A recent decision of the Kentucky Court of Appeals highlights an important common-law procedure relating to preservation of error of a trial court’s denial of a challenge for cause of a member of the jury panel. In Collins v. Commonwealth (2023-CA-1291, issued May 16, 2025), the Court, in a decision by Judge Glenn Acree, outlined the six steps that a litigant must take to preserve the denial of a for-cause challenge for appeal. The decision, which is not yet final as of this writing, relied on a change to the procedure enunciated by the Kentucky Supreme Court in Floyd v. Neal , 590 S.W.3d 245 (Ky. 2019).
Specifically, a litigant must take six steps in order to preserve the denial of a for-cause challenge for appeal and avoid a finding of harmless error. First, the party must have made a motion to strike a juror for cause that was denied by the trial court. Second, the party must then use a peremptory challenge on that juror on the jury strike sheet (Form AOC-13) and use all of that party’s other peremptory challenges. Third, the party must clearly indicate on the strike sheet another juror as an alternate peremptory challenge the litigant would have struck if not forced to use a peremptory strike on the juror the trial court denied to remove for cause. Fourth, the litigant must designate on the strike sheet the same number of alternate peremptory challenges as the number of strikes for cause that were denied. Fifth, the alternate peremptory challenges must be made known to the trial court before the jurors for whom the challenges for cause were overruled are dismissed and the jury is empaneled. Sixth, a juror identified as an alternate peremptory challenge on the strike sheet must end up sitting on the jury. If the appellate court then determines that the challenge for cause was erroneously overruled, the appellant is entitled to reversal.
The rationale for this procedure is two-fold. First, forcing a litigant to use a peremptory challenge on a juror who should have been excused for cause violates a substantial right of the litigant. Second, however, the trial court’s denial of a for-cause challenge will be deemed harmless error unless the appellate court is able to determine with certainty that the juror on whom the challenging party would otherwise have used a peremptory challenge actually sat on the jury.
This procedure, which was first handed down in criminal cases and has evolved over time, applies equally to civil cases. Before Floyd v. Neal and Collins v. Com., prior cases on this point include Grubb v. Norton Hospitals, Inc., 401 S.W.3d 483 (Ky. 2013); Gabbard v. Com., 297 S.W.3d 844 (Ky. 2009); King v. Com., 276 S.W.3d 270 (Ky. 2009); and Shane v. Com., 243 S.W.3d 336 (Ky. 2007).
The Kentucky Civil Rules Review Task Force that is currently making recommendations to the Supreme Court’s Civil Rules Committee for amending the Rules of Civil Procedure has proposed that Civil Rule 47.03 be amended to include this common-law procedure. More information on challenges for cause can be found in Comment 6 to CR 47.03 in 7 Kentucky Practice, Rules of Civil Procedure Annotated (2024 Ed.).
NOTE: This post contains commentary from the 2024 edition and the forthcoming 2025 edition of 7 Kentucky Practice, Rules of Civil Procedure Annotated, by David V. Kramer, with permission of the author and publisher. Copyright (c) 2025 Thomson Reuters. For more information about this publication, click here.
