¶ 28. (concurring). I join the majority opinion. I write separately to add some further considerations supporting the rule announced today, which I believe is both correct as a rule of law and necessary to implement the public policy underlying the statutes.
¶ 29. All members of the court agree on the following principles: The defendant does not claim that his Sixth Amendment right to an impartial jury was violated. Rather, he claims that the circuit court violated his statutory rights (and accordingly his procedural due process rights) by denying him the effective exercise of all seven peremptory challenges guaranteed him by Wis. Stat. § 972.03 (1995-96). Ross v. Oklahoma, 487 U.S. 81 (1988), frames our inquiry. Under Ross a criminal defendant is not entitled to a new trial if state law requires the defendant to exercise a peremptory challenge when the trial court errs in refusing to remove a challenged juror for cause. In Wisconsin, a criminal defendant need not exercise a peremptory challenge to a juror who should have been dismissed for cause; the criminal defendant does not waive the objection to the juror by failing to use a peremptory challenge. State v. Gesch, 167 Wis. 2d 660, 671, 482 N.W.2d 99 (1992).
*26¶ 30. The members of the court disagree about the nature of the Wisconsin statutory right to peremptory challenges.
¶ 31. The majority opinion holds that a criminal defendant in Wisconsin is entitled to his full complement of peremptory challenges; if he uses a peremptory challenge to strike a juror who should have been struck for cause, as he requested, the conviction will be reversed.1 The majority concludes that reversal is the only feasible way to vindicate a party's right to peremptory challenges when that right is impinged by the circuit court's erroneous denial of a challenge for cause.
¶ 32. The dissenting opinion contends that the purpose of peremptory challenges is to impanel an impartial jury. According to the dissenting opinion, a defendant cannot be heard to complain if he uses some or all of his peremptory challenges to correct the circuit court which has erroneously refused, on request of the plaintiff, to strike jurors who should as a matter of law be struck for cause.2 The rule proposed by the dissenting opinion would ill serve the purposes of both peremptory and for-cause challenges and would fail to give effect to the statutory provisions mandating challenges for cause and peremptory challenges.
*27¶ 33. I believe the majority opinion accurately describes the nature of the statutory right to peremptory challenges; I find no convincing indication that the statutory right to peremptory challenges is limited in the manner the dissenting opinion suggests.
¶ 34. Wisconsin's relevant statutes are written in unconditional and mandatory terms. "If a juror is not indifferent in the case, the juror shall be excused." Wis. Stat. § 805.08(1) (applicable to criminal trials by virtue of Wis. Stat. § 972.01). "[T]he defendant is entitled to 6 peremptory challenges." Wis. Stat. § 972.03.3 By providing for both peremptory challenges and challenges for cause, the legislature can be presumed to have intended the two types of challenges to serve distinct purposes.
¶ 35. The dissenting opinion views the purposes of peremptory challenges and challenges for cause to be the same, namely to impanel an impartial jury. Accordingly the dissenting opinion would allow peremptory challenges to correct trial court errors with regard to challenges for cause and would test prejudice to the defendant solely by asking whether the jury was impartial. The two types of challenges serve different purposes and it is reasonable to conclude that the legislature intended these distinct purposes to be given effect.
¶ 36. Challenges for cause are intended to remove prospective jurors "on a narrowly specified, provable, and legally cognizable basis of partiality." Swain v. Alabama, 380 U.S. 202, 220 (1965), overruled on other grounds by Batson v. Kentucky, 476 U.S. 79 *28(1986). The ancient right4 to peremptory challenges serves less discrete purposes; the right "permits rejection for a real or imagined partiality that is less easily designated or demonstrable." Id. As the name suggests, the right is peremptory; no reason need be had or given.5
¶ 37. Blackstone provided two grounds for the right to peremptory challenges: to involve defendants intimately in the selection of their jurors and to remove any disincentive to thorough voir dire. Blackstone set forth the two purposes as follows:
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 reasons assigned prove insufficient to set aside the juror, perhaps the bare questioning his indifference may sometimes provoke resentment; to prevent all ill consequences from which, the prisoner is still at liberty, if he pleases, peremptorily to set him aside.
*294 Blackstone's Commentaries 353, quoted in People v. Bodine, 1 Denio 281, 310 (N.Y. Sup. Ct. 1845) (holding that a court "certainly would not be allowed to disregard a challenge for cause, and turn the party making it over to his peremptory challenges").6
¶ 38. The harmless error analysis urged by the dissent would fail to serve the purposes of the statutes. The defendant in the present case cannot show the effect of the judge's error on the verdict; he has shown, however, that he had to expend a peremptory challenge to remove a juror who was required to be removed for cause. If the statutory right to peremptory challenge is to be meaningful, the parties must be able to exercise their challenges independent of the circuit court's striking for cause. "[B]urdening the parties with a supervisory duty over the trial court when it errs in denying a challenge for cause. . .eviscerates the sub-stánce of challenges for cause as well as peremptory challenges." State v. Huerta, 855 P.2d 776, 780 (Ariz. 1993).
¶ 39. Our determination of legislative intent in this case is guided also by the principle that circuit courts must be encouraged to assiduously guard a defendant's right to an impartial jury. The court has admonished circuit courts that "because it preserves the appearance as well as the reality of an impartial trial," circuit courts should err on the side of dismissing a challenged juror when the challenged juror's pres*30ence may create bias or an appearance of bias, even when an appellate court would not reverse the circuit court's decision to allow the juror to sit. Kanzenbach v. S.C. Johnson & Son, Inc., 273 Wis. 621, 627, 79 N.W.2d 249 (1956). A restrictive view of the purposes of peremptory challenges would provide the opposite incentive to the circuit courts.
¶ 40. The majority opinion properly concludes that peremptory challenges are not substitutes for challenges for cause. In this case the defendant was forced to surrender his statutory right to a peremptory challenge to preserve his constitutional right to an impartial jury. Because the defendant was denied a substantial right guaranteed by statute, his conviction must be reversed.
¶ 41. For the reasons set forth, I write separately.
¶ 42. I am authorized to state that Justice Janine P. Geske joins this opinion.
The use of peremptory challenges that violates the Equal Protection Clause is not at issue in this case.
The State concedes that situations might arise which warrant reversal in connection with the use of peremptory challenges. For example, according to the State, prejudicial error might occur when the trial judge repeatedly and deliberately misapplies the law to force the defendant to use his peremptory challenges or when the circuit court makes good faith errors forcing the defendant to use most or all of his peremptory challenges to correct the errors. Brief for State at 20.
Because alternate jurors were called in this case the defendant was entitled to an additional peremptory challenge as provided by Wis. Stat. § 972.03.
Chief Justice Burger traced the right of peremptory challenge from the Roman era through the English Middle Ages to the early American republic in Batson v. Kentucky, 476 U.S. 79, 118-20 (1986) (Burger, C.J., dissenting).
The United States Supreme Court has described the right of peremptory challenge as "one of the most important of the rights secured to the accused." Pointer v. United States, 151 U.S. 396, 408 (1894).
For recent discussions of the respective purposes of peremptory and for-cause challenges see United States v. Annigoni, 96 F.3d 1132, 1136-39 (9th Cir. 1996) (en banc) (holding that erroneous denial of peremptory challenge requires automatic reversal of conviction); Nancy S. Marder, Beyond Gender: Peremptory Challenges and the Role of the Jury, 73 Tex. L. Rev. 1041 (1995).