Redd v. Negley
In Redd v. Negley, 785 P.2d 1098 (Utah 1989), the timeliness of a challenge to the composition of the jury was squarely before the court.
There, the plaintiff apparently raised the issue of the composition of the selected jury off the record before the jury was sworn. Id. at 1099.
After the jury was sworn and dismissed for lunch, the plaintiff made a vague objection on the record regarding the number of minority jurors on the petit jury. Id. at 1099-1100.
The trial court denied the plaintiff's objection under section 78-46-16, ruling that the objection had not been raised before the jury was sworn. Id. at 1100.
On appeal, this court disagreed as to the proper way to view the plaintiff's vague objection. The majority believed the plaintiff's objection amounted only to an objection that there was not a proportionate number of minority jurors on the petit jury. Id. at 1100-01.
In contrast, the dissent stated that the plaintiff's objection could also be characterized as an objection to the composition of the jury venire or to the defense's use of peremptory challenges to remove the only two minority members from the selected panel--in other words, a Batson challenge. Id. at 1103-04 (Durham, J., dissenting).
However, the court drew no distinction between these characterizations in its treatment of the plaintiff's objection. Rather, the court noted that the record indicated "that plaintiff objected to the jury selection prior to the swearing of the jury and that the jury was passed for cause only with the reservation that plaintiff's challenge could be later made." Id. at 1100.
The court held that because the challenge was raised before the jury was sworn in, the trial court had erred in denying the challenge on timeliness grounds, citing both section 78-46-16 and State v. Bankhead. Id.