specially concurring.
Because I am bound by our supreme court's jurisprudence in this area, I must agree with the majority's holding that defendant's conviction has to be reversed. See People v. Smith, 183 P.3d 726, 729 (Colo.App.2008) (Colorado Court of Appeals is bound by decisions of Colorado Supreme Court). The conviction must be reversed because the trial court erred when it did not grant defendant's challenge for cause to Juror R. I write separately to express my hope that our supreme court will review this case to decide whether this strict remedy of automatic reversal in these cireumstances should be replaced by a remedy based on harmless error analysis.
This case presents a common scenario. A defendant challenges a juror for cause, and the trial court denies the challenge. The defendant then exercises a peremptory challenge, removing that juror and exhausts all the allotted peremptory challenges.
If we conclude that the trial court's denial of the challenge for cause was erroneous, we must, in such cases, reverse the defendant's conviction. See People v. Macrander, 828 P.2d 234, 242-44 (Colo.1992). We must do so even if there is no indication in the record that any juror who actually deliberated was biased or partial, which means that we must do so even if-as I believe to be the case here-defendant received the fair trial by a fair and impartial jury that the Constitution guaranteed him.
I respectfully submit that the existing remedy for this error is unnecessarily absolute and an artifact of a bygone era. Our law concerning harmless error has evolved significantly since our supreme court first adopted this remedy. If the court were writing on a clean slate today, I am convinced that it would reach a different conclusion in light of significant authority supporting a different remedy. As it is, Colorado is one of a rapidly dwindling number of states that still requires the remedy of automatic reversal for such errors.
Other judges on this court have previously raised various concerns about this remedy. Two have done so in published opinions. See People v. Novotny, - P.3d -, - (Colo.App.2010) (Connelly, J., specially concurring); People v. Merrow, 181 P.3d 319, 322-23 (Colo.App.2007) (Webb, J., specially concurring). Two others, Judge Furman and Judge J. Jones, have done so in unpublished opinions. I write to add my voice to theirs.
I. Origins of the Automatic Reversal Remedy
A. The Genesis of Colorado's Remedy
As early as 1885, our supreme court held that it would not reverse a conviction in which the trial court had erroneously denied the defendant's challenge for cause to a juror because the defendant did not also exhaust his peremptory challenges. Minich v. People, 8 Colo. 440, 449, 9 P. 4, 10 (1885). This holding implied that if all peremptory challenges had been exhausted, the conviction would have been reversed. At that time, such a result was automatic in many other states when all peremptory challenges had been used. E.g., State v. Brown, 15 Kan. 400 (1875).
What was implicit in 1885 became explicit in 1911. In Denver City Tromway Co. v. Kennedy, 50 Colo. 418, 423, 117 P. 167, 169 (1911) (Kennedy), the supreme court expressed the rationale for the remedy of automatic reversal that we apply today:
Here a right given the defendant by statute was denied. The injury complained of was the denial of a statutory right. That is the error the court committed, and that is the injury complained of, the result of which compelled the defendant to exhaust one of its peremptory challenges on this juror when it was entitled to have him excused without so doing. This left the defendant one less peremptory challenge to be used upon others.... Had the objection been sustained, the personnel of the *392jury would have been different. As to what effect this might or might not have had upon the ultimate result of the trial is a matter of pure conjecture and is not for the trial court, or even this court, to make a guess at.
In other words, a defendant in Colorado has an "absolute right" to "the use of all peremptory challenges granted him by statute," and, if this right is denied by a court's erroneous ruling, there will be reversible error "because the jury so forced upon the [defendant] is not a statutory tribunal." Harris v. People, 113 Colo. 511, 520, 160 P.2d 372, 377 (1945). Our supreme court characterized Kennedy's reasoning as "unassailable" in criminal cases. Macrander, 828 P.2d at 243.
B. The Exchequer Rule
However, Kennedy was decided during a time when the general analysis of error in criminal cases was significantly different than it is today. Many states had adopted the so-called Exchequer Rule, under which even slight errors created a presumption of prejudice that almost mechanically required reversal. See State v. Rodriguez, 254 S.W.3d 361, 368 (Tenn.2008); see also William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am.Crim. L.Rev. 1391, 1419-20 (2001). One prominent commentator, writing in 1919, described how the Exchequer Rule worked.
Of course all courts go so far as to deny a new trial if the error could not have been prejudicial; and all would grant a new trial if it is affirmatively shown that the error must have been prejudicial. Under the prevailing [Exchequer] [Rjule in this country, in the absence of a statute, it is held that a new trial will be granted if the error might have been prejudicial.
Austin W. Scott, The Progress of the Law, 1918-1919 Civil Procedure, 33 Harv. L.Rev. 236, 250 (1919).
Under the Exchequer Rule, many criminal convictions were reversed for reasons that we would deem trivial, insignificant, or technical today. For example, "convicted murderers [were granted] new trials because of the misspelling of non-essential words or other typographical errors in the indictment, or minor and inconsequential evidentiary errors at trial." Roger A. Farifax, Jr., A Fair Trial, Not a Perfect One: The Early Twentieth-Century Campaign for the Harmless Error Rule, 93 Marq. L.Rev. 433, 436 (Winter 2009).
The Exchequer Rule turned trials into sporting events in which the goal was to sow the record with reversible error. Kotteakos v. United States, 328 U.S. 750, 759, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). Many conviec-tions were reversed, only to endure "the same matching of wits" on retrial. Id. At the beginning of the twentieth century, American appellate courts were seen as "tower[ing] above the trials of criminal cases as impregnable citadels of technicality." Id. (quoting Marcus A. Kavanagh, Improvement of Administration of Criminal Justice by Exercise of Judicial Power, 11 A.B.A. J. 217, 222 (1925)).
Whether Colorado has explicitly followed the Exchequer Rule is unclear because specific reference to it does not appear in any published Colorado case. On the one hand, there are hints that the Exchequer Rule was applied in some situations, or at least considered. See, e.g., Painter v. Wilcox, 52 Colo. 639, 642, 125 P. 503, 504 (1912) ("It has frequently been held that error will be presumed prejudicial unless it is made to affirmatively appear that it is not. This rule, however, is not universal."); Denver City Tramway Co. v. Cowan, 51 Colo. 64, 74, 116 P. 136, 140 (1911) ("Presumably every error is prejudicial to the party against whom it is committed, and the presumption cannot be overcome until it appears, beyond doubt, that the error ... could not have prejudiced the party's rights."); Fisher v. Denver Nat'l Bank, 22 Colo. 373, 377, 45 P. 440, 442 (1896) ("Whether the presumption be that prejudicial error resulted from the wrong ruling, or that the record must affirmatively show that such ruling resulted in prejudice to the defeated party...."); Lothrop v. Roberts, 16 Colo. 250, 252, 27 P. 698, 699 (1891) ("prejudice will generally be presumed" when the trial court did not allow counsel "fullest latitude" to cross-examine witness); Denver, S.P. & P.R. Co. v. Wilson, 12 Colo. 20, 26, 20 *393P. 340, 343 (1888) ("It is impossible to say that the admission of this [expert] testimony was error without prejudice; it may have been the very thing that induced the jury to find negligence on the part of defendant.").
On the other hand, as early as 1907, Colorado's legislature passed. a statute stating that a criminal conviction should not be reversed because of certain variances between the charging document and the proof at trial unless the defect "tend[ed] to prejudice the substantial rights of the defendant on the merits." Ch. 163, see. 1, 1907 Colo. Sess. Laws 358-54. This statute partially prefigured our present rule of criminal procedure concerning harmless error-Crim. P. 52(a) ("Any error, defect, irregularity, or variance which does not affect substantial rights shall be disregarded.")-that was adopted in 1961. See People v. Baenziger, 97 P.3d 271, 274 (Colo.App.2004) (Colorado Rules of Criminal Procedure were adopted in 1961).
IL Harmless Error Analysis: A Product of Reform
A. First Steps
The problems generated by the Exchequer Rule prompted a reform movement. In 1919, Congress adopted a "harmless error" statute that instructed federal appellate courts to disregard "technical errors, defects, or exceptions which do not affect the substantial rights of the parties." Act of Feb. 26, 1919, 40 Stat. 1181, 28 U.S.C. § 391. Many states quickly followed suit, adopting harmless error analysis by legislation or judicial action. Kotteakos, 328 U.S. at 759 n. 12, 66 S.Ct. 1239. The purpose of these reforms, which incorporated harmless error review into the national legal lexicon, was
to substitute judgment for automatic application of rules [and] to preserve review as a check upon arbitrary action and essential unfairness in trials, but at the same time to make the process perform that function without giving men fairly convicted the multiplicity of loopholes which any highly rigid and minutely detailed scheme of errors, especially in relation to procedure, will engender and reflect in a printed record.
Kotteakos, 328 U.S. at 760, 66 S.Ct. 1239.
B. The Evolution of Harmless Error Analysis
Even assuming that, when Minick and Kennedy were decided, Colorado's case law was not directly influenced by the Exchequer Rule, and that some form of harmless error analysis was embedded in Colorado's law of appellate review, the analysis of whether an error is harmless was far different then than it is now. As of 1885, or even 1911, the cases that presently inform our harmless error analysis did not exist and would not come into being for many years.
Kotteakos, which established the harmless error test for nonconstitutional errors, was decided in 1946. Chapman v. California, 386 U.S. 18, 24-25, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), which addressed the harmless error test for preserved constitutional errors, was issued twenty-one years later. The distinction between structural errors and trial errors, and their different treatment under harmless error analysis, was articulated twenty-four years after Chapman in Arizona v. Fuliminante, 499 U.S. 279, 306-07, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991). See also Neder v. United States, 527 U.S. 1, 7-8, 119 S.Ct. 1827, 144 L.Ed.2d 35 (1999) (structural errors require automatic reversal).
The tests that these cases establish are by now familiar. Nonconstitutional error requires reversal only if the error substantially and injuriously affects or influences the jury's verdict. Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239. Properly preserved constitutional error requires reversal unless the prosecution can establish, beyond a reasonable doubt, that the error did not contribute to the verdict. Chapman, 386 U.S. at 24, 87 S.Ct. 824. We know that most errors are trial errors, subject to harmless error review, but that a few errors are structural, which require automatic reversal. Neder, 527 U.S. at 7-8, 119 S.Ct. 1827; Fulminante, 499 U.S. at 306-07, 111 S.Ct. 1246.
*394III. The Remedy of Automatic Reversal and Harmless Error
A. The Error Is Not Structural Error
In my view, the remedy of automatic reversal treats the jury selection error at issue here as a form of structural error because there is no evaluation whether the error was harmless. However, I respectfully submit that it does not meet the definition of structural errors established in Fulminante. Such errors are
structural defects in the constitution of the trial mechanism, which defy analysis by "harmless-error" standards.... [They affect] the framework within which the trial proceeds, rather than simply [constitute] an error in the trial process itself. "Without these basic protections, a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair."
Id., 499 U.S. at 309-10, 111 S.Ct. 1246 (quoting Rose v. Clark, 478 U.S. 570, 577-78, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986)).
However, as Professor Pizzi and Judge Hoffman persuasively demonstrate, the error that prompts the remedy of automatic reversal in this context does not fit this definition. Jury Selection Errors on Appeal, 38 Am. Crim. L.Rev. at 1428-33. This is so because such errors do not affect the reliability of a trial truth-finding function and because the impact of such errors can be rationally determined. Several reasons support this conclusion.
First, peremptory challenges should be used to correct trial court errors in denying challenges for cause. The use of a peremptory challenge "to effect an instantancous cure of the [trial court's] error" in denying a challenge for cause "exemplifies 'a principal reason for peremptories: to help secure the constitutional guarantee of trial by an impartial jury." Skilling v. United States, 561 U.S. 358, 395 n. 31, 130 S.Ct. 2896, 2923 n. 31, 177 L.Ed.2d 619 (2010) (quoting United States v. Martinez-Salazar, 528 U.S. 304, 316, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000); see also Jury Selection Errors on Appeal, 38 Am.Crim. L.Rev. at 1406, 1428-37 (challenges for cause and peremptory challenges complement one another in protecting a defendant's right to an impartial jury).
Second, the error in cases like this one is not constitutional because peremptory challenges are "creature[s] of statute and are not required by the Constitution." Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988); see also Rivera v. Illinois, 556 U.S. 148, 156, 129 S.Ct. 1446, 1453, 173 L.Ed.2d 320 (2009) ("[There is no freestanding constitutional right to peremptory challenges. ... [A] State may decline to offer them at all."); Martinez-Salazar, 528 U.S. at 311, 120 S.Ct. 774 (peremptory challenges are "auxiliary" and "are not of federal constitutional dimension").
Third, the United States Supreme Court has made clear that no federal constitutional error occurs when a defendant uses a peremptory challenge to remove a juror who should have been removed for cause, as long as no other biased juror is a member of the jury. Martinez-Salazar, 528 U.S. at 314, 120 S.Ct. 774. And, as Professor Pizzi and Judge Hoffman recognize, "[hlow can it be said that the reliability of a trial is likely to 'be compromised when a defendant loses a single peremptory challenge, but when all the jurors who actually hear the case are fair and impartial?" Jury Selection Errors on Appeal, 38 Am.Crim. L.Rev. at 1433. The mere fact that the jury would have been differently constituted is not alone a reason to assume that this second jury would have been, or could have been, more fair. See id.
In contrast, harmless error analysis would ask the question whether the defendant has demonstrated that he or she was prejudiced by the error. This would require the defendant to show that a member of the jury that deliberated in his or her case was biased. See, e.g., Martinez-Salazar, 528 U.S. at 311, 120 S.Ct. 774; State v. Menzies, 889 P.2d 393, 398 (Utah 1994).
B. Colorado's Recent Experience
Ross, decided in 1988, and Martines-So-lazar, decided in 2000, held that the remedy of automatic reversal was not constitutionally required. After Ross was decided, our *395supreme court declined to apply it in Ma-crander. The court, reaffirming the remedy established in Kennedy, stated that the prosecution's reliance on Ross was misplaced for two reasons. Initially, the court stated that the issue in Macrander was not whether, as in Ross, the jury was impartial in a "constitutional sense," but whether the trial court's erroneous denial of a challenge for cause affected one of the defendant's substantial rights. Macrander, 828 P.2d at 244 n. 12. Then, the court observed that the Oklahoma practice analyzed in Ross required defendants to demonstrate that a biased juror was a member of the jury in their cases in order to gain appellate relief. Colorado does not require this step. Id.
After Martines-Salazar was decided, our supreme court again reaffirmed the Kennedy remedy in People v. Lefebre, 5 P.3d 295, 307-08 (Colo.2000). The court held that the holdings in Ross and Martines-Salazar were "narrow" and had "little application" to the case before it. Lefebre, 5 P.3d at 307. As part of its analysis, the court (1) referred to the long history of the Kennedy remedy in Colorado; (2) stated that defendants who have suffered the type of error we address here suffer a Fourteenth Amendment due process violation; (3) noted that Colorado is free to adopt its own remedies in this area; and (4) listed four states-Arizona, Kentucky, Washington, and Wisconsin-that also apply the remedy of automatic reversal in these cireumstances.
C. Reasons Why the Remedy of Automatic Reversal Should Be Replaced by Harmless Error Analysis
Certainly, states are free to choose their remedies in this area. See Rivera, 556 U.S. at 161-62, 129 S.Ct. at 1456 ("Absent a federal constitutional violation, States retain the prerogative to decide whether such errors deprive a tribunal of its lawful authority and thus require automatic reversal."). However, the thoughtful work of Professor Pizzi and Judge Hoffman provides compelling reasons why our supreme court should reconsider the Kennedy remedy in light of the harmless error analysis discussed in Ross, Martinez-Salazar, Rivera, and Skilling.
Further, the remedy of automatic reversal is quickly losing adherents in other states in light of these United States Supreme Court decisions. Of the four states mentioned in Lefebre, three have now abandoned the remedy of automatic reversal, even though it had long been entrenched in those jurisdictions. See State v. Hickman, 205 Ariz. 192, 194-201, 68 P.3d 418, 420-27 (2008); State v. Fire, 145 Wash.2d 152, 157-165, 34 P.3d 1218, 1221-25 (2001); State v. Lindell, 245 Wis.2d 689, 717-50, 629 N.W.2d 223, 236-52 (2001).
Of those three states, each had previously held, similar to our supreme court's holding, that automatic reversal was the proper remedy because
[reversal is the only feasible way to vindicate a party's 'substantial right' to peremptory challenges, which right is clearly impinged when a trial judge erroneously denies a challenge for cause.
State v. Huerta, 175 Ariz. 262, 266, 855 P.2d 776, 780 (1993), overruled by Hickman, 205 Ariz. at 201, 68 P.3d at 427; see also Fire, 145 Wash.2d at 160, 34 P.3d at 1222-23 (overruling Washington's automatic reversal remedy, which was based on the rationale that "[elven though ... no biased juror was seated, the prejudice occurs in the deprivation of one peremptory challenge to which a defendant is entitled"); Lindell, 245 Wis.2d at 718, 629 N.W.2d at 236 (overruling Wisconsin's automatic reversal remedy, which was based on the rationale that using a peremptory challenge to correct the trial court's error in denying a challenge for cause justified reversal because it arbitrarily deprived the defendant of a statutory right).
The fourth state, Kentucky, has vacillated. It decided to follow the United States Supreme Court precedent in this area, but then it returned to the remedy of automatic reversal. Compare Morgan v. Commonwealth, 189 S.W.3d 99, 103-07 (Ky.2006) (rejecting automatic reversal remedy), with Shane v. Commonwealth, 243 S.W.3d 336, 338-42 (Ky.2007) (reinstating automatic reversal remedy).
Presently, at least twenty-nine states and the United States do not employ the remedy of automatic reversal, but, instead, require a *396defendant to show prejudice-namely, that a biased juror actually sat on the jury-in order to gain appellate relief. See Martinez-Salazar, 528 U.S. at 311, 120 S.Ct. 774; People v. Rivera, 227 Ill.2d 1, 15-22, 316 Ill.Dec. 488, 879 N.E.2d 876, 884-88 (2007); Kopsho v. State, 959 So.2d 168, 175 n. 3 (Fla.2007) (Bell, J., concurring) (listing cases).
Moreover, the United States Supreme Court held in 2009 that, when all the jurors who deliberate in a case have been passed for cause and are unbiased, the Fourteenth Amendment's Due Process Clause does not require automatic reversal of a defendant's conviction even though a trial court erroneously denies a challenge for cause. Rivera, 556 U.S. at 156-61, 129 S.Ct. at 1453-55. In reaching this result, the Court observed that the trial court's error of state law was not "constitutionally significant" because "errors of state law do not automatically become violations of due process." Id.
Last, the Supreme Court recognized that language from Swain v. Alabama, 380 U.S. 202, 219, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965), has been cited as a basis for the remedy of automatic reversal. There, the Court stated that the "denial or impairment of the right [to exercise peremptory challenges] is reversible error without a showing of prejudice." Id. However, in Martinez-Salazar, the Court made emphatically clear that this language "was not only unnecessary to the decision" in Swain, but "was founded on a series of our early cases decided long before the adoption of harmless-error review." Martinez-Salazar, 528 U.S. at 317 n. 4, 120 S.Ct. 774. The Court has, therefore, disavowed this language from Swain. Rivera, 556 U.S. at 159-62, 129 S.Ct. at 1455-56.
IV. Conclusion
As our supreme court recognized in Creacy v. Industrial Commission, 148 Colo. 429, 433, 366 P.2d 384, 386 (1961), the important concept of stare decisis is not an absolute bar to change: .
The rule of stare decisis is not a doctrine of mortmain; it does not exelude room for growth in the law and the courts are not without power to depart from a prior ruling, or to overrule it, where sound reasons exist and where the general interests will suffer less by such departure than from a strict adherence.
I1 understand that, if our supreme court were to discard the remedy of automatic reversal, it would likewise discard years of precedent. However, by doing so, the court would rely on "sound reasons" and promote the "general interest." See Hickman, 205 Ariz. at 201, 68 P.3d at 427 (concluding that there were "sufficiently compelling" reasons to dispense with stare decisis and overrule prior case law requiring the remedy of automatic reversal). This is so because the supreme court would align Colorado's jurisprudence in this area with the harmless error jurisprudence that it consistently employs, and has consistently employed for years, when resolving criminal procedure issues. See, e.g., Luu v. People, 841 P.2d 271, 273-75 (Colo.1992) (applying Fulminante); People v. Incerto, 180 Colo. 366, 374-75, 505 P.2d 1309, 1313 (1973) (applying Kotteakos ); Larkin v. People, 177 Colo. 156, 161, 493 P.2d 1, 3 (1972) (applying Chapman ).