The additional jurors shall be drawn in the same manner, have the same qualifications, be subject to the same examination and challenges, take the same oath, and have the same functions, powers, facilities, and privileges as the regular jurors. The trial court may use either of the following methods to select and impanel additional jurors:.
A Single Entity. During jury selection and trial of the case, the court shall make no distinction as to which jurors are additional jurors and which jurors are regular jurors. Before the jury retires to consider its verdict, the court shall select by lot the names of the requisite number of jurors to reduce the jury to a body of twelve or such other number as the law provides.
A juror who is not selected to be a member of the deliberating jury shall be discharged when that jury retires to consider its verdict. B Separate Entities. Following the selection of the jury of twelve regular jurors, the additional jurors shall be selected and impaneled as alternate jurors.
Alternate jurors in the order in which they are called shall replace jurors who become unable or disqualified to perform their duties prior to the time the jury retires to consider its verdict. An alternate juror who does not replace a regular juror shall be discharged when the jury retires to consider its verdict.
The court shall give the prospective jurors appropriate admonitions regarding their conduct during the selection process. After jurors are sworn, the court shall also give them appropriate admonitions regarding their conduct during the case.
In both situations these shall include admonitions:. A any incident involving an attempt by any person improperly to influence any jury member; or. On request, the parties shall be furnished with a list indicating for each member of the jury panel:. Information about previous jury experience need not be provided prior to the day of trial.
This rule assures counsel the right to conduct at least part of the voir dire examination of prospective jurors. It also expressly reflects the trial court's authority to sequester prospective and tentatively selected jurors from a prospective juror being individually questioned.
A prospective juror who has formed or expressed an opinion as to the merits of the case may still be qualified to serve, but only upon an unequivocal showing of impartiality.
The commission disapproves of questions tending to lead the prospective juror or suggest partiality in the first instance, and also disapproves of that procedure in "rehabilitating" the prospective juror into vocalizing impartiality. Such a prospective juror shall be held to be qualified only upon a truly unequivocal showing of impartiality. The procedure for exercising peremptory challenges in writing is designed to insulate parties and counsel from the public exercise of a peremptory challenge.
Counsel will be expected to honor the spirit of the rule and to maintain the privacy of their respective peremptory challenges. The identity of and minimal information about each member of the jury panel available upon request should save time by shortening the voir dire. Subdivision d permits trial judges to seat more than twelve prospective jurors for purposes of voir dire—possibly but not necessarily a number equal to twelve plus the number of peremptories to each side and the number of alternates available.
All of these persons in the jury "universe" could be questioned at once. Note also that under this procedure "replacement jurors will be seated in the panel of twelve in the order of their selection. For example, a judge might chose to impanel thirty-two prospects. Each would be assigned a number. If during the initial round of peremptory challenges jurors number 3 and 6 are excused, juror 13 would replace 3 and juror 14 would replace 6.
By this method lawyers would know who is coming up next. Subdivision e gives the state the same number of challenges as the accused. For example, in most felony trials each side would have eight strikes. This amendment conforms the rule to T. Subdivision f deletes the earlier limitation on the number of alternate jurors.
Now more than four alternates can be selected, which may be necessary for protracted trials. Rule 24 a 2 gives counsel the right to make brief, non-argumentative statements near the beginning of the jury selection process. These may be made before selection begins or when counsel is first permitted to ask questions of prospective jurors. During these remarks counsel should introduce themselves and briefly describe the nature of the case.
This process should give jurors a better sense of the participants in the trial and the nature of the responsibility the jurors may be chosen to undertake. When each side passes consecutively, the jury shall then be sworn, unless the court, for good cause, shall otherwise order.
The number of peremptory challenges remaining with a side shall not be diminished by any passing of a peremptory challenge. PART 1. TITLE 3. Repealed in Sec. Those jurors proceed to the jury box and are the jury for the trial. In these jurisdictions, lawyers representing the parties generally voice challenges unless the accused is self-represented. At this point, the parties have the opportunity to challenge the prospective jurors. Challenged jurors then exit the jury box.
The process continues until all challenges are exhausted, or the parties do not wish to exercise any more challenges. A similar process is used in Tasmania. There is no excuse process prior to the ballot. They are not sworn in again for each trial in which they participate. Later in this chapter, the Commission considers the Victorian process, and whether there is a need to change any aspects of this process.
Figures for —12 were similar: 5. For example, in a workplace injury matter, business or human resource managers might be seen as less sympathetic to the plaintiff, while prospective jurors with an obvious trade union affiliation might be seen by a defendant employer to be hostile to their case. The JCO advised that in —13 only 76 stand asides were made, compared with challenges. The strategic use of stand asides to achieve a jury that is more receptive to the prosecution case is prohibited, as is the use of stand asides based on the age, gender or race of the prospective juror.
These prosecution policies go a long way to explaining the significant disparity between the use of peremptory challenges and stand asides. Both defence practitioners and prosecutors explained that informal agreements are sometimes made for the prosecution to stand aside a prospective juror who is known to the defence, or a prospective juror who clearly shows they do not wish to be on the jury.
However, there appears to be no consistent practice, and the discretion to make such agreements rests with the individual prosecutor. For example, the Queensland Director of Public Prosecutions guidelines simply state that:. Selection of a jury is within the general discretion of the prosecutor. However, no attempt should be made to select a jury that is unrepresentative as to race, age, sex, economic or social background.
The most significant portion of this cost is borne by Victorian employers, rather than the Victorian government. So, for each criminal trial involving one accused, the JCO provides an additional 12 people to allow for six peremptory challenges and six stand asides. Allowances are also made for excuses and challenges for cause.
However, as knowledge of a party is a reason to be excused, the larger size of regional panels in theory at least [95] should not be attributed to peremptory challenges and stand asides, but rather to the likely number of applications for excuse.
Peremptory challenges add to the cost of the empanelment process by requiring more people to attend for jury service than would otherwise be the case. However, the relationship between the size of the pool and the size of the panel required is not a simple one-to-one relationship—the JCO does not bring in an extra prospective juror for every possible challenge.
This is because prospective jurors who are not selected for one trial return to the jury pool and may be selected for another jury.
The impact of stand asides is not considered, as they are so infrequently used. The actual and potential effect of peremptory challenges on representativeness is then examined. Lastly, the section considers the basis of challenges, including the views of prospective jurors on why they had been challenged.
Historically, jurors were drawn from a very narrow band of society, specifically male property owners. This was reflected in the second reading for the Juries Act, where the Attorney-General stated that:. A jury must be representative of the community if a person is to be tried by his or. An essential consideration regarding the link between juries and justice legitimacy is community participation … it is better for democratic governance that jurors sit in the courtroom, rather than it remain the exclusive domain of legal professionals.
This diversity is said to balance individual biases. The studies also suggest that the benefits of participation may go beyond the individual to family and friends.
This is illustrated by the data on the average gender composition of juries set out below. These demonstrate the potential for six peremptory challenges and three peremptory challenges respectively, to alter the gender composition of a jury in a criminal trial. This means they should be represented at a rate of 6. For every man challenged, two women are challenged. This pattern was consistent over —12 and — However, it is possible that the under-representation of women could be more exaggerated in individual trials.
Scenario 2 shows the potential for three peremptory challenges targeted to exclude women to alter the gender composition. Scenario 1: Using six peremptory challenges to exclude women. The defence strategy is to use all of its six peremptory challenges to challenge women who are balloted from the panel for the jury.
Eighteen people are selected from the panel to take into account six challenges for a jury of Of these, 9. As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 3. Scenario 2: Using three peremptory challenges to exclude women.
In this scenario, the accused has only three peremptory challenges. As in Scenario 1, the defence strategy is to use all of the peremptory challenges to challenge women who are balloted from the panel for the jury. Fifteen people are selected from the panel to take into account three challenges for a jury of Of these 7. As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 4. Despite the accused using five challenges, all of which were to women, [] eight of the final 12 jurors selected were women.
However, the Commission also observed criminal jury empanelments with the opposite outcome—where women were challenged disproportionately, and the final jury was composed largely of men.
However, this does not negate the potential for peremptory challenges to significantly skew representation of groups with certain characteristics if used in the way described in the scenarios.
The Commission also asked prospective jurors what they thought the basis of the challenge to them was. Some submissions from jurors and prospective jurors also stated their views on the basis of challenges they had observed. This accorded with the views of jurors and prospective jurors expressed in consultations and through the juror survey see Table 1 at [3.
Prospective jurors should be required to provide meaningful descriptions of their occupation or former occupation. Almost 20 per cent of the 72 survey respondents who had been challenged in criminal trials considered the challenge was based on their gender. However, none of the 22 respondents for civil trials considered gender had been the basis for the challenge against them.
A significant proportion of respondents for civil and criminal trials stated that they did not know the basis of the challenge against them. Table 1: Perceived basis for peremptory challenges []. Perceived basis for peremptory challenge These include:. Examples of this kind of challenge are noted at [3. One County Court judge questioned whether the law should continue to facilitate the exclusion of prospective jurors on bases which would amount to prohibited discrimination in other spheres of life.
Many studies indicate no link at all between juror characteristics and verdict preference. For example, one Supreme Court judge said that, even though she considered that there was little merit in the stereotypes and mythology that inform characteristic-based challenges, the use of peremptory challenges in these circumstances justified their availability.
She argued that far from ensuring an impartial jury, peremptory challenges may turn a representative, impartially selected sample of the community into a group which is more likely to be biased in favour of the accused. Some jurors consulted by the Commission expressed a similar view, as have some jury researchers.
Although the exact content of procedural fairness depends on the individual circumstances of the case, in general, it has two main aspects: []. It then discusses the benefits of procedural engagement by the parties through peremptory challenges. Finally, it discusses the role of peremptory challenges in ensuring the competence of the jury through the removal of jurors who are unwilling or unable to perform the task.
It has been recognised that aspects of the jury empanelment system can be modified or abolished by Parliament. Although the abolition was criticised by some practitioners at the time, [] a major review of criminal courts in England and Wales conducted in did not recommend reintroduction.
Further, it was noted that common assumptions, for example, that persons accused of sexual offences should challenge young women, could in fact be detrimental to the accused, as the jury may form negative views about the accused on the basis of such a strategy. It allows the defence to eliminate persons who are perceived, rightly or wrongly, to be potentially prejudiced against the defence. It therefore gives the accused some measure of control over the composition of the tribunal who will sit in judgment on him.
If that measure were lost, the accused would be likely to feel a considerable degree of injustice upon conviction. The benefit of enhanced perceptions of justice through the participation of the defendant in the jury empanelment process is now outweighed by the community ridicule that such a superficial, biased and embarrassing process brings to the justice system.
This is likely because, in civil jury trials, the parties are usually not directly involved in the empanelment process. The availability of 3 challenges per party might be seen as somewhat unfair to plaintiffs if there are several defendants as the challenges will be likely to give greater representation to those jurors thought likely to favour the defendant position.
To the extent that peremptory challenges do provide parties with a strategic advantage, [] this is arguably unfair to the plaintiff in such cases. At the empanelment stage, this unwillingness might be apparent from their demeanour, or the fact that they have unsuccessfully sought to be excused by the trial judge. For example, it sometimes becomes apparent during the empanelment or the trial that a prospective juror has a hearing impairment which makes them unable to hear the evidence.
The Commission also conducted a paper-based and online survey. The Commission identified themes from the responses and categorised them.
Some responses fell into more than one category. For example, one respondent who had experienced the parade said:. Some of these reactions were very strong. For example, respondents in this group said:. However, when presented with the alternative of simply standing and facing the accused, [] rather than parading, all participants preferred this alternative.
Consequently, the information below is based solely on the juror survey. Around 66 per cent of prospective jurors who had observed the process were unconcerned about it. However, of these, nearly two-thirds accepted the process, despite considering it uncomfortable. For example:. These objections tended to be based more on an objection to the accused having the right to influence the composition of the jury, rather than the effect of the process on prospective jurors.
Some participants also thought that the use of stereotypes as a basis for challenges was foolish or discriminatory, and should not be facilitated through peremptory challenges.
For criminal trials, 49 per cent favoured retaining peremptory challenges, while These alternatives are:. The most likely explanation for this is the ready availability of peremptory challenges.
There is also a very limited understanding among practitioners as to grounds and process for challenge for cause. The grounds specified in those Acts are that the person is not qualified for jury service or the person is not impartial. Their Honours cited, without express approval, a passage from the Criminal Law in New South Wales [] relied on by the trial judge, which provided that the grounds for challenge for cause were:.
First, the party who makes a challenge for cause must inform the judge of the reasons for the challenge and give the judge information and materials available to the party that are relevant to the challenge. Accordingly, challenges for cause and peremptory challenges should not be treated as alternatives to each other. Experience since peremptory challenge was abolished in England and Wales suggests that abolition would not result in a significant rise in challenge on cause shown.
The Commission accepts the arguments of practitioners and judges that challenge for cause:. Challenge for cause also provides an additional safeguard in the event a party exhausts all their peremptory challenges, and the party has grounds on which to base a challenge. A more limited version of juror questioning is allowed in Queensland in some circumstances.
The Queensland deputy sheriff has advised that while administratively workable, the questioning process in these trials was resource intensive and somewhat burdensome for jurors. There is a vast United States jurisprudence on the interrogation of jurors by counsel. The Commission considers it would add no benefit to Victorian jurisprudence on jury selection and if adopted would significantly change the Victorian culture on jury selection.
The Juries Act requires judges to inform jurors in all cases of:. Counsel are not permitted to cross-examine potential jurors. In high-profile cases, where there has been substantial pre-trial publicity of the accused or a witness is publicly well known, the judge usually asks the jury panel whether, as a result of what they have heard about the case, there is any juror who feels that they cannot consider the case impartially.
However, in asking this, judges usually explain to jurors that they will be guided and given directions by the judge throughout the trial on how they are to perform the jury function impartially and decide solely on the evidence admitted at trial.
It is also a less time-consuming and costly process, and is significantly less invasive for prospective jurors. Accordingly, the Commission does not consider that it is necessary or desirable to allow pre-trial questioning of jurors in Victoria, either as an exception along the lines of the Queensland Jury Act , or more generally as in the United States voir.
They must occur prior to the juror being sworn. Judges may also direct a prospective juror to stand by on their own motion. However, as noted at [3. They might also ask the Crown to stand aside a prospective juror who appears to be unable or unwilling to perform the task for example, if the prospective juror has unsuccessfully sought to be excused.
This is, in effect, a challenge by consent. This discretion is valuable but rarely used, and there appears to be no compelling need for it to be specified in the Juries Act. Peremptory challenges, by definition, do not require further rationale or explanation, so to require this would fundamentally change their character, and make them more akin to challenges for cause.
Review of peremptory challenges on these grounds is also likely to prove difficult and time-consuming. This is considered at [3.
In summary, the Commission recommends that peremptory challenges and stand asides be retained in criminal trials, but the number available be reduced to minimise the potential for jury manipulation, and to bring Victoria into line with New South Wales, Western Australia and South Australia.
0コメント