States Court of Appeals for the Ninth Circuit ruled
that the Due Process Clause of the Fifth Amendment re-
quires automatic reversal of a conviction whenever the de-
fendant goes on to exhaust his peremptory challenges during
jury selection. 146 F. 3d 653 (1998).
We reverse the Ninth Circuit’s judgment. We reject the
Government’s contention that under federal law, a defendant
is obliged to use a peremptory challenge to cure the judge’s
error. We hold, however, that if the defendant elects to cure
such an error by exercising a peremptory challenge, and is
subsequently convicted by a jury on which no biased juror
sat, he has not been deprived of any rule-based or constitu-
tional right.
*David A. Reiser and Barbara Bergman filed a brief for the National
Association of Criminal Defense Lawyers et al. as amici curiae urging
affirmance.

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Opinion of the Court
I
Respondent Abel Martinez-Salazar and a codefendant
were tried by a jury in the United States District Court for
the District of Arizona for a variety of narcotics and weapons
offenses. As Rule 24(b) of the Federal Rules of Criminal
Procedure instructs, the District Court allotted the co-
defendants 10 peremptory challenges exercisable jointly in
the selection of 12 jurors. Martinez-Salazar and his co-
defendant also received an additional peremptory challenge
exercisable in the selection of an alternate juror. See Fed.
Rule Crim. Proc. 24(c).
Prior to jury selection, the District Court gave the pro-
spective jurors a written questionnaire to complete. See
146 F. 3d, at 654–655. A potential juror, Don Gilbert, indi-
cated on his questionnaire that he would favor the prosecu-
tion. Id., at 655. In a discussion with the trial judge, Gil-
bert restated: “[A]ll things being equal, I would probably
tend to favor the prosecution.” Ibid. The judge explained
that the burden of proving a person guilty rests with the
Government. Gilbert said he would not disagree with that
proposition. The judge next asked Gilbert whether, if
he were a defendant facing jurors with backgrounds and
opinions similar to his own, he thought he would get a fair
trial. Gilbert answered: “I think that’s a difficult question.
I don’t think I know the answer to that.” Ibid. Martinez-
Salazar’s counsel then inquired whether Gilbert would feel
more comfortable erring on the side of the prosecution or
the defense. Gilbert responded: “I would probably be more
favorable to the prosecution. I suppose most people are. I
mean, they’re predisposed. You assume that people are on
trial because they did something wrong.” Ibid. The judge
then told Gilbert that his response was “contrary to our
whole system of justice. When people are accused of a
crime, there’s no presumption . . . of guil[t]. The presump-
tion is the other way.” Ibid. Gilbert replied, “I understand
that in theory.” Ibid.

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At the completion of this colloquy, Martinez-Salazar and
his codefendant challenged Gilbert for cause. The Govern-
ment opposed the challenge. The District Court declined to
excuse Gilbert for cause, stating: “You know about him and
know his opinions. He said . . . he could follow the instruc-
tions, and he said . . . ‘I don’t think I know what I would do,’
et cetera. So I think you have reasons to challenge him[,]
. . . strike him if you choose to do that.” Ibid.
After twice objecting, unsuccessfully, to the for-cause rul-
ing, Martinez-Salazar used a peremptory challenge to re-
move Gilbert. Martinez-Salazar and his codefendant subse-
quently exhausted all of their peremptory challenges. The
codefendants did not request an additional peremptory chal-
lenge for selection of the petit jury (a request Rule 24(b)
expressly permits a district court to grant when there are
multiple defendants). See Tr. of Oral Arg. 34–35. At the
close of jury selection, the District Court read out the names
of the jurors to be seated and asked if the prosecutor or
defense counsel had any objections to any of those jurors.
Martinez-Salazar’s counsel responded: “None from us.”
App. 182. At the conclusion of the trial, Martinez-Salazar
was convicted on all counts.
On appeal, Martinez-Salazar contended that the District
Court abused its discretion in refusing to strike Gilbert for
cause and that this error forced Martinez-Salazar to use a
peremptory challenge on Gilbert. The Ninth Circuit agreed
(and the Government here does not contest) that the District
Court’s refusal to strike Gilbert for cause was an abuse of
discretion. 146 F. 3d, at 656. This error, the Court of Ap-
peals held, did not violate the Sixth Amendment, because
Gilbert was removed and the impartiality of the jury eventu-
ally seated was not challenged. Id., at 657. But the Court
of Appeals further concluded that the District Court’s mis-
take resulted in a violation of Martinez-Salazar’s Fifth
Amendment due process rights. According to the Ninth
Circuit, the District Court’s error in denying the for-cause

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challenge forced Martinez-Salazar to use a peremptory chal-
lenge curatively, thereby impairing his right to the full com-
plement of peremptory challenges to which federal law enti-
tled him. Such an error, the Court of Appeals held, requires
automatic reversal. Id., at 659.
Judge Rymer dissented in part. She observed that noth-
ing in the text of Rule 24(b) suggests that the exercise of
peremptory challenges is impaired if the defendant uses a
challenge to remove a juror who should have been excused
for cause. Id., at 659–660. Martinez-Salazar, she empha-
sized, never asserted in the District Court that he wished to
strike some other juror with the peremptory challenge he
used to remove Gilbert, nor did he question the impartiality
of the jury as finally composed. Id., at 660. Assuming,
arguendo, that there was a violation of Rule 24(b), Judge
Rymer “would not engraft [onto the Due Process Clause] a
common law remedy of per se reversal for a Rule violation.”
Id., at 661. The court’s decision “[c]onstitutionalizing the
impairment of peremptory challenges,” she underscored, ran
counter to this Court’s decision in Ross and was hardly “in-
consequential” in view of the reality that “[t]rial courts, state
and federal, rule on cause challenges by the minute.” Id.,
at 659, 661.
The Courts of Appeals have divided on the question
whether a defendant’s peremptory challenge right is im-
paired when he peremptorily challenges a potential juror
whom the district court erroneously refused to excuse for
cause, and the defendant thereafter exhausts his peremptory
challenges. The First and Fifth Circuits have indicated
agreement with the Ninth Circuit that this circumstance con-
stitutes an abridgment of the right to exercise peremptory
challenges. See United States v. Cambara, 902 F. 2d 144,
147–148 (CA1 1990); United States v. Hall, 152 F. 3d 381, 408
(CA5 1998). The Tenth and Eleventh Circuits, on the other
hand, have found in this situation no impairment of the right
to peremptory challenges. See United States v. Brooks, 161

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F. 3d 1240, 1245–1246 (CA10 1998); United States v. Farmer,
923 F. 2d 1557, 1566 (CA11 1991).1 We granted certiorari,
527 U. S. 1021 (1999), and now reverse the Ninth Circuit’s
judgment.
II
The peremptory challenge is part of our common-law
heritage. Its use in felony trials was already venerable in
Blackstone’s time. See 4 W. Blackstone, Commentaries 346–
348 (1769). We have long recognized the role of the peremp-
tory challenge in reinforcing a defendant’s right to trial by
an impartial jury. See, e. g., Swain v. Alabama, 380 U. S.
202, 212–213, 218–219 (1965); Pointer v. United States, 151
U. S. 396, 408 (1894). But we have long recognized, as well,
that such challenges are auxiliary; unlike the right to an im-
partial jury guaranteed by the Sixth Amendment, peremp-
tory challenges are not of federal constitutional dimension.
Ross, 487 U. S., at 88; see Stilson v. United States, 250 U. S.
583, 586 (1919) (“There is nothing in the Constitution of the
United States which requires the Congress to grant peremp-
tory challenges.”).
Legislative provision for peremptory challenges in federal
criminal trials dates from 1790. See Act of Apr. 30, 1790,
ch. 9, § 30, 1 Stat. 119. Since 1946, Rule 24 of the Federal
Rules of Criminal Procedure has provided the governing
instructions. That Rule, reproduced in its entirety below,2
1 There is a corresponding conflict among the Circuits in civil cases.
Compare Kirk v. Raymark Industries, Inc., 61 F. 3d 147, 157 (CA3 1995)
(right to peremptory challenge is impaired when a party exercises such a
challenge to strike a prospective juror who should have been removed for
cause), with Getter v. Wal-Mart Stores, Inc., 66 F. 3d 1119, 1122–1123
(CA10 1995) (no impairment).
2 Rule 24. Trial Jurors.
“(a) Examination. The court may permit the defendant or the defend-
ant’s attorney and the attorney for the government to conduct the exami-
nation of prospective jurors or may itself conduct the examination. In
the latter event the court shall permit the defendant or the defendant’s
attorney and the attorney for the government to supplement the examina-

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prescribes that for offenses “punishable by imprisonment for
more than one year, the government is entitled to 6 peremp-
tory challenges and the defendant or defendants jointly to 10
peremptory challenges.” Fed. Rule Crim. Proc. 24(b). In
a multiple-defendant case, the district court “may allow the
defendants additional peremptory challenges and permit
them to be exercised separately or jointly.” Ibid. The
Rule also provides for further peremptory challenges when
alternate jurors are to be impanelled; when, as in Martinez-
Salazar’s case, an alternate is to be selected, each side is
entitled to one peremptory challenge in selecting that juror.
tion by such further inquiry as it deems proper or shall itself submit to
the prospective jurors such additional questions by the parties or their
attorneys as it deems proper.
“(b) Peremptory Challenges. If the offense charged is punishable
by death, each side is entitled to 20 peremptory challenges. If the offense
charged is punishable by imprisonment for more than one year, the gov-
ernment is entitled to 6 peremptory challenges and the defendant or de-
fendants jointly to 10 peremptory challenges. If the offense charged is
punishable by imprisonment for not more than one year or by fine or both,
each side is entitled to 3 peremptory challenges. If there is more than
one defendant, the court may allow the defendants additional peremptory
challenges and permit them to be exercised separately or jointly.
“(c) Alternate Jurors. The court may direct that not more than 6
jurors in addition to the regular jury be called and impanelled to sit as
alternate jurors. Alternate jurors in the order in which they are called
shall replace jurors who, prior to the time the jury retires to consider its
verdict, become or are found to be unable or disqualified to perform their
duties. Alternate jurors shall be drawn in the same manner, shall have
the same qualifications, shall be subject to the same examination and chal-
lenges, shall take the same oath and shall have the same functions, powers,
facilities and privileges as the regular jurors. An alternate juror who
does not replace a regular juror shall be discharged after the jury retires
to consider its verdict. Each side is entitled to 1 peremptory challenge
in addition to those otherwise allowed by law if 1 or 2 alternate jurors are
to be impanelled, 2 peremptory challenges if 3 or 4 alternate jurors are to
be impanelled, and 3 peremptory challenges if 5 or 6 alternate jurors are
to be impanelled. The additional peremptory challenges may be used
against an alternate jury only, and the other peremptory challenges al-
lowed by these rules may not be used against an alternate juror.”

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Fed. Rule Crim. Proc. 24(c). The question to which we now
turn is whether Martinez-Salazar was denied any right for
which Rule 24 provides.
III
Our most recent decision in point is Ross v. Oklahoma.
That 1988 decision dealt with a question resembling the one
presented here, although the issue in Ross arose in a state-
law setting. The defendant in Ross exercised a peremptory
challenge to cure the trial court’s error in denying a chal-
lenge for cause. We first rejected, as the Ninth Circuit
rightly did in the decision under review, the position that,
without more, “the loss of a peremptory challenge consti-
tutes a violation of the constitutional right to an impartial
jury.” 487 U. S., at 88. “So long as the jury that sits is
impartial,” we held, “the fact that the defendant had to use
a peremptory challenge to achieve that result does not mean
the Sixth Amendment was violated.” Ibid. We then took
up the defendant’s due process objection. He argued that
forced use of a peremptory challenge to cure a trial court’s
error in denying a challenge for cause “arbitrarily depriv[ed]
him of the full complement of . . . peremptory challenges
allowed under Oklahoma law.” Id., at 89. An Oklahoma
statute accorded the defendant nine peremptory challenges.
Oklahoma courts had read into that grant a requirement that
“a defendant who disagrees with the trial court’s ruling on a
for-cause challenge must, in order to preserve the claim that
the ruling deprived him of a fair trial, exercise a peremptory
challenge to remove the juror.” Ibid. Even then, under
Oklahoma law, “the error [was] grounds for reversal only if
the defendant exhaust[ed] all peremptory challenges and an
incompetent juror [was] forced upon him.” Ibid. The de-
fendant in Ross, we therefore concluded, did not lose any
right conferred by state law when he used one of his nine
challenges to remove a juror who should have been excused
for cause. Because the defendant received all that state law
allowed him, and the fair trial that the Federal Constitution

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guaranteed, we rejected his due process challenge. Id., at
90–91.
Underlying the Court of Appeals holding in this case was
the notion that the District Court’s error in denying the chal-
lenge for cause “forced” Martinez-Salazar to use a peremp-
tory challenge to remove the objectionable venire member.
146 F. 3d, at 659. Starting from this premise, the Court
of Appeals reasoned that Rule 24(b) was violated because
Martinez-Salazar could effectively exercise only nine of the
ten initial peremptory challenges for which the Rule pro-
vided. The Court of Appeals further concluded that “due
process is violated when a defendant is forced to exercise
a peremptory challenge to cure an erroneous for-cause re-
fusal.” Id., at 658.
The Government urges us to reverse the Court of Appeals
judgment on the ground that federal law, like the Oklahoma
statute considered in Ross, should be read to require a de-
fendant to use a peremptory challenge to strike a juror who
should have been removed for cause, in order to preserve
the claim that the for-cause ruling impaired the defendant’s
right to a fair trial. Brief for United States 19–22. In sup-
port of its position, the Government points to various limita-
tions on the exercise of peremptory challenges that this
Court has sanctioned—limitations that could be viewed as
effectively reducing the number of challenges available to a
defendant. See Reply Brief 3 (citing Stilson, 250 U. S., at
586 (sharing of peremptories among codefendants); St. Clair
v. United States, 154 U. S. 134, 147–148 (1894) (requirement
that parties exercise or waive peremptory strike as each po-
tential juror is selected at random and qualified); Pointer,
151 U. S., at 409, 412 (simultaneous defense and prosecution
strikes)). The cases on which the Government relies ad-
dress procedures under which peremptory challenges are
exercised. None of them demands that a defendant use or
refrain from using a peremptory challenge on a particular
basis or when a particular set of facts is present. To date

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this Court has recognized only one substantive control over
a federal criminal defendant’s choice of whom to challenge
peremptorily. Under the Equal Protection Clause, a de-
fendant may not exercise a peremptory challenge to remove
a potential juror solely on the basis of the juror’s gender,
ethnic origin, or race. See, e. g., J. E. B. v. Alabama ex rel.
T. B., 511 U. S. 127 (1994) (gender); Hernandez v. New York,
500 U. S. 352 (1991) (ethnic origin); Batson v. Kentucky, 476
U. S. 79 (1986) (race). We decline to read into Rule 24,
or otherwise impose, the further control advanced by the
Government.
We agree, however, with the Government’s narrower con-
tention that Rule 24(b) was not violated in this case. Reply
Brief 2–3. The Court of Appeals erred in concluding that
the District Court’s for-cause mistake compelled Martinez-
Salazar to challenge Gilbert peremptorily, thereby reduc-
ing his allotment of peremptory challenges by one. 146 F.
3d, at 659. A hard choice is not the same as no choice.
Martinez-Salazar, together with his codefendant, received
and exercised 11 peremptory challenges (10 for the petit jury,
1 in selecting an alternate juror). That is all he is entitled
to under the Rule.
After objecting to the District Court’s denial of his for-
cause challenge, Martinez-Salazar had the option of letting
Gilbert sit on the petit jury and, upon conviction, pursuing a
Sixth Amendment challenge on appeal. Instead, Martinez-
Salazar elected to use a challenge to remove Gilbert be-
cause he did not want Gilbert to sit on his jury. This
was Martinez-Salazar’s choice.3 The District Court did not
demand—and Rule 24(b) did not require—that Martinez-
Salazar use a peremptory challenge curatively.
In choosing to remove Gilbert rather than taking his
chances on appeal, Martinez-Salazar did not lose a peremp-
3 The choice would be less hard, of course, if, as Justice Scalia hypoth-
esizes, the “defendant had plenty of peremptories left.” See post, at 319
(opinion concurring in judgment).

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tory challenge. Rather, he used the challenge in line with a
principal reason for peremptories: to help secure the consti-
tutional guarantee of trial by an impartial jury. See, e. g.,
J. E. B., 511 U. S., at 137, n. 8 (purpose of peremptory chal-
lenges “ ‘is to permit litigants to assist the government in
the selection of an impartial trier of fact’ ”) (quoting Edmon-
son v. Leesville Concrete Co., 500 U. S. 614, 620 (1991)); Geor-
gia v. McCollum, 505 U. S. 42, 57 (1992) (peremptory chal-
lenges are “one state-created means to the constitutional end
of an impartial jury and a fair trial”); Frazier v. United
States, 335 U. S. 497, 505 (1948) (“the right [to peremptory
challenges] is given in aid of the party’s interest to secure a
fair and impartial jury”). Moreover, the immediate choice
Martinez-Salazar confronted—to stand on his objection to
the erroneous denial of the challenge for cause or to use a
peremptory challenge to effect an instantaneous cure of the
error—comports with the reality of the jury selection proc-
ess. Challenges for cause and rulings upon them, as Judge
Rymer observed, see supra, at 310, are fast paced, made on
the spot and under pressure. Counsel as well as court, in
that setting, must be prepared to decide, often between
shades of gray, “by the minute.” 146 F. 3d, at 661.
In conclusion, we note what this case does not involve. It
is not asserted that the trial court deliberately misapplied
the law in order to force the defendants to use a peremptory
challenge to correct the court’s error. See Ross, 487 U. S.,
at 91, n. 5. Accordingly, no question is presented here
whether such an error would warrant reversal. Nor did the
District Court’s ruling result in the seating of any juror who
should have been dismissed for cause. As we have recog-
nized, that circumstance would require reversal. See id., at
85 (“Had [the biased juror] sat on the jury that ultimately
sentenced petitioner to death, and had petitioner properly
preserved his right to challenge the trial court’s failure to
remove [the juror] for cause, the sentence would have to be
overturned.”); see also Parker v. Gladden, 385 U. S. 363, 366

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317 Cite as: 528 U. S. 304 (2000)
Souter, J., concurring
(1966) (per curiam) (a defendant is “entitled to be tried by
12, not 9 or even 10, impartial and unprejudiced jurors”).4
* * *
We answer today the question left open in Ross and hold
that a defendant’s exercise of peremptory challenges pursu-
ant to Rule 24(b) is not denied or impaired when the defend-
ant chooses to use a peremptory challenge to remove a juror
who should have been excused for cause. Martinez-Salazar
and his codefendant were accorded 11 peremptory chal-
lenges, the exact number Rule 24(b) and (c) allowed in this
case. Martinez-Salazar received precisely what federal law
provided; he cannot tenably assert any violation of his Fifth
Amendment right to due process. See Ross, 487 U. S., at
91. For the reasons stated, the judgment of the Court of
Appeals for the Ninth Circuit is
Reversed.
Justice Souter, concurring.
I concur in the opinion of the Court. I write only to sug-
gest that this case does not present the issue whether it is
reversible error to refuse to afford a defendant a peremptory
challenge beyond the maximum otherwise allowed, when he
has used a peremptory challenge to cure an erroneous denial
of a challenge for cause and when he shows that he would
4 Relying on language in Swain v. Alabama, 380 U. S. 202 (1965), as did
the Court of Appeals in the decision below, Martinez-Salazar urges the
Court to adopt a remedy of automatic reversal whenever a defendant’s
right to a certain number of peremptory challenges is substantially im-
paired. Brief for Respondent 29 (a “ ‘denial or impairment of the right
[to exercise peremptory challenges] is reversible error without a showing
of prejudice’ ”) (quoting Swain, 380 U. S., at 219). Because we find no
impairment, we do not decide in this case what the appropriate remedy
for a substantial impairment would be. We note, however, that the oft-
quoted language in Swain was not only unnecessary to the decision in that
case—because Swain did not address any claim that a defendant had been
denied a peremptory challenge—but was founded on a series of our early
cases decided long before the adoption of harmless-error review.

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318 UNITED STATES v. MARTINEZ-SALAZAR
Scalia, J., concurring in judgment
otherwise use his full complement of peremptory challenges
for the noncurative purposes that are the focus of the pe-
remptory right. Martinez-Salazar did not show that, if he
had not used his peremptory challenge curatively, he would
have used it peremptorily against another juror. He did not
ask for a makeup peremptory or object to any juror who sat.
Martinez-Salazar simply made a choice to use his peremptory
challenge curatively.
Justice Scalia, with whom Justice Kennedy joins,
concurring in the judgment.
I agree with the Court’s analysis of the issue before us:
Respondent has been accorded the full number of peremp-
tory challenges to which he was entitled. The fact that he
voluntarily chose to expend one of them upon a venireman
who should have been stricken for cause makes no difference.
I do not join the opinion of the Court because it unneces-
sarily pronounces upon the question whether, had respond-
ent not expended his peremptory challenge, he would have
been able to complain about the seating of the biased juror.
See ante, at 315 (“Martinez-Salazar had the option of letting
Gilbert sit on the petit jury and, upon conviction, pursuing
a Sixth Amendment challenge on appeal”). Since he did
expend the challenge, that issue is simply not before us.
I am far from certain, moreover, that the Court’s sug-
gested resolution of the issue is correct. It is easy enough
to agree that we have no warrant “to read into Rule 24,”
ibid., a requirement that peremptories be used to remove
veniremen properly challenged for cause. The difficult
question, however, is not whether Federal Rule of Criminal
Procedure 24(b) requires exercise of the peremptory, but
whether normal principles of waiver (not to say the even
more fundamental principle of volenti non fit injuria) dis-
able a defendant from objecting on appeal to the seating of
a juror he was entirely able to prevent. I would not find it
easy to overturn a conviction where, to take an extreme ex-

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319 Cite as: 528 U. S. 304 (2000)
Scalia, J., concurring in judgment
ample, a defendant had plenty of peremptories left but chose
instead to allow to be placed upon the jury a person to whom
he had registered an objection for cause, and whose presence
he believed would nullify any conviction.
The resolution of juror-bias questions is never clear cut,
and it may well be regarded as one of the very purposes
of peremptory challenges to enable the defendant to correct
judicial error on the point. Indeed, that must have been one
of their purposes in earlier years, when there was no appeal
from a criminal conviction, see Bessette v. W. B. Conkey Co.,
194 U. S. 324, 335–336 (1904)—so that if the defendant did
not correct the error by using one of his peremptories, the
error would not be corrected at all. It is certainly not clear
to me that the institution of appeals exempted defendants
from using peremptories for this original purpose, thereby
giving them (in effect) additional challenges.
Because the question is not presented (and hence cannot
be authoritatively resolved), I would leave it unaddressed.