JURY SELECTION (CRIMINAL) 1. Qualifications Qualifications for jurors in all cases, criminal and civil, are established by G.S. 9-3. A person who is not qualified under that statute is subject to a challenge for cause. The qualifications set by G.S. 9-3 are: a. Citizen of North Carolina and resident of the county b. Has not served as a juror during the last two years c. At least eighteen years old d. Physically and mentally competent e. Can understand the English language f. Has not been convicted of or pleaded guilty or no contest to a felony without restoration of citizenship rights g. Has not been adjudged mentally incompetent 2. Challenges for cause [G.S. 9-15, 15A-1212] Note: There is no limit on the number of challenges for cause. a. Not qualified under G.S. 9-3 b. Incapable of serving because of mental/physical infirmity c. Is or has been a party, witness, grand juror, trial juror, or other participant in proceedings related to the criminal charge against the defendant. d. Is or has been a party adverse to the defendant in a civil action, or a prosecuting witness or victim in a criminal action involving the defendant e. Is related to the defendant or prosecuting witness by blood or marriage within six degrees (see Consanguinity Table) f. Has formed or expressed an opinion as to the guilt or innocence of the defendant (DO NOT ASK or allow others to ask what that opinion is, though) g. Is presently charged with a felony h. Cannot render a verdict in accordance with law in North Carolina (death penalty, issues concerning crime charged, etc.) i. Is otherwise unable to serve as a fair and impartial juror 3. Peremptory challenges [G.S. 15A-1217] In a noncapital case, the State and each defendant get six peremptory challenges. In a capital case, the State and each defendant get fourteen peremptory challenges. Each party is entitled to one additional peremptory challenge for each alternative juror. For more information see NORTH CAROLINA TRIAL JUDGES BENCH BOOK, SUPERIOR COURT, VOL. 1 (Criminal), Chapter 20: Jury Selection (3 rd ed.) (Institute of Government 1999) Jury Selection (Criminal) - 1
. Batson challenges in a nutshell [Batson v. Kentucky, 79 U.S. 76 (1986)] Source: Superior Court Judge Ripley Rand RULE: Peremptory challenges based on race, gender, national origin, religion, etc., are impermissible under the Equal Protection Clause and Article I, 26 of the North Carolina Constitution. IMPORTANT NOTE: Where Batson is at issue, the group identity of a peremptorily excused juror must be established in the record. The court should make direct inquiry of the juror, with the answer appearing in the record. The only person who can establish the group identity is the juror himself or herself. One easy way to establish this in the record is, in the introductory part of voir dire, ask jurors to introduce themselves and then to give their race, sex, and whether over/under 0 years of age for statistical purposes. Order of Events: The peremptory challenge/prima facie showing Rebuttal by other side (neutral reason) Surrebuttal (pretextual) Judge s ruling (including findings of fact) The Challenge: After the exercise of the peremptory challenge, the claimant must make a prima facie showing of discrimination that is, a juror of a cognizable group identity (race, gender, etc.) has been subject to peremptory challenge and relevant circumstances raise an inference of discrimination. Factors that may be relevant: (1) A pattern of peremptories against a certain group (regular/disproportionate use, whether any other group members passed and in what percentage, jury's overall demographic composition). (2) How jury selection goes questions/remarks/mannerisms of the side exercising challenges. (3) The dynamics of the case (group identity of all involved in the trial, including witnesses and attorneys; whether the case is particularly susceptible to group discrimination). () Past history of the parties, including whether the challenged party has a history of systematically excluding group members; credibility of the claimant. If no prima facie showing: inquiry can end there. BUT: judge may nevertheless request challenged party to provide neutral reasons for peremptories without deciding whether there has been a prima facie showing (this is a good idea). Rebuttal: If a prima facie showing has been made, the judge must allow rebuttal, an explanation of the questioned challenge. If the explanation is neutral, it need not be "persuasive, or even plausible if it is neutral on its face, it is acceptable rebuttal. Examples of acceptable, neutral reasons for peremptory challenges: (1) Unemployed university student "too liberal," not mature or stable. (2) Juror did not have enough education. (3) Juror's age/children s age close to defendant's age. () Juror s criminal record (5) Juror's knowledge of case, lack of maturity, or belief that drug use could be an excuse for a charged crime. (6) Juror's familiarity with/relation to other lawyer for other side, history of unemployment, belief that criminal justice system operates unfairly. (7) Familiarity with defendant or defendant s relatives. Jury Selection (Criminal) - 2
(8) Disapproval of death penalty/statement that the juror could not sit through long trial/exposure to pretrial publicity. (9) Juror's relatives charged with crime similar to defendant's charge. (10) Juror's statement that juror would "second-guess" a decision to convict if the juror thought the penalty for the charged offense was too harsh. Examples of inadequate rebuttal: (1) Failure to offer any reason for a challenge. (2) General assertion of good faith with no specific explanation. (3) Simple denial of discrimination with no specific explanation. () Statement that a person of a particular race was challenged on the assumption that the person would be partial to a party of the same race. Questionable reasons: (1) Reasons that may be based on group identity, such as living in a predominately black community. (2) Vague reasons such as "I don't like the juror's looks/background" when basis for dislike is not apparent in the record. Surrebuttal: If the challenged party offers adequate rebuttal, then the challenger tries to show that the proffered reasons are pretextual. Factors going to pretextual nature of challenges: (1) Susceptibility of the particular case to group discrimination. (2) Prosecutor's demeanor is there a careful process of deliberation based on many factors or not? (3) The judge's own evaluation, including (a) Consideration whether similarly situated white jurors were not challenged. (b) The relevance of the State's explanation to the case at trial. (c) Evaluation of the explanation in light of the explanations offered for other peremptory uses. (d) The judge's assessment of voir dire as a whole, including comparing observations and assessments of jurors with those explained by the State, guided by personal experiences with voir dire, trial tactics, and the prosecutor and by any surrebuttal evidence offered by the defendant. Note: The fact that seated nonminority jurors share similarities with removed minority jurors does not in itself dispositively show discrimination. Also note that cross-examination of the lawyer on the other side about pretextual nature of challenges is not allowed. Judge s ruling: After surrebuttal, the judge rules on whether there is Batson error. (These rulings are accorded great deference on appeal largely hinge on credibility.) Give reasons for your ruling, whatever it is judge must make findings of fact supporting ruling. REMEDY: Where the judge finds that there has been discriminatory use of peremptory challenge, the judge must get rid of the whole jury panel and start over with new panel unaffected by Batson error. DO NOT RESEAT THE JUROR THAT HAS BEEN WRONGLY EXCUSED. Jury Selection (Criminal) - 3
For further information and cases see NORTH CAROLINA TRIAL JUDGES BENCH BOOK, SUPERIOR COURT, VOL. 1 (Criminal), Chapter 20, pp. 12-17 (on peremptory challenges) (3 rd ed.) (Institute of Government 1999). Jury Selection (Criminal) -
Table of Consanguinity Parents 1 Subject Brothers 2 Sisters Grand Parents 2 3 Cousins 3 Grand Parents Cousins 5 Second 6 Cousins - Grand Parents - Grand 5 Cousins 6 Second Cousins 7 Cousins 8 Children 1 Grand Children Grand 3 Children Nephews 3 Nieces 2 Grand Nephews/Nieces - Grand 5 Nephews/Nieces Cousins 5 Cousins 6 Cousins 7 Thrice Removed Second Cousins 7 Second Cousins 8 Second Cousins 9 Thrice Removed Cousins 9 Cousins 10 Cousins 11 Thrice Removed Jury Selection (Criminal) - 5