In the case of Davis v. Ayala, Hector Ayala was convicted for three murders and sentenced to death in California. However, during his trial, the prosecution had dismissed all potential black and Hispanic jurors using peremptory challenges (the right to reject a juror without stating a reason). The defense argued that this constituted racial discrimination under Batson v. Kentucky (1986), but each time they raised an objection it was discussed outside of their presence - known as "ex parte". On appeal, the Ninth Circuit Court ruled that these ex parte discussions violated Ayala's rights according to federal law. However, when appealed again by Donald Davis (warden), the Supreme Court reversed this decision in 2015 with a 5-4 vote led by Justice Alito. They concluded that any error made by conducting these hearings ex parte did not have substantial impact on jury selection or verdicts reached; therefore there wasn't sufficient grounds for overturning Ayala’s conviction.

In the dissenting opinion for Davis v. Ayala, Justice Breyer, joined by Justice Ginsburg, disagreed with the majority's application of harmless-error review. They argued that this case was not about whether a judge could exclude a defendant from an in camera hearing but rather if it was constitutional to exclude defense counsel as well. The dissenters believed that excluding defense counsel violated Ayala’s Sixth Amendment right to counsel and his Fourteenth Amendment due process rights. Furthermore, they contended that these violations were not harmless beyond reasonable doubt because there is no way to know how presence of defense might have altered what occurred during those hearings or their outcome.