State v. Villeda

108 March 21, 2024 No. 6

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Petitioner on Review,

v.

JULIO CESAR VILLEDA,

Respondent on Review.

(CC 19CR08759; 20CR10192)

(CA A175679 (Control); A175680) (SC S070188)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 9, 2023.

Timothy A. Sylwester, Assistant Attorney General, Salem,

argued the cause and filed the briefs for petitioner on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

Brett J. Allin, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the brief

for respondent on review. Also on the brief was Ernest G.

Lannet, Chief Deputy Defender, Criminal Appellate Section.

James S. Coon, Thomas, Coon, Newton & Frost, Portland,

filed the brief for amicus curiae Gary Walter Higgs.

Rosalind M. Lee, Oregon Criminal Defense Lawyers

Association, Eugene, filed the brief for amicus curiae

Oregon Criminal Defense Lawyers Association. Also on the

brief were Stacy M. Du Clos, Nora E. Coon, and Daniel C.

Silberman.

BUSHONG, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is affirmed.

______________

* Appeal from Washington County Circuit Court, Oscar Garcia, Judge. 324

Or App 502, 526 P3d 1213 (2023).

Cite as 372 Or 108 (2024) 109

110 State v. Villeda

BUSHONG, J.

A jury convicted defendant of two domestic violence

offenses, acquitting him on more serious charges, including

rape, sodomy, and sexual abuse of his domestic partner. Before

trial, during jury selection, a prospective juror stated that she

did not think that she could be fair and impartial because

she had several close friends who had been sexually assaulted

and that would influence her if she sat on the jury. The trial

court denied defendant’s request to excuse that prospective

juror for actual bias after hearing her responses to additional

questions posed by the court and the prosecutor. The prospec-

tive juror did not sit on the jury that decided the case because

defendant used one of his peremptory challenges to excuse

her. In appealing his convictions, defendant contended that

the trial court abused its discretion in denying defendant’s

for-cause challenge to that juror. The Court of Appeals agreed

and further concluded that the error was prejudicial because it

resulted in the loss of a peremptory challenge. State v. Villeda,

324 Or App 502, 526 P3d 1213 (2023).

We agree with the Court of Appeals that the trial

court abused its discretion in denying defendant’s challenge

for cause, but we conclude that the error did not prejudice

the defendant “in respect to a substantial right” as required

for reversal under ORS 131.035. As explained below, the

error did not interfere with defendant’s right to a fair trial

before impartial jurors, and whatever impact the error may

have had on how defendant used his peremptory challenges

did not prejudice him in respect to a substantial right.

Accordingly, we reverse the decision of the Court of Appeals

and affirm the judgment of the trial court.

I. BACKGROUND

A. Standard of Review

We review the trial court’s ruling on a challenge to

a juror for cause for abuse of discretion. State v. Fanus, 336

Or 63, 83, 79 P3d 847 (2003), cert den, 541 US 1075 (2004).

Because the trial court has the advantage of observing the

juror’s demeanor, a trial court’s decision on a challenge for

cause “is entitled to deference and will not be disturbed

absent a manifest abuse of discretion.” Id. The trial court’s

Cite as 372 Or 108 (2024) 111

discretion, however, is limited by the law that governs chal-

lenges for cause for actual bias. See ORCP 57 D(1)(g) (defin-

ing actual bias);1 ORS 136.210(1) (adopting ORCP 57 D(1)(g)

standards for jury selection in criminal cases); State v.

Barone, 328 Or 68, 74, 969 P2d 1013 (1998) (describing

abuse of discretion standard). The fact that a juror “has

preconceived ideas about a matter relevant to the case is

not determinative.” Barone, 328 Or at 74. Rather, the test

“is whether the prospective juror’s ideas or opinions would

impair substantially [their] performance of the duties of a

juror to decide the case fairly and impartially on the evi-

dence presented in court.” Id.

B. The Jury Selection Process in This Case

The relevant facts—involving the steps taken by

the trial court during the jury selection process, also known

as voir dire—are procedural and undisputed.

At the start of the jury selection process, the court

read the charges in the indictment and asked if any of the

prospective jurors had personal views about this type of

case—involving allegations of domestic violence, including

charges of rape, sodomy, and physical assault—that might

affect their ability to be fair and impartial jurors. Juror 155

raised her hand. When defense counsel asked juror 155 why

she might not be able to be fair and impartial, she stated, “I

have several close friends who have been sexually assaulted

or raped” and “that would influence how I would participate

in this.” When asked to explain further, juror 155 stated,

“Well, I think generally when I hear about cases of sexual

1

ORCP 57 D(1)(g) provides that challenges for cause may be taken for actual

bias. The rule defines actual bias as

“the existence of a state of mind on the part of a juror that satisfies the court,

in the exercise of sound discretion, that the juror cannot try the issue impar-

tially and without prejudice to the substantial rights of the party challenging

the juror. Actual bias may be in reference to the action; either party to the

action; the sex of the party, the party’s attorney, a victim, or a witness; or a

racial or ethnic group of which the party, the party’s attorney, a victim, or a

witness is a member, or is perceived to be a member. A challenge for actual

bias may be taken for the cause mentioned in this paragraph, but on the trial

of such challenge, although it should appear that the juror challenged has

formed or expressed opinion upon the merits of the cause from what the juror

may have heard or read, such opinion shall not of itself be sufficient to sustain

the challenge, but the court must be satisfied, from all the circumstances, that

the juror cannot disregard such opinion and try the issue impartially.”

112 State v. Villeda

abuse or rape, I tend to give credibility to the survivor. And,

so, while I can still presume that [defendant] is innocent, I

think my natural inclination is [to] stand with the survivor.”

When defense counsel asked the juror if she could

put that view aside, she stated, “I’m not sure if I could put

it aside.” Defense counsel then asked the juror if she had “a

reasonable doubt about [her] ability to be fair to [defendant]

in this case,” and she replied, “Yes.” Defense counsel then

asked the court to excuse juror 155 for cause.

The court did not immediately rule on that request.

Instead, the court spoke to the pool of prospective jurors

about the role of the jury, explaining that, although the cir-

cumstances of the case might remind a person of their own

life experiences, that does not necessarily mean that the

person cannot be a fair and impartial juror. The court then

asked juror 155 the following question:

“Do you think you could put those feelings aside * * *

and be neutral, fair when you hear the evidence here * * *

and then if it’s creeping back, wait, I know I have these

feelings, but I can’t let them—no, no, I got to listen. I got to

be fair to both sides * * *.

“And then hear the evidence and then follow the law

as I give it to you and just in essence, you know, to be fair.

I mean, do you think you could do that * * * if you were a

juror in this case?”

Juror 155 replied:

“Yes, I think so. I think, again, that my natural inclina-

tion would be to lend more support to the victim survivor,

but I think I could check my biases and my past under-

standing of these issues.”

At that point, the court permitted questioning of the pro-

spective jurors to continue.

Later, defense counsel asked the prospective jurors

if anyone believed that a woman would not lie about being

raped. Juror 155 raised her hand and confirmed that her con-

cern was the same as what she previously explained. Juror

155 also indicated that she agreed with defense counsel’s

statements that a woman would not lie about being raped

by someone that she was in a relationship with, and that a

Cite as 372 Or 108 (2024) 113

woman would not lie “in court” about being raped. Defense

counsel then asked juror 155 if she thought she would be a

good juror for this case, and she replied that she thought she

would be “biased” or “really emotional.”

The court and prosecutor then inquired further:

“THE COURT: Ma’am, * * *we gave you a chance to hear

other folks* * *? And again, you know, you heard my defini-

tion of what we’re looking for, everybody here * * * to be fair

and * * * kind of keep * * * those emotions aside if you can* * *.

So, do you think, ma’am, that you can do it in this case?

“[JUROR 155]: I don’t think I could keep my emotions

to the side. Even just being in the room is just difficult.

“THE COURT: And would those emotions not allow

you to be fair to one side.

“[JUROR 155]: Yeah. I don’t think they would allow

me to be fair.”

The court then allowed the state to inquire further:

“[THE PROSECUTOR]: Thank you. [Juror 155], I can

see you’re getting a little upset, and I totally understand.

The good news is that we’re not here to decide whether or

not rape is a crime. There are certainly—it’s a crime within

the books, and there are other heinous crimes that defi-

nitely happen in the courthouse that * * *would be hard to

listen to. There’s child abuse. There’s murder. And nobody

is asking you not to be a human when you’re hearing that.

The question is when the judge tells you that, you know,

you’re to follow the law and to weigh the evidence as it’s

presented, do you think that’s something you could do?

“[JUROR 155]: To weigh the evidence as it’s presented?

“[THE PROSECUTOR]: Mm-hmm. The evidence and

the law as its presented.

“[JUROR 155]: Yes.”

Defense counsel again challenged juror 155 for

cause, and the court denied the challenge. The court also

denied defense counsel’s request for additional peremptory

challenges. At the end of the jury selection process, defense

counsel used one of defendant’s six peremptory challenges

to excuse juror 155 and used the other five peremptory

114 State v. Villeda

challenges to excuse other prospective jurors. Defense coun-

sel did not challenge for cause any of the jurors who were

eventually seated on the jury, although counsel did state

that the defense would have used peremptory challenges to

excuse jurors 128 and 305 if two more peremptory challenges

had been available.2 Defense counsel did not challenge those

jurors for cause, contend that they did not qualify as fair and

impartial jurors, or explain why he would have excused those

jurors peremptorily if he had more peremptory challenges.

At the conclusion of the trial, the jury found defen-

dant guilty of endangering a person protected by an order

under the Family Abuse Prevention Act, ORS 163.192, and

assault in the fourth degree constituting domestic violence,

ORS 163.160(2). The jury found defendant not guilty on the

other charged offenses, including rape, sodomy, and sexual

abuse of his domestic partner.

Defendant appealed his convictions, and the Court

of Appeals reversed, concluding that the trial court abused

its discretion in rejecting defendant’s for-cause challenge to

juror 155, Villeda, 324 Or App at 512, and that the conse-

quence of that error “was to force defendant to use a peremp-

tory challenge, effectively reducing the number of peremp-

tory challenges available for other prospective jurors.” Id.

at 514. That amounted to prejudice within the meaning of

Article VII (Amended), section 3, of the Oregon Constitution,

the court reasoned, in part based on this court’s description

of “prejudice” in State v. Montez, 309 Or 564, 577, 789 P2d

1352 (1990). Thus, the court concluded that “prejudice arises

from the erroneous rejection of a for-cause juror challenge if,

as here, the defendant makes a record that a lost peremp-

tory challenge would otherwise have been used against a

juror who sat.” Villeda, 324 Or App at 514.

II. DISCUSSION

A. Defendant’s Challenge for Cause Based on Actual Bias

In all criminal prosecutions, the defendant has the

right to a trial “by an impartial jury.” Or Const, Art I, § 11.

That right “is a matter which is and should be guarded

2

Juror 305 sat on the jury that decided the case. Juror 128 was empaneled to sit

on the jury but was later released due to illness and replaced by an alternate juror.

Cite as 372 Or 108 (2024) 115

zealously by the courts, and the courts should guarantee

that juries consist of impartial persons.” Lambert v. Srs. of

St. Joseph, 277 Or 223, 230, 560 P2d 262 (1977). “The test

of a juror’s disqualification [for actual bias] is the probabil-

ity of bias or prejudice” as determined by the trial court.

Montez, 309 Or at 575; see also State v. Lotches, 331 Or 455,

474, 17 P3d 1045 (2000) (stating that the trial court deter-

mines excusal for actual bias “by looking at the totality of

the potential juror’s voir dire testimony to discern whether it

suggests the probability of bias”) (internal quotation marks

omitted).

In considering the totality of the circumstances,

we have explained that a court must give more weight to

a juror’s unprompted statements of bias, and less weight to

any statements made in response to statements or leading

questions by counsel or the court designed to “rehabilitate”

a juror who had disclosed a preexisting bias. For example,

in Lambert, at the beginning of the jury selection process in

a medical malpractice case, one prospective juror indicated

that he knew one of the defendant doctors and stated that

he would be biased in favor of that doctor. 277 Or at 226.

Because the plaintiffs had exhausted their peremptory chal-

lenges, that juror was seated on the jury, which returned a

verdict for the defendants.

On appeal, we reversed, concluding that the trial

court should have excused that juror for cause because his

“substantial probability of bias” deprived the plaintiffs “of

the right to have their issues determined by an impartial

juror.” Id. at 231. We explained that the trial court’s fail-

ure to excuse the juror for cause amounted to “a manifest

abuse of the discretion vested in the court,” because a juror’s

“[i]nitial reactions or answers given in voir dire without

undue debate and confinement of issues should be afforded

much greater weight in determining [the juror’s] true frame

of mind.” Id. That is because “[e]arly answers or reactions

more truly indicate the juror’s frame of mind as opposed to

later generalized statements that the juror would be fair.”

Id. Thus, we concluded that answers given by a juror early

in the jury selection process—before any efforts at reha-

bilitating the juror—must be given “[s]pecial emphasis” or

116 State v. Villeda

“particular significance” in assessing a prospective juror’s

actual bias. Id.

We apply the same principles in criminal cases. For

example, in State v. Nefstad, 309 Or 523, 531, 789 P2d 1326

(1990), a capital case, we held that a trial court did not err in

excusing one prospective juror for actual bias where, “[w]ith-

out equivocation, [the juror] explained his views and the effect

that they would have on his ability to be an impartial juror

at the beginning of his voir dire testimony.” The defendant

in Nefstad argued that the trial court had erred in excusing

the prospective juror for cause because the defendant had not

been “given a chance to rehabilitate [the juror] on issues the

trial court felt provided a legal basis for exclusion” in violation

of his statutory and constitutional rights. Id. We disagreed,

noting that ORS 136.210(1) gave the defendant a statutory

right to examine prospective jurors as to their qualifications,

and the defendant’s counsel had been given two opportunities

to question the juror. Id. at 531-32. Moreover, we explained,

examining a juror is different from rehabilitating the juror,

because “the purpose of the voir dire examination was inves-

tigation, not persuasion.” Id. at 533. We therefore concluded,

“ ‘[w]hen it satisfactorily appears from the examination of a

person called as a juror that [they possess] such a state of

mind that [they] cannot try the issues impartially, the intro-

duction of further testimony would be superfluous.’ ” Id. (quot-

ing State v. Miller, 46 Or 485, 487, 81 P 363 (1905)).3

Thus, we recognized in both Lambert and Nefstad

that (1) a party does not have a right to rehabilitate a biased

juror; (2) a juror’s unprompted statements of bias should be

given special weight; and (3) attempting to persuade a juror

that they could be fair despite their expressed biases inter-

feres with the court’s effort to assess whether the prospective

3

We also noted that the statements of another prospective juror in Nefstad

“were equivocal” and that that juror had “given admittedly contradictory

responses” regarding his personal views about the death penalty. Id. at 536, 538.

We concluded that the trial court did not abuse its discretion in dismissing that

juror for actual bias because the juror’s voir dire testimony, taken as a whole,

“established that his views on the death penalty would have interfered substan-

tially with and impaired his performance as a juror in accordance with his oath

and the court’s instructions.” Id. at 538. We explained that a prospective juror in

a capital case “may be excused on [those] grounds without violating the defen-

dant’s right to an impartial jury.” Id.

Cite as 372 Or 108 (2024) 117

juror’s “probability of bias” is sufficient to excuse the juror

for cause.

Legal scholars and empirical studies support those

conclusions. One commentator observed that juror reha-

bilitation “gets little support from social science research

as a method to ensure impartial juries.” Kathleen Wright,

Friends and Foes in the Jury Box: Walls v. Kim and the

Mission to Stop Improper Juror Rehabilitation, 53 Mercer

L Rev 929, 941 (2002) (examining the practice of juror reha-

bilitation in Georgia in the context of a specific case).4 Other

research has confirmed what we recognized in Lambert:

Juror “rehabilitation” is ineffective at best and likely detri-

mental to the court’s goal of ensuring that all jurors are fair

and impartial.5 See Christopher A. Cosper, Rehabilitation of

the Juror Rehabilitation Doctrine, 37 Ga L Rev 1471, 1487

(2003) (noting that judicial rehabilitation of jurors is a com-

mon tool that is used to increase the efficiency of trials and

advocating for “close scrutiny” of the practice of juror reha-

bilitation); Barbara O’Brien & Catherine Grosso, Judges,

Lawyers, and Willing Jurors: A Tale of Two Jury Selections,

98 Chi Kent L Rev 107, 112 (2023) (noting that, “[w]hen

jurors say something to suggest a bias of any sort, judges

often attempt to rehabilitate that juror” but concluding that

that effort is ineffective in addressing juror bias); Jessica M.

4

In the case addressed by the Wright article, Walls v. Kim, 250 Ga App

259, 259, 549 SE2d 797, 799 (2001), aff’d, 275 Ga 177, 563 SE2d 847 (2002), the

Georgia Court of Appeals noted that some trial judges attempt to “rehabilitate”

jurors by asking them if they can set aside their biases and decide the case solely

on the evidence and the law, and then retain “these purportedly rehabilitated

jurors.” The court explained that “the better practice is for judges * * * to remove

such partial jurors, even when the question of a particular juror’s impartiality is

a very close call.” Id. 250 Ga at 260, 549 SE2d at 799.

5

Several commentators have noted that juror rehabilitation is especially inef-

fective when it is done by a judge. See Mark W. Bennett, Unraveling the Gordian

Knot of Implicit Bias in Jury Selection: The Problems of Judge-Dominated Voir Dire,

the Failed Promise of Batson, and Proposed Solutions, 4 Harv L & Pol’y Rev 149, 160

(2010) (stating that “empirical research suggests that potential jurors respond more

candidly and are less likely to give socially desirable answers to questions from law-

yers than from judges” (citing Susan E. Jones, Judge- Versus Attorney-Conducted

Voir Dire: An Empirical Investigation of Juror Candor, 11 Law & Hum Behav 131

(1987))); Caroline B. Crocker & Margaret Bull Kovera, The Effects of Rehabilitative

Voir Dire on Juror Bias and Decision Making, 34 Law & Hum Behav 212, 213 (2010)

(describing an empirical study that revealed that, “not only do venirepersons pro-

vide less candid information to judges than to attorneys, but also judges elicit inac-

curate information from venirepersons due to their choice of questions”).

118 State v. Villeda

Salerno, John C. Campbell, Hannah J. Phalen, Samantha

R. Bean, Valerie P. Hans, Daphna Spivack & Lee Ross, The

Impact of Minimal Versus Extended Voir Dire and Judicial

Rehabilitation on Mock Jurors’ Decisions in Civil Cases, 45

Law & Hum Behav 336, 336 (2021) (noting that “[j]udicial

rehabilitation did not reduce the biasing impact of their pre-

existing attitudes on case judgments but did result in mock

jurors reporting that they were less biased, despite evidence

that judicial rehabilitation did not actually reduce their

bias” (emphasis in original)).6

As one study explained, “[i]n a typical juror reha-

bilitation, the judge asks jurors individually, in front of

the remaining panel, whether they can set aside bias they

have already confessed and be fair. Social science evi-

dence strongly [suggests] * * * that jurors confronted with

this question from the bench almost invariably say, yes.”

Wright at 941-42 (internal quotation marks omitted). Those

results support this court’s conclusion in Lambert that a

juror’s unprompted statements regarding bias must be

given “much greater weight” than statements made after

the court or counsel attempt to “rehabilitate” the juror by

asking whether the juror can set aside her bias and be fair.

277 Or at 231. Posing close-ended questions to “rehabilitate”

a juror is an ineffective way to discern a juror’s actual biases

and achieve the goal of selecting a fair and impartial jury.

In this case, the trial judge gave greater weight to

juror 155’s responses to the judge’s questions, and, to some

extent, the prosecutor’s follow-up question asking the juror

if she could set aside her expressed bias and be fair, than

to her initial, unprompted statements of bias. The trial

court’s reliance on the juror’s responses to those questions

and its failure to give “much greater weight” to the juror’s

unprompted statements about her bias at the start of the

jury selection process exceeded the range of discretion

6

Although this case involves a juror’s express, rather than implicit, bias,

commentators have noted that juror rehabilitation is especially ineffective to

address a juror’s implicit bias. See Bennett at 160 (stating that the question

often asked by judges to rehabilitate a juror—Can you be fair and impartial in

this case?—“does not begin to address implicit bias, which by its nature is not

consciously known to the prospective juror”); id. (noting that “the trial judge is

probably the person in the courtroom least able to discover implicit bias by ques-

tioning jurors”).

Cite as 372 Or 108 (2024) 119

afforded under Lambert. Accordingly, we agree with the

Court of Appeals that the trial court abused its discretion in

denying defendant’s for-cause challenge to juror 155.

B. Whether the Error Is Grounds for Reversal

In criminal cases, an error is grounds for rever-

sal only if it “has prejudiced the defendant in respect to a

substantial right.” ORS 131.035; see also State v. Davis, 336

Or 19, 28, 77 P3d 1111 (2003) (stating that, under Article

VII (Amended), section 3, of the Oregon Constitution, this

court “must affirm a judgment, despite any error commit-

ted at trial, if, after considering all the matters submit-

ted, the court is of the opinion that the judgment ‘was such

as should have been rendered in the case’ ”). In Davis, we

explained that assessing whether there is little likelihood

that an error affected the outcome is the “constitutional test

for affirmance despite error.” 336 Or at 32.

Although ORS 131.035—whether the error “has

prejudiced the defendant in respect to a substantial right”—

is worded differently, we noted in Davis that the constitu-

tional analysis “is similar to” the analysis required by stat-

utes that “preclude reversal of a judgment for trial error in

the absence of a demonstration that the error affected the

substantial right of a party.” 336 Or at 29 n 7. In another

case, we cited both provisions without identifying any

meaningful difference between them, and no party in this

case contends that there is any difference between the stat-

utory and constitutional standards. See State v. Dulfu, 363

Or 647, 676, 426 P3d 641 (2018) (citing Or Const, Art VII

(Amended), § 3, and ORS 131.035 in determining whether

an error was harmless). Accordingly, in this case, our con-

clusion that the erroneous denial of defendant’s for-cause

challenge did not prejudice defendant in respect to a sub-

stantial right as required for reversal under ORS 131.035

also means that there was little likelihood that the error

affected the outcome, consistent with the constitutional test

for affirmance despite error described in Davis.

The state contends that the erroneous denial of

defendant’s for-cause challenge to juror 155 was not prejudi-

cial under State v. Megorden, 49 Or 259, 88 P 306 (1907), and

120 State v. Villeda

Barone. We stated in Megorden that the erroneous denial of

a challenge for cause to a juror excused peremptorily is not

prejudicial unless “the challenger was compelled to accept

an objectionable juror.” 49 Or at 263-64. We concluded in

Barone that peremptory challenges “have no constitutional

significance in and of themselves, and the fact that a defen-

dant is forced to use them to achieve an impartial jury does

not offend the right to a fair trial.” 328 Or at 72-73. The

state contends that an “objectionable juror” for purposes

of Megorden is a juror who should have been excluded for

cause, and that any “loss” of a peremptory challenge in this

context cannot be prejudicial under Barone unless the error

deprived a defendant of his right to a fair trial.

Defendant counters that the erroneous denial of his

for-cause challenge was prejudicial because it caused him to

use a peremptory challenge on juror 155 that he otherwise

could have used on one of two other jurors that he identi-

fied at the time, and one of those jurors served on the jury.

Defendant argues that this “loss” of a peremptory challenge

is prejudicial automatically under Highway Commission

v. Walker et ux, 232 Or 478, 485, 376 P2d 96 (1962), and

that we confirmed that presumption of prejudice in Montez.

Alternatively, defendant contends that our prior cases have

treated any juror that a party would have excused peremp-

torily as an “objectionable juror” for purposes of Megorden,

making the erroneous denial of defendant’s for-cause chal-

lenge in this case prejudicial because it forced him to accept

an “objectionable juror” that he would have been able to

excuse peremptorily if the court had not denied his for-cause

challenge.7

The state disagrees with defendant’s understanding

of Megorden and suggests that we should overrule Walker if

we conclude that it conflicts with this court’s decisions in

Megorden and Barone. As we shall explain, we conclude that

the trial court’s erroneous denial of defendant’s challenge

to juror 155 for cause did not “prejudice the defendant in

respect to a substantial right” as required for reversal under

7

Defendant assigned error solely to the trial court’s decision not to excuse

juror 155 for cause. Defendant did not separately assign error to the trial court’s

“rehabilitation” statements during voir dire. Accordingly, we are not called upon

to decided how prejudice is to be evaluated in that circumstance.

Cite as 372 Or 108 (2024) 121

ORS 131.035. To reach that conclusion, we need not overrule

Walker because the error in that case is different than the

error in this case.

We begin with defendant’s argument that his “loss”

of a peremptory challenge is presumed to be prejudicial

under Walker. In that condemnation action, both parties

had a statutory allotment of three peremptory challenges.

After each party had exercised two peremptory challenges,

the plaintiff—the State Highway Commission—declined to

use its final challenge on any of the 12 jurors that had been

seated on the panel. Defendants then exercised their third

peremptory challenge, and a new juror was seated. The state

then attempted to exercise its third peremptory challenge

on the new juror, but the trial court ruled that the state had

waived its third peremptory challenge by declining to exer-

cise it on any of the jurors on the previous panel. The only

issue on appeal was whether “the trial [court] erred when

[it] refused to permit the state to exercise its third peremp-

tory challenge.” Walker, 232 Or at 481.

To resolve that question, we cited the general rule

that applies when the parties “exercise their peremptory

challenges alternately, beginning with the plaintiff and con-

tinuing until one of them is satisfied with the jury as it is

then constituted and waives his next challenge.” Id. at 484.

When that occurs, we explained, a peremptory challenge

“waived by either party upon its becoming satisfied with

the jury as then constituted may later be exercised upon

a juror who is called to the box subsequent to the time the

challenge was waived.” Id. We concluded that the trial court

had erred because it did not allow the state to exercise its

third peremptory challenge “upon a juror who [was] called

to the box” after the state had passed on the 12 jurors who

had been seated on the previous panel. Id. We said that the

error “should be deemed prejudicial automatically” because,

otherwise, the statutory right to three peremptory chal-

lenges “is an empty one.” Id. at 485.

Thus, the error that was presumed prejudicial in

Walker was the trial court’s determination that the state

had “waived” one of the three peremptory challenges allot-

ted to it by statute. The error in this case is different. Here,

122 State v. Villeda

we agree with the Court of Appeals that the trial court erred

in denying defendant’s for-cause challenge to juror 155. But

the trial court did not find that defendant had “waived” any

of the six peremptory challenges allotted to him by stat-

ute, as in Walker. Because defendant was able to use all six

peremptory challenges allotted to him by statute, the error

in this case is different from the error that we presumed to

be prejudicial in Walker.

In addition, we determined in Baker v. English, 324

Or 585, 932 P2d 57 (1997), that Walker’s presumptive preju-

dice rule should be limited to the circumstances presented

in that case. In Baker, we noted that Walker had identified

“a narrow exception to the general principle that a party’s

rights ordinarily are not substantially affected by an error

that likely did not affect the outcome of the case,” but we

indicated that Walker’s “per se rule specifically for the pur-

pose of analyzing error pertaining to peremptory challenges

* * * should not be interpreted to reach beyond that context.”

Id. at 592 n 6. Accordingly, we decline to extend Walker’s

per se rule beyond the context of that case. Thus, the only

error pertaining to peremptory challenges that will be

“deemed prejudicial automatically” under Walker is errone-

ously denying a party the number of peremptory challenges

allotted by statute. See also State v. Durham, 177 Or 574,

164 P2d 448 (1945) (holding that the trial court commit-

ted reversible error “in denying [the] defendant the right of

peremptory challenge” when the court refused to allow the

defendant any peremptory challenges in selecting a jury for

sentencing under Oregon’s Habitual Criminal Act).8

There is no such error here. Defendant used all six

of the peremptory challenges allotted to him by statute,

and he does not contend in this court that the trial court

erred in refusing to allow him more than six peremptory

8

The Habitual Criminal Act applied in Durham was a 1927 statute that pro-

vided for an enhanced sentence of up to life imprisonment for a felony conviction

if the defendant had three prior felony convictions. The trial court in Durham

empaneled a jury at the time of sentencing to consider whether defendant had

been convicted of the requisite four felonies (including the current charge), but

the trial court determined in that special proceeding that defendant “was not

entitled to any peremptory challenge[s].” 177 Or at 579. This court reversed, con-

cluding that the legislature did not intend to deny defendant the right of peremp-

tory challenge when it enacted the Habitual Criminal Act. Id. at 581.

Cite as 372 Or 108 (2024) 123

challenges. Defendant contends, however, that he was effec-

tively denied the use of six peremptory challenges because

he was “forced” to use a peremptory challenge on juror 155,

leaving him with only five peremptory challenges to use on

other jurors. Defendant argues that we confirmed in Montez

that such a “loss” of a peremptory challenge is grounds for

reversal. We disagree with both contentions.

The erroneous denial of defendant’s for-cause chal-

lenge did not “force” him to use a peremptory challenge on

juror 155. Peremptory challenges are granted by statute “as

[a] matter of favor” or as a “privilege” to litigants. State v.

White, 48 Or 416, 425, 87 P 137 (1906). A peremptory chal-

lenge is something that a party may “use at [the party’s]

own discretion.” State v. Humphrey, 63 Or 540, 544, 128 P

824 (1912). Denying a for-cause challenge does not “force” a

party to use a peremptory challenge to excuse a juror it had

challenged for cause because a party might choose not to use

a peremptory challenge to excuse that juror. For example, in

Humphrey, the defendants chose to leave on the jury a juror

that they had previously challenged for cause, even though

they still had peremptory challenges available at the end of

jury selection. Id. at 544-45 (noting that the defendants had

challenged six jurors for cause, used peremptory challenges

to excuse five of those jurors, and did not use “any of the

remaining seven peremptory challenges allowed them by

statute” to excuse the other juror that they had challenged

for cause).

If we assume that defendant’s objective was to

accomplish what he would have accomplished if the trial

court had dismissed juror 155 for cause—removing that

juror from the jury—then the only way he could accomplish

that result was to use one of his peremptory challenges to

remove that juror. As explained below, we have described

that use of a peremptory challenge as “curing” the error,

but we have never described it as a prejudicial denial of a

substantial right. Defendant argues that we “confirmed” in

Montez, a capital case, that an erroneous denial of a chal-

lenge for cause is prejudicial error where a party uses one

of the allotted peremptory challenges to excuse the juror

in question, leaving it with one less peremptory challenge

124 State v. Villeda

to exercise on other jurors. That argument relies on our

“exhaustive discussion of the merits” of a for-cause chal-

lenge to a prospective juror in Montez, suggesting that we

undertook that discussion because we were “apparently sat-

isfied that the prejudice issue did not present an easy way

out.” But defendant reads too much into the fact that we

reviewed the merits of the for-cause challenges in Montez.

There, the defendant contended that the trial court

erred in excluding two prospective jurors who had expressed

opposition to the death penalty, and in denying the defen-

dant’s for-cause challenges with respect to two other pro-

spective jurors who had expressed support for the death

penalty. The defendant argued that those decisions “denied

him his right to an impartial jury” in violation of the Oregon

and United States Constitutions. Montez, 309 Or at 573. We

began our discussion on the merits of the defendant’s chal-

lenge to one of those prospective jurors with the observation

that, “[b]ecause [that juror] did not serve on the jury, the

only ‘prejudice’ to [the] defendant was that [the] defendant

had no remaining peremptory challenge to later excuse

[another prospective juror], who did serve on the jury.” Id. at

577.

Stating that “the only ‘prejudice’ ” to the defendant

was the fact that he had no remaining peremptory chal-

lenge to excuse a different juror does not mean that we had

decided that the error was prejudicial. Ultimately, we found

no basis in the record “to conclude that the trial court’s

decision not to excuse [that prospective juror] for cause was

reversible error.” Id. at 593. We further concluded that the

trial court did not abuse its discretion “in refusing to excuse

[the other juror] for cause.” Id. at 594. Because we found

no error in the trial court’s denial of any of the defendant’s

for-cause challenges in Montez, it was not necessary for us

to decide whether any error was prejudicial. See Parks v.

Farmers Ins. Co., 347 Or 374, 384, 227 P3d 1127 (2009) (the

fact that the court previously mentioned without deciding

an issue “simply reflects” that we “had no reason to consider

the issue”).

Defendant alternatively contends that, because the

error in this case resulted in seating a juror that he would

Cite as 372 Or 108 (2024) 125

have excused peremptorily, it was prejudicial under Megorden,

because he was “compelled to accept an objectionable juror.”

49 Or at 263-64. Defendant asserts that our case law has

recognized that any juror whom a party would have excused

peremptorily is an “objectionable” juror for purposes of estab-

lishing prejudice under Megorden. But, as explained below,

none of the cases cited by defendant held that an “objection-

able juror” for purposes of Megorden is a juror whom a party

would have excused peremptorily if another challenge had

been available. We begin our discussion of those cases with

Ford v. Umatilla County, 15 Or 313, 16 P 33, reh’g den, 15

Or 323, 16 P 38 (1887), which does provide some support for

defendant’s argument.

The plaintiff in Ford sued Umatilla County for

damages after a bridge collapsed while plaintiff was driving

his team of horses and a wagon across it, killing two horses,

and badly damaging his personal property. During jury

selection, plaintiff’s counsel argued that jurors who were

taxpayers in Umatilla County should be excused for implied

bias. The trial court generally agreed and excused several

prospective jurors on that basis.9 The county then sought

to excuse a juror for cause on the same grounds; plaintiff

objected, and the trial court sustained the objection, deny-

ing the county’s for-cause challenge. The county then used

a peremptory challenge to remove that juror and contended

on appeal that the trial court had committed reversible error

in denying its challenge for cause. This court disagreed,

concluding that the county, “having afterwards challenged

the juror peremptorily, thereby waived [its] challenge for

cause.” 15 Or at 322. The county moved for rehearing, but

the court adhered to its ruling, noting that the only reason

given for excusing the juror for cause was that he was a tax-

payer in Umatilla County. The court explained that “being

a tax-payer of the county interested him in deciding in [the

county’s] favor” so the county “must have had other reasons

for objecting to his sitting.” Ford v. Umatilla County, 15 Or

9

Unlike actual bias, a challenge for cause for “implied basis” is based solely

on a prospective juror’s relationship to the parties involved, prior involvement in

the case, or interest in the outcome of the case. See ORCP 57 D(1)(c) - (f) (listing

reasons). The Ford court did not explain why it thought that being a taxpayer of a

county that had been sued for damages gave rise to implied bias; taxpayer status

would not be a basis for a challenge for cause for implied bias under current law.

126 State v. Villeda

323, 325-26, 16 P 38 (1887) (on petition for rehearing). Under

those circumstances, the court continued, the county “was

not compelled to resort to a peremptory challenge in order

to exclude the juror for grounds for which he had been chal-

lenged for cause.” Id. at 325. Rather, the court concluded, if

a party chooses to use a peremptory challenge to excuse a

juror for reasons other than the reasons given for challeng-

ing the juror for cause, the party “should be deemed to have

waived his right to insist upon the former objection.” Id. at

326.

The court then stated:

“If the grounds of the challenge for cause had been of such

a nature as would have been likely to prejudice the juror

against [the county], and [the county] had been put to its

peremptory challenge in order to exclude him, there would

be more reason for claiming that the error was prejudicial.”

Id. (emphasis added). But the court went on to explain that,

“under the circumstances, as they exist, no such presumption

can be drawn.” Id. Given that context, the statement that

there would be “more reason” to find prejudicial error under

circumstances not presented in that case is clearly dicta and,

as our subsequent cases (discussed next) demonstrate, we

have never adopted that dicta in determining whether using

a peremptory challenge to excuse a juror who should have

been excused for cause makes the error prejudicial.

In some cases, we have indicated that using a

peremptory challenge to excuse a juror who should have

been excused for cause “cures” the error. See, e.g., Humphrey,

63 Or at 544 (“It is well settled that, although the court sit-

ting in the trial of the cause may have erred in overruling

a challenge for cause, yet the error is cured by the exercise

of a peremptory challenge against the juror in question.”);

Twitchell v. Thompson, 78 Or 285, 289, 153 P 45 (1915)

(where plaintiff used peremptory challenges to excuse jurors

that plaintiff had challenged for cause, any claim that the

court erred in denying the for-cause challenges was “dis-

posed of” by the decision in Humphrey); State v. Layton, 174

Or 217, 234, 148 P2d 522 (1944) (rejecting the defendant’s

argument that the trial court erred in denying his for-cause

challenges to two jurors because defendant removed those

Cite as 372 Or 108 (2024) 127

jurors peremptorily, so “[i]f any error was committed, it was

cured by the exercise of the peremptory challenges”).

Other cases have framed the issue in terms of waiver

or lack of prejudice, but none followed the dicta in Ford. For

example, in State v. Rathie, 101 Or 339, 349, 199 P 169 (1921),

overruled in part on other grounds by State v. Brewton, 238

Or 590, 395 P2d 874 (1964), we stated that “[i]t is the rule in

this state that error of the court in refusing to allow a chal-

lenge to a juror for cause is waived if the party objecting,

after exhausting his peremptory challenges, accepts with-

out objection other jurors to complete the panel.” In State v.

Douglas, 310 Or 438, 441-42, 800 P2d 288 (1990), we con-

cluded that, where the defendant exhausted his peremptory

challenges to remove a juror whom he had challenged for

cause, there was a “lack of demonstrated prejudice” because

the defendant had failed to show “that the final jury panel

was inappropriate in any way.”10

Two other cases cited by defendant merely apply the

principle established in Humphrey that an erroneous denial

of a challenge for cause is not prejudicial error if the defen-

dant does not exhaust the allotted peremptory challenges.

See Mount v. Welsh et al, 118 Or 568, 579, 247 P 815 (1926)

(stating that “[t]he rule in this jurisdiction” is that “until

a defendant’s peremptory challenges are exhausted, [they

are] not in a position to complain of the overruling of [their]

challenge for cause to any particular juror who afterwards

serves on the panel”); State v. Farrar, 309 Or 132, 158, 800

P2d 288 (1990) (holding that, where a defendant “did not

exhaust his statutory allocation” of peremptory challenges

and did not establish “that any member of the jury panel

that actually decided his guilt should have been excused for

cause[,]” defendant has failed “to identify any prejudice that

may have resulted from the ruling [on a challenge for cause]

even if it were error”).

Thus, none of the cases that defendant cites held that

an “objectionable juror” for purposes of determining prejudicial

10

Rathie’s characterization of a party’s failure to object to any remaining

jurors for cause after exhausting all peremptory challenges as a “waiver” was

discarded in Douglas, where we stated that Megorden “more accurately described

the reason for the rule, which is a lack of demonstrated prejudice.” 310 Or at 441.

128 State v. Villeda

error under Megorden is a juror whom a party would have

excused peremptorily. Although dicta in Ford suggests other-

wise, no other case has adopted that position. To the contrary,

our recent cases have suggested—also without expressly hold-

ing—that an “objectionable” juror for purposes of determining

prejudicial error under Megorden is a juror who would have

been excused for cause. For example, in Douglas, after quot-

ing the “objectionable juror” rule in Megorden, we concluded

that there was no prejudicial error absent a showing that “the

final jury panel was inappropriate in any way.” 310 Or at 442.

Although we did not explain in Douglas what we meant by

“inappropriate,” we had earlier stated in Farrar that any error

in denying a for-cause challenge was not prejudicial, in part,

because defendant did not show “that any member of the jury

panel that actually decided his guilt should have been excused

for cause.” 309 Or at 158 (emphasis added).

That statement suggests that an “objectionable” or

“inappropriate” juror for purposes of determining prejudice

is a juror who should have been excused for cause. That is

what happened in Lambert. There, as noted above, we con-

cluded that the trial court abused its discretion in denying

the plaintiffs’ challenge for cause to a juror based on his

actual bias. That juror sat on the jury that decided the case

because the plaintiffs had exhausted their peremptory chal-

lenges. We concluded that the trial court’s error was preju-

dicial, because, by allowing a juror who should have been

excused for cause to sit on the jury, the court “deprived [the

plaintiffs] of the right to have their issues determined by an

impartial juror.” 277 Or at 231.

Our observation in Farrar and our conclusion in

Lambert are supported by other cases that describe peremp-

tory challenges as a tool that can be used to help avoid

infringing upon a party’s right to a fair trial with impartial

jurors. None of those cases suggests that, when a party uses

one of its allotted peremptory challenges to excuse a juror

when the party might have preferred to use the challenge

to excuse a different qualified juror amounts to prejudice

to a substantial right. For example, we stated in Barone

that peremptory challenges “have no constitutional signif-

icance in and of themselves.” 328 Or at 72. We explained

Cite as 372 Or 108 (2024) 129

that peremptory challenges help “guarantee the impartial-

ity of the jury that sits on the case,” but “the fact that a

defendant is forced to use them to achieve an impartial jury

does not offend the right to a fair trial.” Id. at 72-73. And,

as we stated in Humphrey, “the law has provided not only

challenges for cause, but also those peremptory to enable the

defendant to protect his right to a fair and impartial jury.” 63

Or at 545 (emphasis added). That suggests that, although a

defendant certainly has a “substantial right” to a fair trial

with impartial jurors, denying a defendant the opportunity

to seat a juror that the defendant would prefer over another

qualified juror is not prejudicial to any substantial right.11

That suggestion is supported by our description of

the nature of peremptory challenges in Megorden, where we

framed the issue as follows: “The simple question, after the

peremptory challenges are exhausted, is: Is the jury which

finally tries the case impartial?” 49 Or at 264 (internal quo-

tation marks omitted). If so, we explained, there is no prej-

udicial error because “[a]ll that the [c]onstitution, all that

the law, requires and demands is a trial by an impartial

jury.” Id. (internal quotation marks omitted). We further

explained that “[t]he right to challenge is the right to reject,

not to select, a juror. If from those who remain, an impartial

jury is obtained, the constitutional right of the accused is

maintained.” Id. (quoting Hays v. Missouri, 120 US 68, 71,

7 S Ct 352, 30 L Ed 578 (1887)).12

11

The conclusion that a party does not have a protected “right” to seat

one qualified juror over another is supported by the well-documented abuse of

peremptory challenges for racially discriminatory purposes, which led Arizona to

abolish them entirely. See Arizona Supreme Court Order No. R-21-0020 (Aug 30,

2021) (amending rules of criminal and civil procedure to eliminate peremp-

tory challenges); see also Batson v. Kentucky, 476 US 79, 102-03, 106 S Ct 1712,

90 L Ed 2d 69 (1986) (Marshall, J., concurring) (“The decision today will not

end the racial discrimination that peremptories inject into the jury-selection

process. That goal can be accomplished only by eliminating peremptory chal-

lenges entirely.”). Other states have limited the use of peremptory challenges

for the same reason. See Willamette University College of Law Racial Justice

Task Force, Remedying Batson’s Failure to Address Unconscious Juror Bias in

Oregon, 57 Willamette L Rev 85 (2021) (calling for reform and describing court

rules adopted in Washington and California that specify presumptively invalid

reasons for exercising peremptory challenges).

12

The Megorden court cited with approval its then-recent decision in State

v. White, 48 Or 416. In White, we held that the trial court did not abuse its dis-

cretion in excusing two jurors for cause—and seating two new jurors—after the

defendant had used all his peremptory challenges. We explained that the fact

130 State v. Villeda

That position is also supported by our more recent

decision in Barone, a capital case, where we rejected the

defendant’s argument that the erroneous denial of his chal-

lenges for cause was prejudicial. Although the denial of

those challenges resulted in the defendant using peremp-

tory challenges “that he could have used to exclude other

jurors who were objectionable to him, who did remain on

the jury,” he was not required to accept a juror who should

have been excused for cause. 328 Or at 72. We acknowledged

that, if the trial court had excused the challenged prospec-

tive jurors for cause, the defendant “would have used his

peremptory challenges differently and, as a result, would

have been tried by a jury with a different membership.” Id.

But, we explained, the state and federal constitutions do

not give a defendant “a right to exclusive control over the

composition of the trial jury.” Id. Rather, peremptory chal-

lenges help “guarantee the impartiality of the jury that sits

on the case.” Id. Thus, although those challenges play a role

in ensuring an impartial jury, they “have no constitutional

significance in and of themselves, and the fact that a defen-

dant is forced to use them to achieve an impartial jury does

not offend the right to a fair trial.” Id. at 72-73.

In summary, as explained above, an error is

grounds for reversal only if the error prejudiced the appel-

lant in respect to a substantial right.13 Even if we pre-

sume that defendant effectively “lost” a peremptory chal-

lenge when the trial court denied his for-cause challenge

to juror 155, peremptory challenges “have no constitutional

that a party had exhausted his peremptory challenges before a juror was excused

for cause “invaded no right” of that party, because a peremptory challenge “is

not aimed at disqualification, but is exercised upon qualified jurors as a matter

of favor to the challenger.” Id. at 425 (quoting O’Neil v. Lake Superior Iron Co., 67

Mich 560, 562, 35 NW 162, 163 (1887) (emphasis added)). Thus, we held that, if a

party “has exercised the privilege [of peremptory challenges] to the extent given

by the statute, it cannot be alleged as error that qualified jurors are afterwards

drawn or placed in the panel.” Id. The reason, we explained, is that the party’s

“right to have his case tried before a fair, impartial and qualified jury remains

unimpaired[.]” Id.

13

In light of our conclusion that the trial court’s error in denying defendant’s

for-cause challenge was not prejudicial in respect to a substantial right, we do

not think it is necessary to remand to the Court of Appeals to consider whether

the trial court abused its discretion in declining to grant defendant an additional

peremptory challenge, as he asserted in his second assignment of error in the

Court of Appeals.

Cite as 372 Or 108 (2024) 131

significance in and of themselves.” Barone, 328 Or at 72.

Peremptory challenges also have no statutory significance

in and of themselves other than the right to use the number

of peremptory challenges allotted by statute.14 Defendant’s

statutory right to use six peremptory challenges is a right

“to reject, not to select, a juror.” Megorden, 49 Or at 264.

Thus, any error in denying defendant’s for-cause challenge

to juror 155 meant, at most, that defendant lost the ability to

reject another qualified juror that he would have preferred

to excuse from the jury. That “loss” was not prejudicial to

defendant in respect to a substantial right, as required for

reversal under ORS 131.035.15

That conclusion is consistent with our cases holding

that an erroneous denial of a challenge for cause is reversible

error only if a juror who decided the case was not fair and

impartial. It is also consistent with the nature and purpose

of peremptory challenges as a tool to help protect the funda-

mental right to a trial to a fair and impartial jury. Defendant

does not contend that any of the jurors who decided this case

were not fair and impartial. Accordingly, the trial court’s

error in denying defendant’s challenge for cause to juror 155

was not prejudicial to defendant in respect to a substantial

right.

III. CONCLUSION

We agree with the Court of Appeals that the trial

court abused its discretion when it denied defendant’s chal-

lenge for cause to juror 155 on the grounds of actual bias

but conclude that that error is not grounds for reversal

14

Defendant does not contend that peremptory challenges have any stat-

utory significance in and of themselves other than as recognized in our prior

cases. But as we have explained, the only statutory significance of peremptory

challenges that we have recognized is the right to use the number of peremptory

challenges allotted by statute.

15

To be clear, we are not saying that the only right that would be considered

a “substantial right” under ORS 131.035 is a right that affects a party’s right to

a fair trial or is otherwise constitutionally significant. Statutory rights may also

be “substantial” for purposes of ORS 131.035. For example, as explained above,

we held in Walker and in Durham that erroneously refusing to allow a party

to exercise the number of peremptory challenges allotted by statute would be

deemed prejudicial error. But an erroneous denial of a for-cause challenge is not

prejudicial under ORS 131.035 where the challenged juror is excused perempto-

rily unless the error affected the defendant’s right to a fair trial before impartial

jurors.

132 State v. Villeda

under ORS 131.035 because it did not prejudice defendant

in respect to a substantial right.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court is affirmed.