Dissenting opinion by
Justice COOPER.Without benefit of intelligible briefing1 or even oral argument, a majority of this Court has seized upon this case to alter the manner in which jury trials, both criminal and civil, will hereafter be practiced in Kentucky (at least until the membership of this Court changes once again). In doing so, the majority seems to suggest that the per se reversible error rule, heretofore applied when a litigant is denied the peremptory challenges to which he/she/it is lawfully entitled, was created out of whole cloth in Thomas v. Commonwealth, 864 S.W.2d 252 (Ky.1993) (a case unmentioned in the Commonwealth’s brief). On the contrary, as will be pointed out, infra, denial of the peremptory strikes authorized by law has been regarded as prejudicial to a litigant’s substantial rights in Kentucky for more than 170 years. Pryor v. Commonwealth, 32 Ky. (2 Dana) 298 (1834) (criminal case); Clarke v. Goode, 29 Ky. (6 J.J. Marsh.) 637, 637-38 (1831) (civil case). The majority opinion seems to equate a “substantial right” with a “constitutional right”; however, neither Thomas nor any other Kentucky case has ever suggested that the requirement that “[t]he ancient mode of trial by jury shall be held sacred ... and the right thereof remain inviolate,” Ky. Const. § 7, refers to jury challenges.
The common-law right of trial by jury is preserved in the Constitution, but that instrument does not attempt to regulate the manner in which jurors shall be selected or the qualifications they must possess ....
Wendling v. Commonwealth, 143 Ky. 587, 137 S.W. 205, 207 (1911). See also Haight v. Commonwealth, 41 S.W.3d 436, 444 (Ky.2001) (“There is no constitutional right to peremptory challenges.”). However, because “they are ... [a] means to the constitutional end of an impartial jury and a fair trial,” Georgia v. McCollum, 505 U.S. 42, 57, 112 S.Ct. 2348, 2358, 120 L.Ed.2d 33 (1992), we and our predecessor court have always deemed the right to peremptory challenges to be a substantial right, i.e., one to which a party is clearly entitled and the erroneous denial of which cannot be deemed harmless for purposes of our harmless error and palpable error rules. RCr 9.24 & 10.26; CR 61.01 & 61.02.
[Ejvery error is deemed prejudicial to the substantial rights of a party which denies him relief to which he is clearly entitled, — clear not only in view of the basis on which the right depends, but as to the mode by which the result is to be reached.
Clark v. Mason, 264 Ky. 683, 95 S.W.2d 292, 298 (1934); Wathen v. Byrne, 12 S.W. 197, 198 (Ky.1889).
*124Despite the majority opinion’s apparent belief that Thomas is the source of all reversals for jury selection errors, I have found only, one opinion of this Court, Justice Wintersheimer’s majority opinion in Fugate v. Commonwealth, 993 S.W.2d 931, 938 (Ky.1999), that relied on Thomas in reversing a case under facts such as these. Two other cases, one criminal and one civil, cited Thomas ⅛ characterization of the right of peremptory challenge as a “substantial right” in reversing a trial court because of the improper allocation of peremptory strikes — the “older brother” of what occurred here. Springer v. Commonwealth, 998 S.W.2d 439, 444-45 (Ky.1999); Bowling Green Mun. Utils. v. Atmos Energy Corp., 989 S.W.2d 577, 579-80 (Ky.1999).
Furthermore, as discussed infra, United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), upon which the majority opinion primarily relies, not only reflects a misconception of the realities of the practice of law in “real world” courtrooms, it thankfully applies only to federal cases and is not binding precedent on state courts such as ours.
Because peremptory challenges are a creature of statute and aré not required by the Constitution, it is for the State to determine the number of peremptory challenges allowed and to define their purpose and the manner of their exercise. As such, the “right” to peremptory challenges is “denied or impaired” only if the defendant does not receive that which state laiu provides.
Ross v. Oklahoma, 487 U.S. 81, 89, 108 S.Ct. 2273, 2279, 101 L.Ed.2d 80 (1988) (emphasis added) (citations omitted). While the early tendency among state courts was to embrace Martinez-Salazar, the majority of the recent cases, as discussed infra, have trended against it (by a three-to-one margin since 2002).
Under the law of this Commonwealth at the time of Appellant’s trial and at the time of this writing, the prosecution and a criminal defendant are entitled to eight peremptory challenges each. RCr 9.40(1). By refusing to excuse Juror 19 for cause, thereby forcing Appellant to excuse him by peremptory, the trial court reduced Appellant’s peremptory challenges to seven while leaving the prosecution with its full complement of eight,2 thus indirectly mis-allocating the peremptory challenges provided by law. Despite agreeing that Juror 19 was clearly biased, and that the trial court’s refusal to excuse him for cause was error, the majority opinion relies on Martinez-Salazar in holding that Appellant’s choice to remove the juror by peremptory challenge rather than be tried by a biased juror rendered the trial court’s error harmless.3 The majority and Martinez-Salazar hold that, in order to preserve such an error for review, a litigant must leave the biased juror on the jury, then assert on appeal that the resulting conviction must be reversed because he (the litigant) was denied his right to a fair and impartial jury. See Martinez-Salazar, 528 U.S. at 315-16, 120 S.Ct. at 781-82. Of course, no responsible lawyer or litigant in his or her right mind would pursue that route except in rare circumstances.4 *125Even if, as here, the juror’s admitted bias was so obvious as to make reversal a virtual certainty, the litigant will still opt at least to attempt to prevail at the first trial so as to avoid the expense of an appeal and second trial, or, worse, intervening jail time during the inherent delay on appeal. Referring to this proposition as a “strained analysis,” William T. Pizzi & Morris B. Hoffman, Jury Selection Errors on Appeal, 38 Am.Crim. L.Rev. 1391, 1401 (2001), and a “strange invitation,” id. at 1405, 1434, Professor Pizzi and Judge Hoffman5 conclude: “We cannot imagine a circumstance in which a competent defense lawyer could ethically, or would practically, decide to infect his client’s jury with a demonstrably biased juror who could have been removed with an available peremptory challenge.” Id. at 1404.6 If, as asserted by Martinez-Salazar, 528 U.S. at 315, 120 S.Ct. at 781, its “strange invitation” is not a “no choice,” it is certainly a Hobson’s choice.7
A full understanding of the significance of today’s decision requires some historical perspective.
I. PEREMPTORY CHALLENGES IN ENGLISH COURTS.
The notion of a jury as the arbiter of disputes is of ancient origin, probably originating with the Athenian “dikasteria.” See generally Lloyd E. Moore, The Jury: Tool of Kings, Palladium of Liberty 2, 4-8 (2d ed. Anderson 1988). The concept of peremptory challenges is generally traced to Roman senatorial trials that originated in the pre-Christian era. Each year, the Senate chose eighty-one of its members to serve as prospective jurors. Each litigant could challenge fifteen, leaving a jury of fifty-one. Id. at 3.
The concept of trial by jury probably did not exist in England prior to the Norman Conquest of 1066 and is generally thought to have its Norman/English origins in Charlemagne’s “inquisitio.” Id. at 13-19 (citing Heinrich Brunner, The Origin of Juries (Berlin 1872)). Prior to the Conquest, the three basic trial methods in England were trial by compurgation,8 trial by combat,9 and, most often in felony cases, trial by ordeal.10
*126In 1166, exactly 100 years after the Conquest, Henry II proclaimed the Assize of Clarendon, banning trials by compurgation and establishing a uniform system of juries to resolve civil and minor criminal disputes; felonies continued to be tried primarily by ordeal. Moore, supra, at 35-39; John A. Proffatt, A Treatise on Trial By Jury, Including Questions of Law and Fact §§ 25-26, at 37-39 (Riverside 1880). Chapter XXXIX of the Magna Carta,11 signed in 1215, has been attributed as the source of the right to a trial by a jury of twelve peers. Thompson v. Utah, 170 U.S. 343, 349, 18 S.Ct. 620, 622, 42 L.Ed. 1061 (1898), overruled on other grounds by Collins v. Youngblood, 497 U.S. 37, 51-52, 110 S.Ct. 2715, 2724, 111 L.Ed.2d 30 (1990); 4 Blackstone, supra note 8, at 342-43. However, that theory has largely been rejected by modern scholars. See, e.g., J.C. Holt, Magna Carta 327 (1965); Felix Frankfurter & Thomas G. Corcoran, Petty Federal Offenses and the Constitutional Guaranty of Trial by Jury, 39 Harv.L.Rev. 917, 922 & n. 14 (1926) (debunking the attribution in Thompson as “one of the most revered of legal fables”). Pope Innocent Ill’s ban on trials by ordeal, proclaimed at the Fourth Lateran Council (also in 1215), is regarded as more decisive to the increased employment of jury trials, Theodore F.T. Plucknett, A Concise History of the Common Law 118-19 (5th ed.1956), because the abolition of the ordeal left trial by jury as the only logical alternative to deciding serious criminal cases. Morris B. Hoffman, Peremptory Challenges Should Be Abolished: A Trial Judge’s Perspective, 64 U. Chi. L.Rev. 809, 818-19 (1997). By 1220, trial by jury had become the primary method for determining a defendant’s guilt in serious criminal cases. Thomas A. Green, Verdict According to Conscience 3 (1985). The jurors, both grand and petit, were most often knights selected by the King’s judiciary. Moore, supra, at 50, 53-54.
As jury trials flourished in the thirteenth century, the concept of the peremptory challenge — at least for the prosecution — began to take root, particularly in capital cases.12 Either party could challenge a juror for cause because of a relationship to a litigant by blood, marriage, or economic interest. Jon M. Van Dyke, Jury Selection Procedures: Our Uncertain Commitment to Representative Panels 141 (1977). In addition, the Crown could effectively exercise an unlimited *127number of challenges without explanation simply on the basis of royal infallibility, i.e., the challenges were irrebuttably presumed to be for a proper purpose. Id. at 148. Thus, Judge Hoffman posits that this early English peremptory challenge was more of a hybrid between a peremptory and a challenge for cause. Hoffman, Peremptory Challenges Should Be Abolished, supra, at 820-21. In response, some courts began to permit criminal defendants in capital cases to exercise peremptory challenges. By the end of the thirteenth century, it was well settled in the common law that the Crown could exercise an unlimited number of peremptory challenges and the accused could exercise thirty-five. Proffatt, supra, § 155, at 207-08.
In 1305, Parliament enacted the Ordinance for Inquests, 33 Edw. 1, Stat. 4, in an attempt to restrict the Crown’s power not only to handpick all prospective jurors but also to exercise unlimited peremptory challenges. The Ordinance abolished the Crown’s peremptory challenges while establishing by law the accused’s right to peremptorily challenge thirty-five jurors. 4 Blackstone, supra note 8, at 346-48. The King’s courts, however, largely avoided the elimination of the prosecution’s peremptory challenges by recognizing a new common law procedure known as “standing aside.” By this device, the prosecutor could direct any number of prospective jurors to “stand aside” until each side had exercised all challenges for cause and the accused had exercised all of his or her peremptory challenges. Only if the number of jurors then remaining were insufficient could the jurors “standing aside” be recalled, subject, of course, to challenges for cause. Proffatt, supra, §§ 159-160, at 211-13.
After 1305, the number of peremptory challenges allotted to defendants in English criminal trials was gradually reduced from thirty-five to twenty13 (22 Hen. 8, ch. 14, § 6 (1530); 6 Geo. 4, ch. 50, § 29 (1825)); then to seven (11 & 12 Geo. 6, ch. 58, § 35 (1948)); then to three (The Criminal Law Act, 1977, ch. 45, § 43); until they were finally abolished, along with the “standing aside” procedure, effective January 5, 1989 (The Criminal Justice Act, 1988, ch. 33, § 118(1)).14
II. PEREMPTORY CHALLENGES IN UNITED STATES FEDERAL COURTS.
The colonial courts accepted the English standards of thirty-five peremptory challenges for those accused of treason, twenty for those accused of other felonies, and the “standing aside” practice for prosecutors. Van Dyke, supra, at 148. The first draft of the Sixth Amendment to the United States Constitution included, as a corollary *128of the right to an impartial jury, “the right of challenge and other accustomed requisites.” S. Mac Gutman, The Attorney-Conducted Voir Dire of Jurors: A Constitutional Right, 39 Brook. L.Rev. 290, 297 (1973) (quoting Journal of the House of Representatives, compiled by The First Congress Project); Gazette of the U.S. 58 (Aug. 29, 1789). This language was ultimately deleted, probably at the urging of James Madison, who believed the Amendment’s guarantee of an “impartial jury” was sufficient to include the right to question and challenge jurors.
“Where a technical word was used [trial by jury], all the incidents belonging to it necessarily attended it. The right to challenge is incident to the trial by jury, and, as one is secured, so is the other.”
Gutman, supra, at 297 (quoting Madison’s remarks regarding the right to trial by jury in criminal cases as guaranteed by Article III, Section 2, during the Virginia ratification debates as reported in Jonathan Elliot, The Debates in the Several State Conventions on the Adoption of the Federal Constitution 531 (2d ed. 1836) (Virginia ratification debate, June 20, 1788)). Patrick Henry disagreed:
“I would rather the trial by jury were struck out all together. There is no right of challenging partial jurors. There is no common law of America, nor constitution, there can be no right to challenge partial jurors. Yet the right is as valuable as the right to trial by jury itself.”
Id. (quoting Henry’s remarks as reported in Elliot, supra, at 541-42). With respect to challenges for cause, Madison’s predictions proved true; with respect to peremptory challenges, Henry’s predictions ultimately prevailed (at least in the constitutional context).
In 1790, Congress enacted An Act for Punishment of Certain Crimes Against the United States, ch. 9, § 30, 1 Stat. 119 (1790), which explicitly afforded the defendant thirty-five peremptory challenges if charged with treason and twenty if charged with any other capital offense. No provision was made either for peremptory strikes by the prosecution or for the common law practice of “standing aside.” However, in dictum in United States v. Marchant, 25 U.S. (12 Wheat) 480, 6 L.Ed. 700 (1827), Justice Story indicated that the “standing aside” procedure was a common law right that our federal courts had inherited from the common law of England.
But a still more direct conclusion against the right may be drawn from the admitted right of the crown to challenge in criminal cases, and the practice under that right. We do not say that the same right belongs to any of the States in the Union; for there may be a diversity in this respect as to the local jurisprudence or practice. The inquiry here is, not as to what is the State prerogative, but, simply, what is the common law doctrine as to the point under consideration. Until the statute of 33 Edw. 1, the crown might challenge peremptorily any juror, without assigning any cause; but that statute took away that right and narrowed the challenges of the crown to those for cause shown. But the practice since this statute has uniformly been, and it is now clearly settled, not to compel the crown to show cause at the time of objection taken, but to put aside the juror until the whole panel is gone through.
Id. at 483, 6 L.Ed. 700 (emphasis added to highlight that jury selection procedures in state courts have always been a state prerogative).
In United States v. Shackleford, 59 U.S. (18 How.) 588, 15 L.Ed. 495 (1855), however, the Court held that the Act of 1790, giving the right of peremptory challenge to *129the accused, did not “draw along with it” the government’s prerogative to exercise the common law right of “standing aside.” Id. at 590, 15 L.Ed. 495. Thus, after Shackleford, federal prosecutors in the United States were in the same predicament as the Crown’s prosecutors in England had been after enactment of the Ordinance for Inquests: the accused possessed the right of peremptory challenge; the prosecution did not. The effect of Shack-leford was not as short-lived as the Ordinance for Inquests had been, perhaps because Congress was more concerned with the preliminaries to and prosecution of the American Civil War than with peremptory challenges. But under the majority opinion’s theory that the denial of peremptory challenges is harmless, why would federal prosecutors need them at all?15
In 1865, in an apparent if belated response to Shackleford, Congress established that in all non-capital felony trials in federal courts the defendant would have ten peremptory challenges and the prosecution would have two, and that in capital cases the defendant would have twenty peremptory challenges and the prosecution would have five. Law of March 3, 1865, ch. 86, § 2, 13 Stat. 500. In 1872, Congress increased the number of prosecutorial peremptory challenges in non-capital cases to three and, for the first time, extended the right of peremptory challenge to civil cases and misdemeanors tried in federal courts (giving each side three). Law of June 8, 1872, ch. 333, § 2, 17 Stat. 282. In 1911, Congress again changed the peremptory challenge numbers: twenty for the defendant and six for the prosecution in capital cases; ten for the defendant and six for the prosecution in non-capital felony cases; and three each in civil and misdemeanor cases. Law of March 3, 1911, ch. 231, § 287, 36 Stat. 1166. Finally, when the Federal Rules of Criminal Procedure were adopted in 1946, Rule 24(b) increased the prosecution’s peremp-tories in capital cases to equal the defendant’s, ie., twenty. Note that each successive change decreased the peremptory challenges of the accused vis-a-vis those of the prosecution and/or increased the peremptory challenges of the prosecution visa-vis those of the accused. As will be noted infra, that pattern has been duplicated in Kentucky. In federal civil trials, each party continues to have the right to three peremptory challenges. 28 U.S.C. § 1870.
Prior to 1986, peremptory challenges in the federal courts were regarded as both unconditional and inviolate. “Experience has shown that one of the most effective means to free the jurybox from men unfit to be there is the exercise of the peremptory challenge.” Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887). “The right of challenge ... has always been held essential to the fairness of trial by jury.” Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892), abrogated on other grounds by Snyder v. Massachusetts, 291 U.S. 97, 118 n. 2, 54 S.Ct. 330, 337 n. 2, 78 L.Ed. 674 (1934). “The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused.” Pointer v. United States, 151 U.S. 396, 408, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1894). Though not constitutional in origin, Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, *13063 L.Ed. 1154 (1919), the peremptory challenge is “in the nature of a statutory privilege.” Frazier v. United States, 335 U.S. 497, 505 n. 11, 69 S.Ct. 201, 205 n. 11, 93 L.Ed. 187 (1948). It is a “necessary part of trial by jury ... [because it] allows counsel to ascertain the possibility of bias through probing questions on the voir dire and facilitates the exercise of challenges for cause by removing the fear of incurring a juror’s hostility through examination and challenge for cause.” Swain v. Alabama, 380 U.S. 202, 219-20, 85 S.Ct. 824, 835, 13 L.Ed.2d 759 (1965), overruled by Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Blackstone offered two rationales for the peremptory challenge:
1. As every one must be sensible, what sudden impressions and unaccountable prejudices we are apt to conceive upon the bare looks and gestures of another; and how necessary it is that a prisoner (when put to defend his life) should have a good opinion of his jury, the want of which might totally disconcert him; the law wills not that he should be tried by any one man against whom he has conceived a prejudice, even without being able to assign a reason for such his dislike.
2. Because, upon challenges for cause shown, if the reason assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke a resentment; to prevent all ill consequence from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
4 Blackstone, supra note 8, at 347. A party “may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being accepted.” Hayes, 120 U.S. at 70, 7 S.Ct. at 351.
The essential nature of the peremptory challenge is that it is one exercised ... without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits rejection for a real or imagined partiality that is less easily designated or demonstrable.
Swain, 380 U.S. at 220, 85 S.Ct. at 836 (emphasis added) (citations omitted).
Peremptory challenges are often premised upon “experienced hunches and educated guesses.” J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 148, 114 S.Ct. 1419, 1431, 128 L.Ed.2d 89 (1994) (O’Connor, J., concurring). “[M]any jurors during voir dire may not give a party an articulable reason to challenge them for cause, though the party instinctively senses hostility from the prospective juror.” Robert T. Prior, The Peremptory Challenge: A Lost Cause?, 44 Mercer L.Rev. 579, 582 (1993). “That a trial lawyer’s instinctive assessment of a juror’s predisposition cannot meet the high standards of a challenge for cause does not mean that the lawyer’s instinct is erroneous.” J.E.B., 511 U.S. at 148, 114 S.Ct. at 1431 (O’Connor, J., concurring). One commentator describes a peremptory challenge as “one based on evidence that persuades the attorney, but is insufficient to persuade the judge” that a potential juror is biased against the litigant or his or her position.16 Anthony Page, Batson’s Blind Spot: Unconscious *131Stereotyping and the Peremptory Challenge, 85 B.U. L.Rev. 155, 158 (2005).
Prior to Ross v. Oklahoma and United States v. Martinez-Salazar, the only restriction on a party’s use of a peremptory challenge was that it could not be employed for purposeful discrimination against a class of jurors on the basis of race, gender, or ethnic origin. In 1986, the United States Supreme Court held in Batson v. Kentucky that the peremptory challenge was not entirely peremptory but was subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.17 Batson, 476 U.S. at 89, 106 S.Ct. at 1719. Specifically, the Court held that a prosecutor could not use peremptory challenges to excuse jurors “solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State’s cse against a black defendant.” Id.18 The Court later extended that holding to purposeful discrimination on the basis of ethnic origin, Hernandez v. New York, 500 U.S. 352, 111 S.Ct. 1859, 114 L.Ed.2d 395 (1991) (as stated in Martinez-Salazar, 528 U.S. at 315, 120 S.Ct. at 781), and gender, J.E.B., 511 U.S. at 130-31, 114 S.Ct. at 1422. The Batson prohibition against the discriminatory use of peremptory challenges has been extended to civil cases, Edmonson v. Leesville Concrete Co., 500 U.S. 614, 630, 111 S.Ct. 2077, 2088, 114 L.Ed.2d 660 (1991), and to peremptory challenges exercised by criminal defendants, Georgia v. McCollum, 505 U.S. 42, 59, 112 S.Ct. 2348, 2359, 120 L.Ed.2d 33 (1992). Because Batson was premised not only on purposeful discrimination against the opposing party but also on purposeful discrimination against the excluded jurors, 476 U.S. at 87-88, 106 S.Ct. at 1718, a party can raise a Batson objection even if that party is not of the same race, gender, or ethnic origin as the excluded jurors. Powers v. Ohio, 499 U.S. 400, 416, 111 S.Ct. 1364, 1373-74, 113 L.Ed.2d 411 (1991).
However, the Batson line of cases does not purport to deprive a party of a per*132emptory challenge or to require that a challenge be exercised to correct judicial error; those cases only preclude a party from utilizing a peremptory challenge for a discriminatory purpose. “Absent intentional discrimination violative of the Equal Protection Clause, parties should be free to exercise their peremptory strikes for any reason, or no reason at all.” Hernandez, 500 U.S. at 374, 111 S.Ct. at 1874 (O’Connor, J., concurring).
The only United States Supreme Court case purporting to require a party to use a peremptory challenge to correct judicial error is Ross v. Oklahoma, 487 U.S. 81, 108 S.Ct. 2273, 101 L.Ed.2d 80 (1988), and it was applying Oklahoma law to a case tried in an Oklahoma court.
It is a long settled principle of Oklahoma law that a defendant who disagrees with the trial court’s ruling on a for-cause challenge must, in order to preserve the claim that the ruling deprived him of a fair trial, exercise a peremptory challenge to remove the juror. Even then, the error is grounds for reversal only if the defendant exhausts all peremptory challenges and an incompetent juror is forced upon him....
Thus, although Oklahoma provides a capital defendant with nine peremptory challenges, this grant is qualified by the requirement that the defendant must use those challenges to cure erroneous refusals by the trial court to excuse jurors for cause....
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As required by Oklahoma law, petitioner exercised one of his peremptory challenges to rectify the trial court’s error, and consequently he retained only eight peremptory challenges to use in his unfettered discretion. But he received all that Oklahoma law allowed him, and therefore his due process challenge fails.
Id. at 89-91, 108 S.Ct. at 2279-80. The Court specifically left open “the broader question whether, in the absence of Oklahoma’s limitation on the ‘right’ to exercise peremptory challenges, ‘a denial or impairment’ of the exercise of peremptory challenges occurs if the defendant uses one or more challenges to remove jurors who should have been excused for cause.” Id. at 91 n. 4, 108 S.Ct. at 2280 n. 4. That question was addressed with respect to federal law in United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), which held that to preserve such an error for appeal, the defendant must leave the juror on the jury, suffer a conviction at the hands of the resultant biased jury, and pursue a Sixth Amendment argument on appeal. Id. at 315, 120 S.Ct. at 781. Martinez-Salazar also purported to reject for federal courts the Oklahoma requirement that a criminal defendant must use his or her peremptory challenges to cure the trial court’s error, id. at 314-15, 120 S.Ct. at 781, though the practical result of its holding is the same.
III. PEREMPTORY CHALLENGES IN KENTUCKY COURTS.
In concluding that the ineffective allocation of peremptory challenges to any party, civil or criminal, may be “harmless error,” the majority acts without due consideration for the significance with which Kentucky law and jurisprudence have regarded this right since the late 1700s.
Initially, criminal defendants had a statutory right to twenty-four peremptory challenges if charged with treason and twenty if charged with “murder or felony.” Act of December 17, 1796, 1 William Littell, Statute Law of Kentucky (“Littell’s Laws”), ch. 262, § 19, pp. 469-70 (1809). This right was broadened by statute to twenty peremptory challenges in “all criminal cases whatsoever,” except in courts *133where “penal” offenses — those subject only to pecuniary penalty — were prosecuted.19 Act of December 22,1798,1 Littell’s Laws, ch. 169, p. 236 (1810) (“except in courts of quarterly sessions”). During this time the prosecution was not entitled to any peremptory challenges. Act of December 17, 1796,1 Littell’s Laws, ch. 262, § 18, p. 469; Commonwealth v. Bailey, 30 Ky. (7 J.J. Marsh.) 246 (1832). However, this omission was substantially counterbalanced by the fact that, whereas a writ of error or an appeal could be taken to the Court of Appeals20 from a civil or “penal” case, a writ of error or an appeal could not be taken from any other criminal case. Act of December 19, 1796, 1 Littell’s Laws, ch. 277, § 13, p. 563 (no certiorari, appeal, supersedeas, or writ of error allowed from district court21 judgments in criminal cases). The logic behind denying the right of appeal in serious criminal cases was simple: swift justice.22
At first blush, the distinction between allowing appeals in “penal cases” but not in other criminal cases may have been because the accused in other criminal cases was allowed twenty peremptory challenges — and was expected to use them to correct judicial error. The following language in Montee v. Commonwealth, 26 Ky. (3 J.J. Marsh.) 132 (1830), appears to support this position.
It would seem, therefore, that the most safe and consistent conclusion, is, that the right of peremptorily challenging twenty, does not exist in “penal cases,” but is allowed, in all other criminal cases, and that the right to prosecute a writ of error, is given in a penal, but in no other criminal case.
Id. at 144-45.
However, while there had been no statutory right to peremptory challenges in trials of “penal” offenses (those tried in the courts of quarterly sessions), Montee also held that “[a]n equitable and reasonable construction, will extend the same right of peremptory challenge, to ‘penal cases,’ as that which is allowed in [civil] cases,” i.e., the right to three peremptory challenges. Id. at 149. Thus the reason for a party’s right to its allotted peremptory challenges could not have been because there was no right to appeal. In “penal” cases, the accused had both the right to peremptory challenges (albeit only three) and the right to appeal. Furthermore, in Pryor v. Commonwealth, 32 Ky. (2 Dana) 298 (1834), the *134court held that it was reversible error to deny the defendant three peremptory challenges in a “penal” case even though the defendant could prosecute a writ of error in such a case. Id. at 299. Sixteen years later, after the intervening enactment of a statute authorizing prosecution of a writ of error in any criminal case punishable by fine or by fine and imprisonment, Act of 1841, 3 Stat. Law 37, the court held that it was reversible error to deny a defendant twenty peremptory challenges in the trial of any criminal charge that could result in imprisonment. Hayden v. Commonwealth, 49 Ky. (10 B. Mon.) 125, 126 (1850).
With respect to civil litigation, an Act of December 27, 1806, 3 Littell’s Laws, ch. 397, § 1, p. 402 (1811), provided that “each party litigant shall have the right of peremptory challenge to one fourth of the jury summoned.” In Sodousky v. McGee, 27 Ky. (4 J.J. Marsh.) 267 (1830), a civil action for assault and battery, our predecessor court interpreted “parties litigant” to mean antagonistic sides of the controversy; thus, it was not error to deny separate peremptory challenges to nine non-antagonistic defendants. In Clarke v. Goode, 29 Ky. (6 J.J. Marsh.) 637 (1831), however, the Court held that it was reversible error to deny a civil litigant the right to exercise all three peremptory challenges allotted to him. “It is not only important that justice should be impartially administered, but where it can be effected without the violation of any rule of propriety, that it should flow through channels as clear from suspicion as possible.” Id.
Thus, in our earliest jurisprudence, it was well established that a criminal defendant’s or a civil litigant’s right to the peremptory challenges allowed by law was inviolate.
In 1854, the General Assembly officially adopted the first Criminal Code of Practice. M.C. Johnson et al., Code of Practice in Criminal Cases (eff. July 1, 1854).23 Section 203 of the Code allotted to the defendant twenty peremptory challenges in a felony prosecution and three in a misdemeanor prosecution; section 204 allotted to the Commonwealth five peremptory challenges in a felony prosecution and three in a misdemeanor prosecution. Section 327 gave the Court of Appeals appellate jurisdiction over felony convictions, “subject to the restrictions contained in this article.” In that respect, Section 334 provided that a judgment of conviction of a felony could only be reversed on the following grounds:
1st An error of the court in admitting or rejecting important evidence.
2d An error in instructing or refusing to instruct the jury.
3d An error in failing to arrest the judgment.
4th An error in allowing or disallowing a peremptory challenge.
(Emphasis added.) Section 349(1) specifically provided that an error in allowing or overruling a challenge for cause was not grounds for reversal. Section 276, which later became section 281, 1876 Ky. Acts (eff. January 1, 1877), Joshua F. Bullitt & John Feland, Code of Practice in Kentucky Criminal Cases 3, 52 (1876), provided that “[t]he decision of the court on challenges to the panel, and for cause, shall not be subject to exception.” (Emphasis added.)
*135In Moore v. Commonwealth, 70 Ky. (7 Bush) 191 (1870), our predecessor court held that section 334 of the Criminal Code precluded it from reviewing a trial court’s allegedly erroneous failure to strike a juror for cause (oddly failing to also cite section 349(1)), rejecting an argument that the effect of the error was to disallow the appellant a peremptory challenge so as to authorize an appeal under section 334(4). Shortly thereafter, the General Assembly repealed section 349(1) and amended section 344 to read: “A judgment of conviction shall be reversed for any error of law to the defendant’s prejudice appearing of record.”24 Despite the General Assembly’s obvious attempt to overrule Moore, our predecessor court consistently interpreted section 281, which precluded only “exceptions” to trial court decisions “on challenges to the panel, and for cause,” as precluding the right to appeal an erroneous failure to grant an excusal for cause. See, e.g., Conley v. Commonwealth, 225 Ky. 275, 8 S.W.2d 415, 417 (1928); Harris v. Commonwealth, 214 Ky. 787, 283 S.W. 1063, 1065 (1926); Lake v. Commonwealth, 209 Ky. 832, 273 S.W. 511, 512-13 (1925) (also holding that section 281 did not violate Section 11 of the Constitution of Kentucky); McKinzie v. Commonwealth, 193 Ky. 781, 237 S.W. 386, 387 (1922); Lawler v. Commonwealth, 182 Ky. 185, 206 S.W. 306, 309 (1918) (applying section 281 to deny review of prosecutor’s admittedly improper advice to jurors during voir dire that, if convicted of murder, the defendant would be eligible for parole in eight years); Barnes v. Commonwealth, 70 S.W. 827, 828 (Ky.1902); Gilbert v. Commonwealth, 51 S.W. 590, 590-91 (Ky.1899); Burton v. Commonwealth, 11 Ky. Op. 841 (1882); Rutherford v. Commonwealth, 76 Ky. (13 Bush) 608, 609-10 (1878).
Several of these opinions noted in passing that the trial court’s erroneous failure to excuse a juror for cause could not have been prejudicial because the defendant failed to show that he had exhausted all of his peremptory challenges. Conley, 8 S.W.2d at 417; Lake, 273 S.W. at 513; Gilbert, 51 S.W. at 591. That was the harmless error rule prevailing in civil cases to which, of course, section 281 of the Criminal Code did not apply. Day’s Comm. v. Exch. Bank of Ky., 116 S.W. 259, 259-60 (Ky.1909).
In 1932, the General Assembly once again attempted to make the erroneous denial of challenges for cause appealable, this time amending section 281 to read: “The decision of the court upon challenges, and for cause, or upon motions to set aside the indictment, shall be subject to exception.” 1932 Ky. Acts, ch. 63, § 2 (emphasis added). Shortly thereafter, our predecessor court held that it would find the erroneous failure to excuse a juror for cause to be harmless unless the juror actually served on the case or the defendant excused the juror peremptorily and exhausted all of his or her peremptory challenges in the process. Tate v. Commonwealth, 258 Ky. 685, 80 S.W.2d 817, 820 (1935). Except for some unfortunate dictum in Turpin v. Commonwealth, 780 S.W.2d 619, 621 (Ky.1989), and a short-lived holding in Dunbar v. Commonwealth, 809 S.W.2d 852, 853 (Ky.1991), that was premised upon the absence of a Constitutional guarantee of peremptory strikes (a holding that was quickly rejected in Thomas, 864 S.W.2d at 258-60, as an incorrect *136interpretation of Ross v. Oklahoma), we and our predecessor court have consistently applied the rule announced in Tate during the ensuing seventy years. Derossett v. Commonwealth, 867 S.W.2d 195, 197 (Ky.1993); Smith v. Commonwealth, 734 S.W.2d 437, 444 (Ky.1987); Lefevers v. Commonwealth, 558 S.W.2d 585, 587-88 (Ky.1977); Rigsby v. Commonwealth, 495 S.W.2d 795, 798-99 (Ky.1973), overruled on other grounds by Pendleton v. Commonwealth, 685 S.W.2d 549, 552 (Ky.1985); Jones v. Commonwealth, 281 S.W.2d 920, 925 (Ky.1955); Messer v. Commonwealth, 297 Ky. 772, 181 S.W.2d 438, 440 (1944). The same rule also applies in civil cases. Commonwealth, Dep’t. of Highways v. Ginsburg, 516 S.W.2d 868, 870-71 (Ky.1974); Carrithers v. Jean’s Ex’r, 249 Ky. 695, 61 S.W.2d 323, 325 (1933); Day’s Comm., 116 S.W. at 259-60.
Conversely, our courts also have consistently held that the erroneous denial of a challenge for cause is prejudicial and requires reversal for a new trial if the defendant used a peremptory challenge to excuse the juror and exhausted all of his or her peremptory challenges in the process. Fugate v. Commonwealth, 993 S.W.2d 931, 938 (Ky.1999); Thomas, 864 S.W.2d at 259; Thompson v. Commonwealth, 862 S.W.2d 871, 874-75 (Ky.1993) (death penalty case), overruled on other grounds by St. Clair v. Commonwealth, 140 S.W.3d 510, 570 (Ky.2004), superseded by rule on other grounds as recognized by Perdue v. Commonwealth, 916 S.W.2d 148, 159 (Ky.1995); Alexander v. Commonwealth, 862 S.W.2d 856, 864-65 (Ky.1993), overruled on other grounds by Stringer v. Commonwealth, 956 S.W.2d 883, 891 (Ky.1997); Montgomery v. Commonwealth, 819 S.W.2d 713, 717-18 (Ky.1991); Morris v. Commonwealth, 766 S.W.2d 58, 60 (Ky.1989) (failure to excuse for cause jurors who would only consider the death penalty); Grooms v. Commonwealth, 756 S.W.2d 131, 138 (Ky.1988) (failure to excuse for cause juror who would not consider full range of penalties); Marsch v. Commonwealth, 743 S.W.2d 830, 831 (Ky.1987); Brumfield v. Commonwealth, 374 S.W.2d 499, 500 (Ky.1964) (some jurors who should have been excused for cause actually served because defendant exhausted his peremptory challenges on other jurors who also should have been excused for cause); Tayloe v. Commonwealth, 335 S.W.2d 556, 557 (Ky.1960) (same); Calvert v. Commonwealth, 708 S.W.2d 121, 123 (Ky.App.1986); Godsey v. Commonwealth, 661 S.W.2d 2, 4-5 (Ky.App.1983).
The same rule has also been applied in civil cases, now governed by CR 47.03. Bowman ex rel. Bowman v. Perkins, 135 S.W.3d 399, 402 (Ky.2004) (plurality opinion); Conner v. Denney, 521 S.W.2d 514, 515 (Ky.1975); Davenport v. Ephraim McDowell Hosp., 769 S.W.2d 56, 59 (Ky.App.1988) (reversing without specifically reporting that the aggrieved party exhausted all peremptories — if not, then holding that erroneous denial of challenge for cause is reversible error even if litigant failed to exhaust all peremptories). Ginsburg, 516 S.W.2d at 870-71, Carrithers, 61 S.W.2d at 323, and Day’s Committee, 116 S.W. at 259-60, also clearly implied that such would have been the result had the party exhausted all peremptory challenges.
We and our predecessor court have long held that the right to have peremptory challenges allotted according to law in a civil case is a “substantial right.” See, e.g., Bowling Green Mun. Utils. v. Atmos Energy Corp., 989 S.W.2d 577, 580 (Ky.1999); Ky. Farm Bureau Mut. Ins. Co. v. Cook, 590 S.W.2d 875, 877 (Ky.1979); Eads v. Stockdale, 310 Ky. 446, 220 S.W.2d 971, 972 (1949); Olympic Realty Co. v. Kamer, 283 Ky. 432, 141 S.W.2d 293, 297 (1940); Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 984-85 (1933); Pendly v. Ill. Cent. *137R.R. Co., 92 S.W. 1, 2 (Ky.1906) (When they were permitted to remove six jurors, a substantial right of the appellant was taken from her”). Thus, our courts have consistently held that the denial or misallo-cation of peremptory challenges, when properly preserved, is per se reversible error. “[W]hen the error is properly preserved, reversal and a new trial should be awarded as a matter of law.” Cook, 590 S.W.2d at 877.
This has been the law of Kentucky in both civil and criminal cases since 1834. Atmos Energy, 989 S.W.2d at 580 (“Violations of CR 47.03, in order to be subject to appellate reversal, need not show actual prejudice. A simple violation suffices.”); Wells v. Conley, 384 S.W.2d 496, 498 (Ky.1964); Roberts v. Taylor, 339 S.W.2d 653, 656 (Ky.1960); Price v. Bates, 320 S.W.2d 786, 788 (Ky.1959); Williams v. Whitaker, 293 S.W.2d 627, 628 (Ky.1956); Pendly, 92 S.W. at 2; Hayden, 49 Ky. (10 B. Mon.) at 126; Pryor, 32 Ky. (2 Dana) at 298; Clarke, 29 Ky. (6 J.J. Marsh.) at 638; Davenport, 769 S.W.2d at 59 (“Granting the two non-antagonistic appellees six peremptory strikes was reversible error as a matter of law.”).
When the right of challenge is lost or impaired, the statutory conditions and terms for setting up an authorized jury are not met; the right to challenge a given number of jurors without showing cause is one of the most important rights to a litigant; any system for the empaneling of a jury that prevents or embarrasses the full, unrestricted exercise of the right of challenge must be condemned; ... the right to reject jurors by peremptory challenge is material in its tendency to give the parties assurance of the fairness of a trial in a valuable and effective way; the terms of the statutes with reference to peremptory challenges are substantial rather than technical; such rules, as aiding to secure an impartial, or avoid a partial, jury, are to be fully enforced; ... next to securing a fair and impartial trial for parties, it is important that they should feel that they have had such a trial, and anything that tends to impair their belief in this respect must seriously diminish their confidence and that of the public generally in the ability of the state to provide impartial tribunals for dispensing justice between its subjects.
Drury v. Franke, 247 Ky. 758, 57 S.W.2d 969, 984 (1933) (emphasis added) (applying rule to prospective juror’s failure to respond to voir dire question, thus precluding litigant from opportunity to excuse juror by peremptory challenge).
The United States Supreme Court has also recognized that some errors at trial cannot be analyzed under the harmless error standard.
In Fulminante [Arizona v. Fulminante, 499 U.S. 279, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991)], we distinguished between; on the one hand, “structural defects in the constitution of the trial mechanism, which defy analysis by ‘harmless-error’ standards,” 499 U.S., at 309, 111 S.Ct., at 1265, and, on the other hand, trial errors which occur “during the presentation of the case to the jury, and which may therefore be quantitatively assessed in the context of other evidence presented,” id., at 307-308, 111 S.Ct., at 1252, 1264.
Sullivan v. Louisiana, 508 U.S. 275, 281, 113 S.Ct. 2078, 2082-83, 124 L.Ed.2d 182 (1993). In other words, errors which occur during the presentation of the case to the jury can be evaluated for prejudicial effect by examining whether the introduction of other evidence diminished the gravity of the error. However, errors in the structure of the trial, such as allotting a *138party fewer peremptory challenges than allowed by law, defy such analysis.25
When the State has more peremptory challenges than the accused, the State has an unmistakable tactical advantage and the impartiality of the jury is compromised. Errors which affect the impartiality of the jury are, by definition, structural and require reversal.
State v. Good, 309 Mont. 113, 43 P.3d 948, 961 (2002).
If Appellant had been able to use the wasted peremptory challenge to excuse another objectionable (to him) juror, thus changing the composition of the jury, would the outcome have been more favorable to him — either with respect to guilt or punishment? That type of issue is incapable of proof, thus unsusceptible to harmless error analysis.
The requirement of a showing of actual prejudice effectively nullifies the requirements of the rule on allocation of peremptory challenges. To show actual prejudice, the complaining litigant would be required to discover the unknowable and to reconstruct what might have been and never was, a jury properly constituted after running the gauntlet of challenge performed in accordance with the prescribed rule of the game.
Cook, 590 S.W.2d at 877. In other words, proving prejudice from the loss of a peremptory strike “is like ignis fatuus, a will o’ the wisp incapable of proof.” Sand Hill Energy, supra note 16, at 510 (Cooper, J., dissenting).
As noted in the majority opinion, the number of peremptory challenges allotted to criminal defendants in felony cases in Kentucky has gradually diminished vis-a-vis those granted to the prosecution: from the original twenty for the defense and none for the prosecution prior to 1854, to twenty and five from 1854 until 1893, Johnson et al., supra, §§ 203, 204; to fifteen and five from 1893 to 1978, John D. Carroll, Code of Practice in Criminal Cases §§ 203, 204 (1893); 1962 Ky. Acts, ch. 234, § 0, Rule 9.40; to eight and five from 1978 to 1994, RCr 9.40(1); Order Amending Rules, Administrative Procedures of the Court of Justice, Part II, Jury-Selection and Management, at 20 (eff.Jan. 1, 1978); and finally to eight and eight, until today. RCr 9.40(1); Order Amending Rules of Civil Procedure (CR), Rules of Criminal Procedure (RCr), Rules of Supreme Court (SCR), 94-1, at 8 (eff.Oct. 1, 1994). That does not mean that entitlement to the number allotted by law is no longer a “substantial right.” It only means that the General Assembly and, subsequently, this Court have gradually recognized that in criminal cases, as has always been true in civil cases, there should be a level playing field between prosecution and defense. The purpose of specifically limiting and allocating peremptory strikes by statute or rule is so one side cannot unfairly “stack the deck” against the other. Holland v. Illinois, 493 U.S. 474, 481, 110 S.Ct. 803, 807-08, 107 L.Ed.2d 905 (1990). “[I]f one party is allowed more peremptory challenges than the other, he is in effect, given an advantage in that he may select by indirection particular veniremen to try his cause.” Williams v. Pichard, 150 Fla. 371, 7 So.2d 468 (1942). It is particularly egregious to place a criminal defendant at such a disadvantage. “Between him and the state the scales are to be evenly held.” Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).
*139No longer. Because of our decision today, peremptory challenges in both civil and criminal trials can be allocated at the whim of trial judges, who can control their allotment either by refusing to grant challenges for cause and thereby forcing the aggrieved party to waste his/her/its peremptory strikes on jurors who should have been excused for cause, or by simply mis-allocating the peremptory challenges by awarding a party more than or less than the number allowed by law. Either action will be deemed “harmless error” unless that aggrieved party can prove that a biased juror actually sat on the case — an improbable feat. “Providing an accused with the right to be tried by a jury of his peers gave him an inestimable safeguard ... against the compliant, biased, or eccentric judge.” Duncan v. Louisiana, 391 U.S. 145, 156, 88 S.Ct. 1444, 1451, 20 L.Ed.2d 491 (1968). Every experienced trial lawyer has a “war story” about a local judge who “took care of his ‘home folks.’ ” We were required to reverse Atmos Energy, a case involving multiple plaintiffs with identical interests and multiple defendants with antagonistic interests, because the trial judge equalized the peremptory strikes “as a matter of fairness.” 989 S.W.2d at 579. After today, such whimsical rulings will be deemed “harmless error.” What if the trial judge is a former prosecutor whose mind-set has not yet switched to neutral, so he ignores the mandate of Montgomery v. Commonwealth, 819 S.W.2d at 718, that trial judges “remove [the ‘magic question’] from their thinking and strike it from their lexicon,” and requires a defendant to use peremptory challenges to excuse one or more “rehabilitated” jurors whom Montgomery would require to be excused for cause?26 Harmless error.
“If one of an accused’s peremptory challenges could be taken away from him, why not five be taken, and if five, why not ten, leaving none .... ”
Johnson v. State, 43 S.W.3d 1, 6 (Tex.Crim.App.2001) (quoting Wolfe v. State, 147 Tex.Crim. 62, 178 S.W.2d 274, 279-80 (1944)).
To permit peremptory strikes to be allocated arbitrarily and inconsistently on a case-by-case, court-by-court basis would be intolerable. It would be better to abolish peremptory strikes than to permit them to become ... the tool of judicial arbitrariness.
Sand Hill, 83 S.W.3d at 512 (Cooper, J., dissenting).
IV. AFTERMATH OF MARTINEZ-SALAZAR.
As noted supra, Martinez-Salazar applies only to federal courts and is not binding on the states. In the five years since it was decided, nine states have abandoned the per se reversible error rule and embraced its reasoning. Dailey v. State, 828 So.2d 340, 344 (Ala.2001); State v. Hickman, 205 Ariz. 192, 68 P.3d 418, 427 (2003); State v. Santana, 135 Idaho 58, 14 P.3d 378, 384 (2000); State v. Entzi, 615 N.W.2d 145, 149 (N.D.2000); Green v. Maynard, 349 S.C. 535, 564 S.E.2d 83, 86 (2002); State v. Verhoef, 627 N.W.2d 437, 441-42 (S.D.2001); State v. Fire, 145 Wash.2d 152, 34 P.3d 1218, 1225 (2001); State v. Lindell, 245 Wis.2d 689, 629 N.W.2d 223, 250-51 (2001); Klahn v. State, 96 P.3d 472, 483-84 (Wyo.2004).
On the other hand, eleven state courts, six since 2002, have declined to follow the *140reasoning of Martinez-Salazar, specifically retaining the “per se reversible” rule. People v. Lefebre, 5 P.3d 295, 307 (Colo.2000) (rejecting Martinez-Salazar and holding that “[o]ur decisions have consistently recognized that, under Colorado law, a defendant suffers reversible prejudice if he is forced to use a peremptory challenge to remove a juror whom the trial court failed to remove for cause and he exhausts his peremptory challenges”); Busby v. State, 894 So.2d 88, 96-105 (Fla.2004) (rejecting Ross and Martinez-Salazar and retaining its rule that the failure to excuse for cause is reversible error per se if the defendant exhausts peremptories and identifies a juror he would have peremptorily excused if he had not exhausted peremptories); Fortson v. State, 277 Ga. 164, 587 S.E.2d 39, 41 (2003) (ignoring dissent’s urging that Martinez-Salazar be applied and recognizing that “causing a defendant to unnecessarily use a peremptory strike on a juror that should have been excused for cause is per se harmful error”); State v. Taylor, 875 So.2d 58, 62 (La.2004) (noting that Martinez-Salazar follows a different rule than is followed in Louisiana); State v. McLean, 815 A.2d 799, 805 (Me.2002) (“[W]hen a defendant’s right to have jurors selected in the manner prescribed by the Rules is impaired, as it was in this case, it would be virtually impossible for the State to show after conviction that the injury to the defendant is harmless, and equally difficult for the defendant to demonstrate prejudice.”); Whitney v. State, 158 Md.App. 519, 857 A.2d 625, 633 (2004) (“Although the Supreme Court in Martinez-Salazar has clarified as dictum the statement from Swain that the impairment of a federal defendant’s peremptory challenges dictates reversal per se, we discern no effort by the courts of this State to retreat from the ‘reversibility per se ’ rule for the judicial impairment of a party’s allotment of peremptory strikes.”).
See also State v. Good, 309 Mont. 113, 43 P.3d 948, 959-60 (2002) (prejudice presumed if juror should have been excused for cause, defendant used peremptory strike to excuse juror, and defendant exhausted all peremptory strikes — structural error not subject to harmless error analysis); People v. Cahill, 2 N.Y.3d 14, 777 N.Y.S.2d 332, 809 N.E.2d 561, 578 (2003) (“An erroneous denial of a defendant’s challenge for cause is not rendered ‘harmless’ because the defense later excuses the juror peremptorily. To the contrary, the defendant’s loss of the peremptory challenge constitutes the harm.” (Citations omitted.)); Hanson v. State, 72 P.3d 40, 48-49 (Okla.Crim.App.2003) (reversal required where one juror should have been removed for cause, and defendant exhausted all peremptories and identified additional juror he would have stricken (objectionable but not removable for cause) with the lost peremptory); Johnson v. State, 43 S.W.3d at 10-11 (Johnson, J. concurring) (“[T]he primary rationale for peremptory challenges in federal court ... [is] ‘to help secure the constitutional guarantee of trial by an impartial jury,’ Martinez-Salazar, 528 U.S. at 316, 120 S.Ct. at 782.... [W]e have consistently reversed convictions and ordered a new trial when ... the trial court improperly denied a challenge for cause and thereby forced the defendant to use a peremptory challenge ... to correct error by the trial court.”); Brown v. Commonwealth, 33 Va.App. 296, 533 S.E.2d 4, 8 n. 2 (2000) (prejudicial error occurs when a trial court forces a defendant to use a peremptory challenge afforded him by statute to excuse a juror who should have been excused for cause, rejecting Martinez-Salazar ).
It is generally accepted by jurisdictions operating under Martinez-Salazar ⅛ regi*141men that its principles apply to civil actions as well as to criminal prosecutions. Thompson v. Altheimer & Gray, 248 F.3d 621, 623-24 (7th Cir.2001) (“Martinez-Salazar was a criminal case but we cannot think of any difference which that would make.”); Walzer v. St. Joseph State Hosp., 231 F.3d 1108, 1111 (8th Cir.2000) (applying Martinez-Salazar to a Title VII action); cf. Cruz v. Jordan, 357 F.3d 269, 271 (2d Cir.2004) (deciding issue on other grounds but noting that “we see no reason why Martinez-Salazar would not apply to Cruz’s civil claim”). Indeed, Justice Keller, who is accurately identified by the majority opinion as having first advanced this notion in Kentucky, assumed it would apply to both civil and criminal cases, and to both the erroneous failure to grant a challenge for cause and the failure to allocate peremptories according to law. Sand Hill, 83 S.W.3d at 497-501 (Keller J., concurring); Stopher v. Commonwealth, 57 S.W.3d 787, 808-17 (Ky.2001) (Keller, J., dissenting).
Interestingly, the Alabama Supreme Court, which invoked Martinez-Salazar to deny a peremptory challenge to a criminal defendant in Dailey, 828 So.2d at 344, and to a medical malpractice plaintiff in Bethea v. Springhill Mem’l Hosp., 833 So.2d 1, 6-7 (Ala.2002), balked when a trial judge erroneously denied five challenges for cause by General Motors in a products liability action, thereby requiring the company to use five of its nineteen peremptory challenges to excuse those jurors. Gen. Motors Corp. v. Jernigan, 883 So.2d 646, 672-73 (Ala.2003). In that circumstance, the court held that General Motors’s rights had been “substantially impaired.” Id. Sound familiar? Does that mean that under the regime of Martinez-Salazar, appellate courts will evaluate on a case-by-case, party-by-party basis the number of peremptory challenges that must be lost, or the type of case in which they were lost, or the type of litigant who lost them, in order to determine whether a litigant’s “substantial rights” are impaired? Does it make a difference whether the aggrieved party is a criminal defendant or a medical malpractice plaintiff who lost one peremptory challenge, or a giant corporation that lost five?
Although the majority opinion purports only to overrule Thomas v. Commonwealth (while; curiously, concluding that Thomas was rightly decided because, like General Motors, the defendant was prejudiced too much), it has, in fact, overruled our entire judicial history with respect to peremptory challenges in civil and criminal27 cases. In doing so, the majority opinion has effectively delegated the allocation of peremptory challenges to trial judges, the motivations of the vast majority of whom are undoubtedly exemplary. However, I believe that the determination of the proper allocation of peremptory challenges should remain in the hands of appellate courts where the whims of one “compliant, biased or eccentric” judge, Duncan v. Louisiana, 391 U.S. at 156, 88 S.Ct. at 1451, if one there be, cannot alone deprive a litigant of his or her substantial right to the peremptory challenges allowed by law. I believe our historical treatment of the right to the peremptory challenges allotted by law as a substantial right is both correct and a matter of stare decisis. It took the General Assembly fifty-five years (1877-1932) to abrogate our prede*142cessor court’s erroneous denial of a criminal defendant’s right to the peremptory strikes guaranteed by law. Today, this Court has not only returned to those “dark ages,” it has compounded the error by applying the denial in a way that affects both civil and criminal litigants, whether plaintiff or defendant, person or corporation. Hopefully, it will not require another fifty-five years to correct this egregious error.
Accordingly, I dissent.
JOHNSTONE, J., joins this opinion. LAMBERT, C.J., joins in the legal analysis set forth in this opinion.. The Commonwealth's brief cites United States v. Martinez-Salazar, 528 U.S. 304, 120 S.Ct. 774, 145 L.Ed.2d 792 (2000), only for the propositions that peremptory strikes are not of constitutional dimension, an issue settled long ago in Stilson v. United States, 250 U.S. 583, 586, 40 S.Ct. 28, 30, 63 L.Ed. 1154 (1919) ("There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured.”), and that "[i]t cannot be reversible error for appellant to exercise a peremptory against a juror he wishes he could have struck for cause, if, like any other qualified juror, there is not basis to strike the juror for cause.” Appellee's brief, at 6 (emphasis added). Obviously, Martinez-Salazar has nothing to do with peremptorily challenging a qualified juror with respect to whom there is no basis for a challenge for cause.
. Both sides exercised all of their peremptory challenges, and neither side's challenges duplicated any of the other’s.
. Martinez-Salazar, however, did not ground its Holding on “harmless error,” but, apparently, on “unpreserved error,” as discussed infra in the text.
.The only conceivable reason for such a strategy would be when a guilty verdict is certain and the primary relief sought is the delay inherent in reversals and retrials, e.g., when the death penalty is imposed.
. Judge Hoffman is a “hands on” judge presiding over the District Court for the Second Judicial District of Colorado (Denver).
. On the other hand, Judge Posner posits that this puts an aggrieved civil "litigant in a heads-I-win-tails-you-lose position: if he wins a jury verdict, he can pocket his victory, and if he loses, he can get a new trial.” Thompson v. Altheimer & Gray, 248 F.3d 621, 623 (7th Cir.2001). That is why, as a young lawyer, I was schooled to rejoice if the trial court erred in favor of my opponent and to commence negotiations if the court erred in favor of my client.
. A Hobson's choice, named for Thomas Hob-son, an English liveryman who required his customers to take the horse nearest the stable door or none, is defined as "[t]he necessity of accepting something objectionable through the fact that one would otherwise get nothing at all.” Webster's Third New International Dictionary of the English Language Unabridged 1076 (1993).
. Trial by compurgation was employed primarily in minor criminal matters and civil disputes. The winner was the party who could produce the most or a requisite number of witnesses willing to swear to the truth of his oath. Moore, supra, at 27; 3 William Blackstone, Commentaries on the Law of England: A Facsimile of the First Edition of 1765-1769 342-44 (1979); Robert von Moschzisker, Trial by Combat §§ 43-45, at 34—37 (Bisel1922).
. Trial by battle was usually between royals represented by "champions.” William Forsyth, History of Trial by Jury 81 (1875); 3 Blackstone, supra note 8, at 337-41; von Moschzisker, supra note 8, § 17, at 14.
. If the accused survived unscathed the ordeal of, e.g., inserting his arm into a vat of *126scalding water, walking barefoot over hot coals, or being bound and thrown into a body of water, he was declared innocent by intervention of God; otherwise, he was guilty. 4 Blackstone, supra note 8, at 336-41; von Moschzisker, supra note 8, § 49, at 38-39.
. "No freeman shall be taken, or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed; nor will we pass upon him, nor condemn him, but by lawful judgment of his peers, or by the law of the land....”
. Of course, even into the late Middle Ages, most felonies were punishable by death. 4 Blackstone, supra note 8, at 95-96. Dickens described the prevalence of the death penalty in the late eighteenth century thusly:
[Pjutting to death was a recipe much in vogue with all trades and professions, and not least of all with Tellson’s [Bank], Death is Nature’s remedy for all things, and why not Legislation’s? Accordingly, the forger was put to Death; the utterer of a bad note was put to Death; the unlawful opener of a letter was put to Death; the purloiner of forty shillings and six pence was put to Death; the holder of a horse at Tellson’s door, who made off with it, was put to Death; the coiner of a bad shilling was put to Death; the sounders of three-fourths of the notes in the whole gamut of Crime were put to Death.
Charles Dickens, A Tale of Two Cities 62 (Signet 1960).
. One accused of treason retained the right to thirty-five peremptory challenges.
. The demise of the peremptory challenge in England reportedly was
"the result of a sustained campaign [during the 1980s] in Parliament and in the press alleging that defence counsel were systematically abusing it. In multi-handed trials, it was said, counsel were pooling challenges to 'pack' juries with individuals who were likely to acquit. The Cyprus spy trial was often cited as an example. In that instance seven jurors were challenged by de-fence counsel acting together. The jury, all young and male, acquitted all seven defendants. This case more than any other represented a watershed in the campaign to abolish the challenge, even though critics overlooked the fact that the entire jury panel summoned for the trial had been vetted for the prosecution by Special Branch and MI5.”
Raymond J. Broderick, Why the Peremptory Challenge Should Be Abolished, 65 Temple L.Rev. 373 n. 17 (1992) (emphasis added) (quoting Sean Enright, Reviving the Challenge for Cause, New L.J. 9 (Jan. 6, 1989)).
. Yet, Judge Hoffman reports that an informal poll of lawyers practicing in his court revealed that prosecutors were more zealously protective of the right of peremptory challenge than defense attorneys. Hoffman, Peremptory Challenges Should Be Abolished, supra, at 852-53. One prosecutor is reported to have asserted, "I'd rather get rid of challenges for cause.” Id. at 852 n. 194.
. As a practicing attorney some thirty years ago, I was retained to assist in defending the City of Bardstown, in neighboring Nelson County, in a personal injury lawsuit that arose out of a collision between a city fire truck and another motorist. My co-counsel *131was the city attorney. At the conclusion of voir dire, I suggested that we use our three peremptory challenges to excuse the plaintiff's Sunday School teacher, her childhood schoolmate, and a lady who had litigated her own personal injury case to a successful conclusion. My co-counsel pointed out that he had previously represented the ex-wives of two prospective jurors in their divorce proceedings and had prosecuted to conviction the son of another prospective juror for drunk driving. The Sunday School teacher, the childhood schoolmate, and the previously successful plaintiff remained on the jury. The city needed six peremptory challenges, not three. If the trial court had allotted six per-emptories to the city and only three to the plaintiff, today’s majority opinion would deem that allotment "harmless error” unless the plaintiff could prove that a biased juror actually sat on the jury. Sand Hill Energy, Inc. v. Ford Motor Co., 83 S.W.3d 483, 497-501 (Ky.2002) (Keller, J., concurring), cert. granted and judgment vacated by Ford Motor Co. v. Smith, 538 U.S. 1028, 123 S.Ct. 2072, 155 L.Ed.2d 1056 (2003).
. Although Batson was premised on the Fourteenth Amendment, which is applicable only to states, its holding has been held to apply as well to federal trials because "the Fifth Amendment's due process clause, applicable to the United States, has been construed to implicitly include an equal protection guaranty generally as broad as that of the Fourteenth Amendment.” United States v. Leslie, 813 F.2d 658, 659 (5th Cir.1987) (citing Buckley v. Valeo, 424 U.S. 1, 93, 96 S.Ct. 612, 670, 46 L.Ed.2d 659 (1976) (per curiam) ("Equal Protection Analysis in the Fifth Amendment area is the same as that under the Fourteenth Amendment.”)).
. Presumably, Batson also extends to non-minority races, e.g., Caucasians, see Caudill v. Commonwealth, 120 S.W.3d 635, 657 (Ky.2003), though the United States Supreme Court has yet to address the issue.
. Prior to 1802, all "penal” cases were tried in the court of quarterly sessions — a court of limited jurisdiction; the district court was a court of general jurisdiction. In 1802, district courts and courts of quarterly sessions were abolished and their jurisdiction transferred to circuit courts. Act of December 20, 1802, 3 Littell’s Laws, ch. 23, §§ 1, 7, 27, 32, pp. 37-48 (1811).
. Prior to 1976, our highest court was the "Court of Appeals.” Upon adoption of the Judicial Article that Court became the Supreme Court. 1974 Ky. Acts, ch. 84, § 2(1), (8).
. After the court of quarterly sessions and the district court were merged into the circuit court, see note 20, supra, our predecessor court held that a writ of error could be taken from circuit court in a penal case, over which the court of quarterly sessions previously had jurisdiction, but not in other criminal cases, over which the district court previously had jurisdiction. Montee v. Commonwealth, 26 Ky. (3 J.J. Marsh.) 132, 146 (1830).
.Chief Justice Robertson explained:
The reason for not tolerating writs of error, in criminal cases, punishable by corporal infliction, may be, because such a proceeding, would, in such cases, not only be unusual, but inconvenient, oppressive, and in some degree, subversive of the exigencies, and end of inflicting corporal punishment.
Montee, 26 Ky. (3 J.J. Marsh.) at 144—45 (emphasis added).
. This and subsequent editions of the Criminal Code governed criminal practice in Kentucky from 1854 until 1962, when the General Assembly repealed the last Criminal Code, 1962 Ky. Acts, ch. 234, § 62(2), and replaced it with the Rules of Criminal Procedure, id. § 0, subject to future amendments and the rule-making authority of the Judicial Department. Id., pmbl.
. 1876 Ky. Acts, (eff. January 1, 1877), Bullitt & Feland, supra, at 3, 61, 65 (1876). By an Act of March 4, 1880, section 340 was again amended to add additional harmless error language, i.e., "where, upon consideration of the whole case, the court is satisfied that the substantial rights of the defendant have been prejudiced thereby.” 1880 Ky. Acts, § 360, p. 42.
. The United States Supreme Court has never addressed whether the failure to allocate peremptory challenges according to law is a structural error. That, of course, does not mean that Kentucky cannot do so.
. In fact, we were recently presented with this exact scenario in another appeal from this same circuit, apparently because an insufficient number of jurors were available to permit excusáis for cause. Dickerson v. Commonwealth, 174 S.W.3d 451, 461 n. 3 (Ky.2005).
. Except for the period from 1877 to 1932 when our predecessor court inexplicably continued to apply provisions of the Criminal Code that had been repealed and the period from 1991 to 1993 when this Court inexplicably held that the denial of peremptory strikes was harmless error because peremptory strikes were not guaranteed by the Constitution. Dunbar, 809 S.W.2d at 853, abrogated by Thomas, 864 S.W.2d at 258-60.