Jury selection; peremptory challenges; swearing of jury; alternate or additional jurors

22-3412. Jury selection; peremptory challenges; swearing of jury; alternate or additional jurors. (a) (1) For crimes committed before July 1, 1993, peremptory challenges shall be allowed as follows: (A) Each defendant charged with a class A felony shall be allowed 12 peremptory challenges. (B) Each defendant charged with a class B felony shall be allowed eight peremptory challenges. (C) Each defendant charged with a felony other than class A or class B felony shall be allowed six peremptory challenges. (D) Each defendant charged with a misdemeanor shall be allowed three peremptory challenges. (E) Additional peremptory challenges shall not be allowed on account of separate counts charged in the complaint, information or indictment. (F) The prosecution shall be allowed the same number of peremptory challenges as all the defendants. (2) For crimes committed on or after July 1, 1993, peremptory challenges shall be allowed as follows: (A) Each defendant charged with an off-grid felony, a nondrug felony ranked at severity level 1, or a drug felony ranked at severity level 1 or 2, shall be allowed 12 peremptory challenges. (B) Each defendant charged with a nondrug felony ranked at severity level 2, 3, 4, 5 or 6, or a drug felony ranked at severity level 3 or 4, shall be allowed 8 peremptory challenges. (C) Each defendant charged with an unclassified felony, a nondrug severity level 7, 8, 9 or 10, or a drug severity level 5 felony, shall be allowed six peremptory challenges. (D) Each defendant charged with a misdemeanor shall be allowed three peremptory challenges. (E) The prosecution shall be allowed the same number of peremptory challenges as all defendants. (F) The most serious penalty offense charged against each defendant furnishes the criterion for determining the allowed number of peremptory challenges for that defendant. (G) Additional peremptory challenges shall not be allowed when separate counts are charged in the complaint, information or indictment. (H) Except as otherwise provided in this subsection, the provisions of this section shall apply. In applying the provisions of this section, the trial court may determine the number of peremptory challenges to allow by reviewing the classification for the crime charged, or nearest comparable felony, as it was classified under the criminal law in effect prior to July 1, 1993. If the severity level of the most serious crime charged raises the potential penalty above that of another crime which was classified higher under the criminal law in effect prior to July 1, 1993, the defendant shall be allowed the number of peremptory challenges as for that higher classified crime under the prior system. (I) The trial court shall resolve any conflicts with a liberal construction in favor of allowing the greater number of peremptory challenges. (b) After the parties have interposed all of their challenges to jurors, or have waived further challenges, the jury shall be sworn to try the case. (c) A trial judge may empanel one or more alternate or additional jurors whenever, in the judge's discretion, the judge believes it advisable to have such jurors available to replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable to perform their duties. Such jurors shall be selected in the same manner, have the same qualifications, and be subject to the same examination and challenges and take the same oath and have the same functions, powers and privileges as the regular jurors. Such jurors may be selected at the same time as the regular jurors or after the jury has been empaneled and sworn, in the judge's discretion. Each party shall be entitled to one peremptory challenge to such alternate jurors. Such alternate jurors shall be seated near the other jurors, with equal power and facilities for seeing and hearing the proceedings in the case, and they must attend at all times upon the trial of the cause in company with the other jurors. They shall obey the orders of and be bound by the admonition of the court upon each adjournment, but if the regular jurors are ordered to be kept in custody during the trial of the cause, such alternate jurors also shall be kept in confinement with the other jurors. Upon final submission of the case to the jury, the alternate jurors may be discharged or they may be retained separately and not discharged until the final decision of the jury. If the alternate jurors are not discharged on final submission of the case and if any regular juror shall be discharged from jury service in any such action prior to the jury reaching its verdict, the court shall draw the name of an alternate juror who shall replace the juror so discharged and be subject to the same rules and regulations as though such juror had been selected as one of the original jurors. History: L. 1970, ch. 129, § 22-3412; L. 1973, ch. 144, § 1; L. 1981, ch. 155, § 1; L. 1983, ch. 114, § 1; L. 1984, ch. 39, § 43; L. 1994, ch. 291, § 62; L. 1996, ch. 214, § 35; L. 1998, ch. 192, § 7; L. 2009, ch. 61, § 2; L. 2012, ch. 150, § 41; July 1. Source or Prior Law: 62-1402, 62-1403. Cross References to Related Sections: Challenges in civil actions, see 60-247. Alternate jurors in civil actions, see 60-248. Law Review and Bar Journal References: Review of 1973 legislative session, Robert F. Bennett, 42 J.B.A.K. 153, 159 (1973). "Excluding Death Penalty Opponents from Capital Juries: Witt, Witherspoon, and the Impartial Juror," Steven K. Linscheid, 34 K.L.R. 149, 150 (1985). "Constitutional Law: Does 'Death Qualification' Spell Death for the Capital Defendant's Constitutional Right to an Impartial Jury? [Lockhart v. McCree, 106 S.Ct. 1758 (1986)]," 26 W.L.J. 389 (1987). "Whatever Happened to the Peremptory Challenge?" Edward V. Byrne, 63 J.K.B.A. No. 7, 18, 20 (1994). CASE ANNOTATIONS 1. Excluding all members of a race by exercise of peremptory challenges did not alone deprive accused of fair trial. State v. King, 219 Kan. 508, 510, 548 P.2d 803. 2. Citation of another section rather than this section as applicable in prosecution for burglary and battery held harmless error. State v. Bircher, 2 Kan. App. 2d 15, 17, 573 P.2d 1128. 3. Applied; requesting of jurors that state be given fair trial not error. State v. Stuart and Jones, 223 Kan. 600, 603, 575 P.2d 559. 4. No error in impaneling only twenty-four jurors; defendant waived further peremptory challenges by expressing satisfaction with jury. State v. Trujillo, 225 Kan. 320, 325, 590 P.2d 1027. 5. Black members of jury panel removed by peremptory challenge of state; no challenge to racially mixed array; conviction of aggravated robbery affirmed. State v. Taylor, 225 Kan. 788, 795, 594 P.2d 211. 6. Manner of selection of jury did not deprive defendant of fair trial by impartial jury; discretion of court. State v. Ekis, 2 Kan. App. 2d 658, 659, 586 P.2d 288. 7. Substitution of alternate for juror for reasonable cause within prerogative and discretion of trial court. State v. Folkerts, 229 Kan. 608, 616, 629 P.2d 173 (1981). 8. Defendant's presence at conference for announcing peremptory challenges not essential to fair trial. State v. Marks, 231 Kan. 645, 651, 647 P.2d 1292 (1982). 9. Manner in which challenges made allowed state to exercise six challenges after defendants had expended their challenges; selection of jurors within discretion of court absent abuse. State v. Heck, 8 Kan. App. 2d 496, 503, 661 P.2d 798 (1983). 10. Replacement of juror after deliberations begun considered; provisions of K.S.A. 22-3410 (challenges for cause) not incorporated herein. State v. Haislip, 237 Kan. 461, 467, 701 P.2d 909 (1985). 11. Cited; peremptory challenges of members of defendant's minority race or group examined. State v. Hood. 242 Kan. 115, 116, 744 P.2d 816 (1987). 12. Cited; discharge of juror after empaneling and selection of alternate or additional jurors examined. State v. Helms, 242 Kan. 511, 515, 748 P.2d 425 (1988). 13. Prosecutor's explanation of peremptory challenges of members of jury panel belonging to defendant's race examined. State v. Belnavis, 246 Kan. 309, 311, 787 P.2d 1172 (1990). 14. Failure to allow peremptory challenges made impossible to proceed with trial; mistrial appropriately granted. State v. Smith, 16 Kan. App. 2d 478, 479, 825 P.2d 541 (1992). 15. Discharge of juror and substitution of alternate by trial court after ex parte conversation with juror not ground for mistrial; illness of juror was reasonable cause. State v. Minski, 252 Kan. 806, 814, 850 P.2d 809 (1993). 16. Whether court abused discretion by excusing juror without reasonable cause during hard 40 deliberations examined. State v. Stafford, 255 Kan. 807, 823, 878 P.2d 820 (1994). 17. Under facts dismissal of juror was without reasonable cause constituting abuse of discretion; reversible error requiring new trial. State v. Cheek, 262 Kan. 91, 100, 102, 936 P.2d 749 (1997). 18. Right to impartial jury not violated where defendant claimed peremptory challenges were used to correct judicial error. State v. Heath, 264 Kan. 557, 558, 957 P.2d 449 (1998). 19. No reversible error in substituting alternate juror; court not required to declare mistrial. State v. Fulton, 269 Kan. 835, 9 P.3d 18 (2000). 20. No abuse of discretion by refusing to excuse a juror; defendant did not meet burden of establishing substantial prejudice. State v. Jones, 283 Kan. 186, 203, 207, 151 P.3d 22 (2007). 21. Juror's personal conflict sufficient to substitute original juror. State v. Davis, 284 Kan. 728, 731, 163 P.3d 1224 (2007). Previous | Next LEGISLATIVE COORDINATING COUNCIL General Policies 2026 Archived LCC Documents Archived LCC Meetings REVISOR OF STATUTES Archived Session Documents Archived School Finance Documents USEFUL LINKS Session Laws Kansas Administrative Regulations OTHER LEGISLATIVE SITES Kansas Legislature Administrative Services Division of Post Audit Research Department Contact Us PDF Help www.ksrevisor.gov 2026