Jury selection is the beginning of the actual trial. A panel or group of potential jurors are brought before the judge and attorneys for questioning called voir dire to determine which persons will actually sit as jurors on the case. Although only 30 potential jurors need to be empanelled (O.C.G.A. § 15-12- 160), the panel of potential jurors usually ranges from 48 to 72 persons. It is chosen from the county jury list. In cases other than death penalty cases, voir dire does not have to be taken down by the court reporter. O.C.G.A. § 5-6-41(d); Angulo v. State, 314 Ga. App. 669 (2012). Only objections or motions during jury selection need to be recorded. O.C.G.A. § 17-8-5; Dunlap v. State, 291 Ga. 51 (2012); State v. Graham, 246 Ga. 341 (1980). If the attorney wants voir dire to be taken down, a specific request must be made. Bryant v. State, 270 Ga. 286 (1998). The appeals court will not speculate on error that may have occurred during jury selection when jury selection is not recorded. Angulo v. State, 314 Ga. App. 669 (2012).
The defendant has the right to be present at any proceeding in which the jury composition is selected or changed. Zamora v. State, 291 Ga. 512 (2012)). The judge should have no communication with the jury without the defendant present except as to matters of the comfort and convenience of the jury. Sammons v. State, 279 Ga. 386 (2005). This includes bench conferences. Zamora v. State, 291 Ga. 512 (2012).
There is no constitutional right that the panel that shows up for the trial will include African-American jurors, or even represent a view of the entire community. Greene v. State, 312 Ga. App. 666 (2011). A defendant cannot challenge the jury panel by showing that there are no African-American potential jurors on the panel. The challenge must be made to the procedure for compiling the jury list. Williams v. State, 287 Ga. 735 (2010); Rosser v. State, 284 Ga. 335 (2008). Certain persons may be exempt from jury service due to a hardship. Under O.C.G.A. § 15-12-1.1, the judge can excuse a potential juror if he is “engaged in work necessary to the public health, safety or good order, is a full-time student, is the primary caregiver of a child six years of age or younger, is the primary teacher in a home study program,” or shows other good cause. The decision to excuse a juror for hardship is in the judge's discretion. Young v. State, 290 Ga. 392 (2012). The clerk can be delegated the authority to excuse jurors as long as the excusals do not alter, deliberately or inadvertently, the nature of the jury lists. Walker v. Hagins, 290 Ga. 512 (2012). A person who has been placed on First Offender probation can serve on a jury. Humphreys v. State,
287 Ga. 63 (2010).
There are two parts to voir dire: the general questioning of all of the potential jurors at the same time and the individual questioning of each potential juror. General voir dire usually begins by the judge introducing all of the parties. The judge may ask if any potential juror is not a resident of the county where the case is being tried. The judge may also ask whether any potential juror is related by blood or marriage to the parties in the case. The judge or prosecutor will read the indictment.
The judge usually asks three questions that are required by statute: 1) Has anyone formed or expressed an opinion as to the guilt or innocence of the accused?;
2) Does anyone have any bias or prejudice resting on their mind for or against the accused?; and 3) Is your mind perfectly impartial between the State and the accused? O.C.G.A. § 15-12-164. If a juror answers one of these statutory questions so as to render him not qualified he should be excused by the judge. Fuller v. State, 313 Ga. App. 759 (2012). What usually happens when a juror answers a statutory question is the judge and attorneys follow-up to see if in fact the juror is biased. In following up it is inappropriate for the judge to simply ask questions in a manner which is more an instruction to the juror on what answers are sought than an attempt to determine the juror's bias. Ivey v. State, 258 Ga. App. 587 (2002). This is called improper rehabilitation of the juror by the judge. The judge should err on the side of caution by dismissing, rather than trying to rehabilitate biased jurors. Ashmid v. State, 316 Ga. App. 550 (2012).
After the judge asks the group general questions, the prosecutor is allowed to ask general questions of the entire group. When the prosecutor finishes, the defense attorney gets to ask general questions. As questions are asked, the potential jurors hold up their hands or cards with their number to indicate a response to the question. Hypothetical questions during jury selection are discouraged, but may be allowed by the judge. State v. Newton, S13G0668; Ellington v. State, 292 Ga. 109 (2012).
After the general questioning has concluded, the larger group is broken into smaller groups of usually 12-15 potential jurors for individual questioning. Each side gets to follow up on the responses that the potential juror gave to the general questions as well as question the potential juror generally about their background. If a topic is so sensitive that a potential juror does not feel comfortable discussing it during general or smaller individual questioning, the judge will usually allow the lawyers to question the potential juror outside the presence of the other individuals. Kerdpoka v. State, 314 Ga. App. 400 (2012.
The sole purpose of voir dire is to determine the impartiality of potential jurors and their ability to treat the case on the merits with objectivity and freedom from bias and prior inclination. Questions of a technical legal nature and questions that ask the potential juror to prejudge the case are improper in a voir dire examination. Stewart v. State, 262 Ga. App. 426 (2003). Since there is often a fine line between asking potential jurors how they would decide the case and questions that merely seek to expose bias or prejudice, the scope of the voir dire examination of necessity must be left to the sound discretion of the judge. Bryant v. State, 288 Ga. 876 (2011); Sallie v. State, 276 Ga. 506 (2003). According to the Georgia Court of Appeals, “running through the entire fabric of our Georgia decisions is a thread which plainly indicates that the broad general principle intended to be applied in every case is that a juror shall be so free from either prejudice or bias as to guarantee the inviolability of an impartial trial. If error is to be committed, let it be in favor of the absolute impartiality and purity of jurors.” Garduno v. State, 299 Ga. App. 32 (2009).
In the examination of a potential juror, each attorney has the right to inquire of the individual examined about any matter or thing which would illustrate any interest of the potential juror in the case, including any opinion as to which party ought to prevail, the relationship or acquaintance of the potential juror with the parties or counsel, any fact or circumstance indicating any inclination, leaning, or bias which the person might have respecting the subject matter of the case or the counsel or parties, and the religious, social, and fraternal connections of the potential juror. O.C.G.A. § 15-12-133; Collins v. State, 310 Ga. App. 613 (2011). However, hypothetical questions that would require the juror to prejudge the case are improper. Polanco v. State, A14A0617 (possible reaction to large number of counts in the indictment); Evans v. State, A14A0513 (possible prejudice from prior convictions). A party has the right to question potential jurors regarding possible racial bias and prejudice. Legare v. State,
256 Ga. 302 (1986). Nevertheless, the judge has discretion over the scope of permissible questions and how the voir dire is conducted. Ramirez v. State, 279 Ga. 569 (2005); Meeks v. State, 269 Ga. App. 836 (2004).
Peremptory Strikes & Challenges for Cause
During jury selection, both the prosecution and defense are given a limited number of peremptory strikes that can be used to remove potential jurors that the party does not believe will be fair to their side. O.C.G.A. § 15-12-165. Both the State and the defense get nine strikes that can be used to strike a potential juror off the jury panel. As long as the strikes are not used based on race, gender or nationality, each side is free to use them as they choose. If there are multiple defendants, the defendants must split the nine strikes between the defense. Dixon v. State, 285 Ga. 312 (2009). The defense attorneys can ask for additional strikes, but the decision is left to the discretion of the judge. Further, if the defendants do not use all of their strikes, it may be impossible to show that they were harmed by the judge's refusal to allow additional strikes. McIntyre v. State, 311 Ga. App. 173 (2011); Denny v. State, 281 Ga. 114 (2006).
In order to avoid having to use a peremptory strike, the attorney can ask the judge to strike a potential juror because the potential juror clearly cannot be fair to both sides. This is called a challenge for cause. In order to strike a juror for cause, it must be shown that the juror holds an opinion of the guilt or innocence of the defendant that is so fixed and definite that the juror will be unable to set the opinion aside and decide the case based upon the evidence and the judge's instructions on the law to be applied in the case. Cwikla v. State, 313 Ga. App. 526 (2012); Cade v. State, 289 Ga. 805 (2011).
A potential juror's belief that he can render a fair verdict is not always determinative because “jurors who have expressed a bias may well mistakenly believe they can set aside their preconceptions and inclinations – certainly every reasonable person wants to believe he or she is capable of doing so.” Garduno v. State, 299 Ga. App. 32 (2009). However, a potential juror's mere “indecisiveness” as to whether he could be fair and impartial is not sufficient to support a strike for cause. Grimes v. State, S14A1162. A judge is not required to excuse a prospective juror who simply expresses reservations about his ability to set aside his personal experiences. Herrera v. State, 288 Ga. 231 (2010). Moreover, a potential juror who expresses a willingness to try to be objective and whose bias arises from feelings about the particular crime as opposed to feelings about the defendant may be eligible for service. Amador v. State, 310 Ga. App. 280 (2011); Corza v. State, 273 Ga. 164 (2000). Similarly, a potential juror who has expressed doubts about his ability to be impartial will be eligible to serve where he also positively testifies that, despite his general doubts, he could set his feelings aside and make a decision based on the facts and law alone. Cuzzort v. State, 307 Ga. App. 52 (2010). A juror who because of certain life experiences expresses doubt that he can be impartial if the evidence triggers those experiences does not have to be excused for cause. However, a juror who states that his life experiences will prevent him from listening to the evidence before forming a judgment must be excused for cause. Brown v. State, 315 Ga. App. 115 (2012).
In order to be subject to dismissal for cause, a member of the jury panel who is a law enforcement officer must be a full-time sworn police officer with arrest powers. Blanch v. State, 306 Ga. App. 631 (2010).
There is no rule that a potential juror cannot be related to a grand juror who returned the indictment in the case. White v. State, 310 Ga. App. 306 (2011); King v. State, 273 Ga. 258 (2000). A potential juror's relationship to a witness in the case is not grounds to excuse the juror for cause. Valdez v. State, 310 Ga. App. 274 (2011); Spence v. State, 238
Ga. 399 (1977).
The fact that a potential juror has formed an opinion about the credibility of a witness does not mandate that he be excused for cause. Sharpe v. State, 288 Ga. 565 (2011); Tennon v. State, 235 Ga.
594 (1975), cert.den. 426 U.S. 908 (96 SC 2231, 48
LE2d 833) (1976).
The decision to strike a potential juror for cause lies within the sound discretion of the judge and will not be set aside absent some manifest abuse of that discretion. Abdullah v. State, 284 Ga. 399 (2008); Smith v. State, 312 Ga. App. 174 (2011). Since the judge's conclusion on the bias of a juror is based on findings of demeanor and credibility, these findings are given great deference. Grovner v. State, 317 Ga. App. 623 (2012). The erroneous decision to allow a challenge for cause is not a basis for appeal if a competent and unbiased jury is finally selected. Humphreys v. State, 287 Ga. 63 (2010).
Each juror who has not been stricken for cause is eligible, also called qualified, to serve on the jury. Since both the State and defense get nine strikes, thirty jurors must be qualified to get a jury of twelve jurors. Each side gets one strike for each alternate juror. A jury with one alternate requires thirty-three qualified potential jurors. Where an otherwise qualified potential juror indicates that he can and will fairly evaluate the evidence, the party who wishes to eliminate him must do so by means of the peremptory strike. White v. State, 313 Ga. App. 605 (2012);
Sharpe v. State, 288 Ga. 565 (2011).
Selecting or Striking the Jury
Once the required number of qualified potential jurors is achieved, the lawyers can start selecting the jury. Jury selection is actually a process of de- selection in which each side gets a chance to make sure a particular potential juror does not get on the jury. The system by which juries are selected does not include the right of any party to select certain jurors, but rather to permit parties to protect themselves against prejudice by allowing them to exclude unacceptable jurors. A defendant has no right to a particular juror. Cannon v. State, 288 Ga. 225 (2010).
The actual selection of the jury is usually done silently by the clerk passing a piece of paper back and forth between each side. The prosecution gets the first opportunity to approve of the juror with a check mark or exercise a peremptory strike by putting S-1. After the prosecutor indicates their position as to juror number one, the defense can either accept the juror by also making a check mark or strike the juror with a peremptory strike indicating such with D-1. This process continues with each potential juror until 12 jurors and one or more alternate jurors have been selected. After discovering that the defense has accepted a particular juror, the State "cannot then change its mind and excuse the juror." Sakobie v. State, 115 Ga. App. 460 (1967). However, not every deviation from this rule justifies a reversal of a defendant's conviction. Cox v. State, 293 Ga. App. 98 (2008).
BATSON AND MCCOLLUM CHALLENGE
A party may not use its peremptory strikes to strike jurors based on race, gender, or nationality. If a defendant believes the State has used its peremptory strikes in a discriminatory manner, the defendant can raise a motion under Batson v. Kentucky, 476 U.S. 79 (1986). Similarly, if the prosecution believes that the defense has exercised peremptory strikes in a discriminatory manner, they can raise a motion under Georgia v. McCollum, 505 U.S. 42 (1992).
In evaluating a Batson or McCollum challenge to the use of peremptory strikes, a judge applies a three- part test: First, the side claiming an improper peremptory strike must make a prima facie showing of discrimination. They can establish a prima facie case of purposeful discrimination in selection of the jury on evidence that the other side used all their strikes on a certain group. A prima facie case can also be made by showing that the strikes resulted in the “total exclusion” of a group, for example, African- Americans from the jury. Lemon v. State, 290 Ga. App. 527 (2008).
Second, the burden of production then shifts to the side making the strike to give a neutral reason for the strike. A neutral reason need not be persuasive, plausible, or even make sense. Culver v. State, 314 Ga. App. 492 (2012). However, the reason must be concrete, tangible, neutral and neutrally applied. Wilkins v. State, 291 Ga. 483 (2012). Unless discriminatory intent is inherent in the explanation for the strike, the reason given will be accepted as neutral. Washington v. State, 310 Ga. App. 775 (2011); Veasey v. State, 311 Ga. App. 762 (2011). The reason may be based on the juror's demeanor. O'Connell v. State, 294Ga. 379 (2014); Heard v. State, S14A0563. A peremptory strike may be based on a jurors belief that law enforcement officers are racially motivated Quillan v. State, 279 Ga. 698 (2005).
Third, after hearing from both sides and considering the totality of the circumstances, the judge then decides whether the movant carried his burden of proving that discriminatory intent in fact motivated the strike. Thomas v. State, 274 Ga. 156 (2001); Turner v. State, 267 Ga. 149 (1991). The movant may carry his burden of persuasion and win the Batson or McCollum motion by showing that similarly situated jurors of another group were not struck or that the neutral reason for a strike is so implausible or fantastic that it renders the explanation pretextual.
The judge's decision rests largely upon assessment of the attorney's state of mind and credibility; it therefore lies peculiarly within a judge's province. Bell v. State, 306 Ga. App. 853 (2010). A judge's finding as to whether the movant has proven discriminatory intent is entitled to great deference and will not be overturned on appeal unless clearly erroneous. Ananaba v. State, A13A2425; Barnes v. State, 269 Ga. 345 (1998); Younger v. State, 288 Ga. 195 (2010).
When a Batson or McCollum challenge results in a finding that jury selection process was discriminatory and when the jurors remain unaware of the party who struck them (because the selection was silent), reinstating improperly challenged jurors is appropriate. Brown v. State, 307 Ga. App. 797 (2011).
The jury that is selected is administered an oath. O.C.G.A. § 15-12-139. The jury oath is mandatory and the judge's failure to give the oath is reversible error. Adams v. State, 286 Ga. 496 (2010). However, the mere failure of the transcript to reflect whether the jury was sworn does not constitute reversible error. Hill v. State, 291 Ga. 160 (2012). Once the oath has been administered, double jeopardy attaches. Herrington v. State, 315 Ga. App. 101 (2012). Prior to a jury being sworn, a defendant cannot ask for a mistrial. White v. State, 313 Ga. App. 605 (2012). If a defendant believes that potential jurors have been irreparably prejudiced by something that was said or done during jury selection, the proper method is either a "challenge to the poll" or a motion for a postponement to impanel other jurors who had not heard the remark. Bell v. State, 311 Ga. 289 (2011).
Jurors are told not to discuss the case with anyone or amongst themselves until they begin deliberations. They are not allowed to conduct any independent research or utilize social media concerning the case. No outside influence should be brought to bear on the minds of the jury. Fuller v. State, 313 Ga. App. 759 (2012).
It is customary during a trial to stand as the jury enters and leaves the courtroom.
Removal of Jurors
A juror can be removed from the jury at any time even during deliberations "if good cause is shown to the court that the juror is unable to perform his duty, or for other legal cause.” O.C.G.A. § 15-12-172; Brown v. State, 310 Ga. App. 285 (2011); Moon v. State, 288 Ga. 508 (2011). A juror can even be removed after the jury has reached and announced its verdict. Calmes v. State, 312 Ga. App. 769 (2011); Murray v. State, 276 Ga. 356 (2003).
There must be some sound basis upon which the judge decides to remove a juror. For example, a juror can be removed for failing to give accurate information during jury selection. Johnson v. State, 289 Ga. 498 (2011); Suits v. State, 270 Ga. 362 (1998). A juror can be removed for sleeping during the trial. Gibson v. State, 290 Ga. 6 (2011).
The decision to remove a juror from the jury is left to the discretion of the judge. Tolbert v. State, 300 Ga. App. 51 (2009). The judge should have a hearing to inquire of the juror regarding the reasons removal may be appropriate. Crowley v. State, 315 Ga. App. 755 (2012). Removal of the juror without any factual support or for a legally irrelevant reason is prejudicial. Butler v. State, 290 Ga. 412 (2012). A defendant is entitled to a jury untained by improper influence. Collins v. State, 290 Ga. 505 (2012). During a trial the judge should not in any manner communicate with the jury about the case in the absence of the defendant and his attorney. Ramage v. State, 314 Ga. App. 651 (2012); Hanifa v. State, 269 Ga. 797 (1998). Also, communication between a juror and the victim's family during trial is improper. Shank v. State, 290 Ga. 844 (2012). A witness should not speak with jurors while a trial is ongoing. Brown v. State, 314 Ga. App. 198 (2012);
Jones v. State, 289 Ga. 111 (2011). An unauthorized contact between a juror and a member of the prosecutor's office will not necessarily require a new trial if the two did not discuss the merits of the case. Chance v. State, 291 Ga. 241 (2012); Smith v. State, 261 Ga. App. 781 (2003). However, some communications do not involve the case and are inconsequential and not prejudicial. State v. Clements, 289 Ga. 640 (2011). When improper conduct is shown, there is a presumption that it is harmful to the defendant. Fuller v. State, 313 Ga. App. 759 (2012). The State must prove beyond a reasonable doubt that no harm occurred. Keaton v. State, 311 Ga. App. 14 (2011).
The first alternate juror takes the place of the removed juror. Crowley v. State, 315 Ga. App. 755 (2012).