Right to Conduct Voir Dire - RCr 9.38 allows for a couple of different scenarios: (1) the court allows the attorneys to conduct the voir dire, (2) the court conducts the voir dire but must then allow the attorneys to supplement the voir dire with either direct questions or questions submitted to the court in writing. If the death penalty is sought, there must be individual voir dire on capital punishment, race, or pretrial publicity and, upon request, the court must allow the attorneys to conduct it.
Although there is no statutory right to conduct voir dire in Kentucky, “part of the guarantee of a defendant’s Sixth Amendment right to an impartial jury is an adequate voir dire to identify unqualified jurors. A voir dire examination must be conducted in a manner that allows the parties to effectively and intelligently exercise their right to peremptory challenges and challenges for cause.” Hayes v. Com., 175 S.W.3d 574, 584 (Ky.2005), quoting Morgan v. Illinois, 504 U.S. 719, 729-30, 112 S.Ct. 2222, 2230, 119 L.Ed.2d 492 (1992).
The Purpose of Voir Dire – The purpose of voir dire is not to get jurors either to indicate or to commit to which verdict they might render in the case once the case is submitted to the jury. The purpose of voir dire, rather, is simply to obtain a fair and impartial jury free of any interest, bias or prejudice which might prevent their finding a just and true verdict. Questions put to jurors should be as varied and elaborated as circumstances require, but questions which are clearly designed to have jurors indicate or commit to how they will vote are simply not proper. Ward v. Com., 695 S.W.2d 404 (Ky.1985). See, e.g., Bowen v. Com., 2005 WL 2318967 (Ky.2005), unpublished, in which the defendant attempted to play to the jurors his taped statement to police during voir dire, in an attempt to determine if they would vote to convict based upon the statement.
Voir Dire on Sentencing Ranges - It is reversible error to refuse to allow voir dire on sentencing ranges. Varble v. Com., 125 S.W.3d 246 (Ky.2004). However, voir dire on sentencing ranges need not include informing the jury of the sentencing ranges for either enhanced or lesser included offenses, Com. v. Philpott, 75 S.W.3d 209 (Ky.2002), nor should it include the sentencing ranges for PFO enhancements, Lawson v. Com., 53 S.W.3d 534 (Ky.2001).
Voir Dire on Defendant Not Testifying – Refusal to allow defense counsel to voir dire prospective jurors regarding whether they would hold against defendants the fact that they exercised their Fifth Amendment right not to testify was an abuse of discretion. Hayes v. Com., 175 S.W.3d 574 (Ky.2005).
Voir Dire on Reasonable Doubt – Reasonable doubt can no more be defined in voir dire than in opening statements or closing arguments. Marsch v. Com., 743 S.W.2d 830 (Ky.1988), Com. v. Callahan, 675 S.W.2d 391 (Ky.1984). Nevertheless, for the Commonwealth to point out that “beyond a reasonable doubt” is different from “beyond a shadow of a doubt” is not an attempt to define reasonable doubt. It is, rather, simply to point out the obvious. Howell v. Com., 163 S.W.3d 442 (Ky.2005). On the other hand, “It is proper for a defendant to inform jurors in voir dire that the Commonwealth’s burden of proof is ‘beyond a reasonable doubt’ and to inquire whether they will hold the Commonwealth to that burden.” Hayes v. Com., 175 S.W.3d 574, 587 (Ky.2005).
However, the use of an analogy is an attempt to define reasonable doubt, and it violates the 14th Amendment safeguard “against the dilution of the principle that guilt is to be established by probative evidence and beyond a reasonable doubt.” See, e.g., Rice v. Com., 2006 WL 436123 (Ky.2006), unpublished, in which the prosecutor used the example, during voir dire, of deciding to marry someone. See also Marsch, supra, in which the prosecutor, during voir dire, used the example of himself as a hypothetical witness to an auto accident. “In all those cases [where this court found an impermissible attempt to define ‘reasonable doubt’], some attempt was made to use other words to convey to the jury the meaning of ‘beyond a reasonable doubt’” Howell, supra, at 447, quoting Simpson v. Com., 759 S.W.2d 224, 226 (Ky.1988).
Referring to Defense Attorney as Public Defender - It is entirely improper to make any reference to whether the defendant’s attorney is being paid, or to how much or how little. Goff v. Com., 44 S.W.2d 306 (Ky.1931).
TIMING OF STRIKES FOR CAUSE
Pursuant to RCr 9.36(1), “Challenges for cause shall be made first by the Commonwealth and then by the defense,” and (3) “All challenges must be made before the jury is sworn. No prospective juror may be challenged after being accepted unless the court for good cause permits it.”
STRIKES FOR CAUSE, GENERALLY
Strikes for cause are unlimited. KRS 29A.290(2)(a). Each defendant has the right to a fair and impartial jury under the 6th Amendment to the United States Constitution and § 11 of the Kentucky Constitution. Beyond this substantive right, each defendant also has a right to substantive due process in the picking of a jury under the 14th Amendment to the United States Constitution and § 2 of the Kentucky Constitution.
Legal Standard - RCr 9.36(1) provides the standard for when jurors should be struck for cause: “When there is reasonable ground to believe that a prospective juror cannot render a fair and impartial verdict on the evidence, that juror shall be excused as not qualified.” The test on appeal for failure to strike a juror for cause is abuse of discretion. Adkins v. Com., 96 S.W.3d 779 (Ky.2003).
The trial court must determine the existence of bias based on the particular facts of each case. Taylor v. Com., 335 S.W.2d 556 (Ky.1960).
“A potential juror may be disqualified from service because of connection to the case, parties, or attorneys and that is a bias that will be implied as a matter of law.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998) (emphasis added).
“Irrespective of the answers given on voir dire, the court should presume the likelihood of prejudice on the part of the prospective juror because the potential juror has such a close relationship, be it familial, financial or situational, with any of the parties, counsel, victims or witnesses.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), Montgomery v. Com. 819 S.W.2d 713 (Ky.1992). “Some relationships between a potential juror and an attorney, party, victim, or witness are so close that the implied bias from the relationship ‘transgresses the concept of a fair and impartial jury.’” Cochran v. Com., 114 S.W.3d 837, 840 (Ky.2003).
“Once that close relationship is established, without regard to protestations of lack of bias, the court should sustain a challenge for cause and excuse the juror.” Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), Ward v. Com., 695 S.W.2d 404 (Ky.1985).
Resolving Doubts About Bias - “Even where jurors disclaim any bias and state they can give the defendant a fair trial, conditions may be such that their connection would probably subconsciously affect their decision in the case. It is always vital to the defendant in a criminal prosecution that doubt of unfairness be resolved in his favor.” Fugate v. Com., 993 S.W.2d 931 (Ky.1999), Sholler v. Com., 969 S.W.2d 706 (Ky.1998), Randolph v. Com., 716 S.W.2d 253 (Ky.1986), overruled on other grounds.
STRIKES FOR CAUSE, EXAMPLES
Juror Fails to Meet Statutory Qualifications – The factors which disqualify a person for jury service are set forth in KRS 29A.080(2)(g) and 29A.130. Counsel may particularly wish to ask if any jurors have served on a grand jury within the last 24 months prior to their current term of service on the petit jury (the disqualification period used to be 12 months). See, e.g. Musgrove v. Com., 2006 WL 3333351 (Ky.App.2006), unpublished.
Juror Has Formed Opinion Regarding Guilt - Neace v. Com., 230 S.W.2d 915 (Ky.1950), Montgomery v. Com., 819 S.W.2d 713 (Ky.1992), Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Juror Has Trouble Accepting Legal Principles - Juror demonstrated a serious problem accepting the concepts of a defendant’s right to remain silent, the burden of proof, and the presumption of innocence. Humble v. Com., 887 S.W.2d 567 (Ky.App.1994). See also Hayes v. Com., 175 S.W.3d 574 (Ky.2005), for a full discussion.
The following is meant to be illustrative but not exhaustive.
Juror Has A Close Relationship With a Party:
Juror discussed the case with a relative of the victim. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Married to a person who was a second or third cousin of the victim. Marsch v. Com., 743 S.W.2d 830 (Ky.1987).
First cousin to victim. Pennington v. Com., 316 S.W.2d 221 (Ky.1958).
Juror’s mother was a first cousin to victim’s mother. Leadingham v. Com., 201 S.W. 500 (Ky.1918).
Juror’s wife was a second cousin of defendant. Smith v. Com., 734 S.W.2d 437 (Ky.1987).
But see George v. Com., 885 S.W.2d 938 (Ky.1994), where the Court held that no error occurred when the trial court allowed a juror to remain on the jury after she realized during testimony that she was the victim’s third cousin.
Juror Has A Close Relationship With a Witness:
Juror’s being related to and living in the same rural area of the county with the complaining witness’s boyfriend, and being married to boyfriend’s cousin, may have justified a challenge for cause. Anderson v. Com., 864 S.W.2d 909, 911 (Ky.1993).
Where juror, an investigative social worker, was employed by CHR, the same organization with which a key Commonwealth witness was employed, and was assigned to the same unit as two key Commonwealth witnesses, it was an abuse of discretion to fail to excuse the juror for cause. Alexander v. Com., 862 S.W.2d 856, 864 (Ky.1993), overruled on other grounds.
Juror knew both the Commonwealth Attorney and the chief investigating officer in the crime. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Juror was a friend of the chief investigating officer. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Juror was the brother of a sheriff who was active in the prosecution of the case. Hayes v. Com., 458 S.W.2d 3 (Ky.1970).
First cousin to a key prosecution witness. Sanborn v. Com., 754 S.W.2d 534 (Ky.1988).
Wife of the arresting police officer. Calvert v. Com., 708 S.W.2d 121 (Ky.1986).
Juror who played little league baseball and went to high school with a witness for the prosecution ten years before trial, but who denied any continuing social relationship with the witness, had to be excused for cause in prosecution for murder and burglary, where witness appeared ambivalent as to whether prior relationship would affect his determinations of credibility. Fugate v. Com., 993 S.W.2d 931 (Ky.1999).
Juror Has A Close Relationship With Attorney:
Prospective and actual jurors who had previously been represented by the prosecutor and who stated they would seek out such representation in the future (although attorney/client relationship does not automatically disqualify a juror). Fugate v. Com., 993 S.W.2d 931, 938 (Ky.1999), Riddle v. Com., 864 S.W.2d 308 (Ky.1993).
Juror knew both the Commonwealth Attorney and the chief investigating officer in the crime. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Juror had business dealings with the prosecution. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Juror’s wife and the prosecutor were first cousins by marriage (however, relationship by blood and affinity are treated the same for purposes of juror disqualification). Thomas v. Com., 864 S.W.2d 252, 256-7 (Ky.1993).
Uncle of the Commonwealth Attorney. Ward v. Com., 695 S.W.2d 404, 407 (Ky.1985).
Secretary of the Commonwealth Attorney. Position gave rise to a loyalty to employer that would imply bias. Randolph v. Com., 716 S.W.2d 3 (Ky.1986), overruled on other grounds.
Manager of an ambulance service, which had a contract with the Ambulance Board for which the prosecutor was the attorney, and who had been asked as manager of the Ambulance Board to participate in the search for the defendants (who were charged with escape) and who had been held hostage in a previous escape. Montgomery v. Com., 819 S.W.2d 713 (1992).
County attorney at the time of the defendant’s preliminary hearing. Godsey v. Com., 661 S.W.2d 2 (Ky.App.1983).
Juror was being represented by the prosecutor on a legal matter at the time of trial. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).
Prosecutor was cousin’s son-in-law. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).
But see Sholler v. Com., 969 S.W.2d 706, 709 (Ky.1998), wherein the trial court did not abuse its discretion in refusing to dismiss for cause a potential juror who knew the Commonwealth attorney through mutual friends and their mutual membership in a large card club.
Juror Has Other Biases:
Where the defendant, on trial for sexual crimes against his seven year-old daughter, is black, his wife is white, and their child is biracial, a juror who expressed a distaste for “mixed marriages,” and stated he would judge the wife’s credibility a degree differently than he would judge the credibility of other witnesses, should have been excused for cause. Alexander v. Com., 862 S.W.2d 856, 864 (Ky.1993), overruled on other grounds.
Where juror stated (1) he was racially biased, (2) he left his neighborhood because young black men were hanging around in the area, (3) when he walked into the courtroom, he assumed Appellant was the accused because of the color of his skin, and (4) he was opposed to, in fact offended by, inter-racial relationships, he should have been excused for cause. Gamble v. Com., 68 S.W.3d 367, 373 (Ky.2002).
Jurors related to prison employees, who knew many prison employees, whose two best friends and two brothers worked at the prison, and had discussed the case with their brothers should have been struck for cause. Thompson v. Com., 862 S.W.2d 871, 875 (Ky.1993).
Former police officer and present deputy sheriff. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992). But see Sholler v. Com., 969 S.W.2d 706, 708 (Ky.1998), where the court reaffirmed the principle espoused in Sanders v. Com., 884 S.W.2d 665 (Ky.1990), cert. denied, 502 U.S. 831, 112 S.Ct. 107, 116 L.Ed.2d 76 (1991), which held that police officers are not disqualified per se to serve as jurors in criminal cases.
Employee of the prison from which defendants escaped and who acknowledged he would give more credibility to a law enforcement officer’s testimony and would feel “bad” about acquitting the defendants if proof was not sufficient to show guilt. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).
Outside patrolman and guard for a prison who acknowledged he had spoken with persons in the prison regarding the escape. Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).
REHABILITATING BIASED JURORS
There is simply no “magic question” such as, “Can you set aside what you have heard, your connection, your religious beliefs, etc., and make a decision based only on the evidence and instructions given by the Court?” Montgomery v. Com., 819 S.W.2d 713, 717-718 (Ky.1992). In Montgomery, the Court declared “the concept of ‘rehabilitation’ is a misnomer in the context of choosing qualified jurors and direct[ed] trial judges to remove it from their thinking and strike it from their lexicon.” Id. at 718. This basic principle has been repeatedly upheld by the Court. Hodge v. Com., 17 S.W.3d 824 (Ky.2000), Gill v. Com., 7 S.W.3d 365 (Ky.1999).
Where potential jurors’ attitudes and past experiences created a reasonable inference of bias or prejudice, their affirmative responses to the “magic question” did not eradicate the bias and prejudice. Alexander v. Com., 862 S.W.2d 856, 865 (Ky.1993), overruled on other grounds.
Once a potential juror expresses disqualifying opinions, the potential juror may not be rehabilitated by leading questions regarding whether she can put aside those opinions and be fair and impartial. Thomas v. Com., 864 S.W.2d 252, 258 (Ky.1993), overruled on other grounds (juror expressing strong opinion on death penalty). “Even where jurors disclaim any bias and state that they can give the defendant a fair trial, conditions may be such that their connection [to the case or the parties] would probably subconsciously affect their decision in the case.” Thomas at 255. See also Gamble v. Com., 68 S.W.3d 367 (Ky.2002) (juror expressing strong racial bias).
The Kentucky Supreme Court has also held that the answers of prospective jurors “to leading questions, that they would disregard all previous information, opinions and relationships should not be taken at face value.” Marsch v. Com., 743 S.W.2d 830, 834 (Ky.1988) (emphasis added). “Mere agreement to a leading question that the jurors will be able to disregard what they have previously read or heard, without further inquiry, is not enough...to discharge the court’s obligation to determine whether the jury [can] be impartial.” Miracle v. Com., 646 S.W.2d 720, 722 (Ky.1983).
PEREMPTORY STRIKES
Legal Standard – In Thomas v. Com., 864 S.W.2d 252 (Ky.1993), the court established a bright line rule which required automatic reversal whenever a defendant had to use his peremptory strikes in order to remove jurors who should have been struck for cause. The premise of the rule was that a defendant is entitled to the free use of all his peremptories without having to use them on jurors who should have already been removed. This rule was abandoned in Morgan v. Com., 189 S.W.3d 99 (Ky.2006), overruling Thomas.
However, Morgan was itself overruled on December 20, 2007 in Shane v. Com., 2007 WL 4460982 (Ky.2007), to be published, not yet final. So the Thomas rule is once again the law: being forced to use a peremptory challenge on a juror who should have been struck for cause is a denial of the full use of a defendant’s peremptory strikes and, as such, is reversible error per se.
Number of - In District Court each side gets 3 peremptory strikes, in Circuit Court each side gets 8. KRS 29A.280(1) and RCr 9.40(1).
Additional peremptories are required when alternate jurors are seated and also when co-defendants are tried together. RCr 9.40(1),(2), and (3). When alternates are seated, there is one more strike per side and also one more per defendant. In addition, when co-defendants are tried together the defense gets one more defense strike for each co-defendant, to be exercised independently of any other defendant.
Springer v. Com., 998 S.W.2d 439 (Ky.1999). “[T]he basic entitlement to peremptory challenges under RCr 9.40(1) is eight for the Commonwealth and eight for the defense. If more than one defendant is being tried, the defendants are entitled to a total of ten peremptory challenges: eight to be exercised jointly pursuant to RCr 9.40(1), and one each to be exercised independently pursuant to RCr 9.40(3). If one or two additional (alternate) jurors are seated, the defendants are entitled to a total of thirteen peremptory challenges: nine to be exercised jointly pursuant to RCr 9.40(1) and (2); one each to be exercised independently pursuant to RCr 9.40(3); and an additional one each to exercised independently pursuant to RCr 9.40(2)....” Id., 444.
The exception is that in cases with just a single defendant and alternate jurors, the defendant only gets one extra peremptory, like the prosecution, for a total of 9. The reasoning is that, if there are not multiple co-defendants, there is no “side,” but rather just the single defendant. Stopher v. Com., 57 S.W.3d 787 (Ky.2001), Furnish v. Com., 95 S.W.3d 34 (Ky.2002).
Practice Tip: You must object to not getting your correct number of peremptories. Failure to give the correct number of peremptories is grounds for automatic reversal. The objection is waived, however, once the jury is sworn. Springer v. Com., 998 S.W.2d 439 (Ky.1999), Com. v. Young, 212 S.W.3d 117 (Ky.2006).
BATSON CHALLENGES
The Equal Protection Clause of the 14th Amendment prohibits the discriminatory use of peremptory strikes in order to exclude members of a cognizable minority from participation in jury service. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
Batson applies to both prosecutors and defendants. Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), Wiley v. Com., 978 S.W.2d 333 (Ky.App.1998).
“[A] criminal defendant may object to race-based exclusions of jurors effected through peremptory challenges whether or not the defendant and the excluded juror share the same race.” Powers v. Ohio, 499 U.S. 400, 401, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991).
Batson challenges can also be made to peremptory strikes which are discriminatory on the basis of gender. J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994), Wiley v. Com., 978 S.W.2d 333 (Ky.App.1998). (Hannan v. Com., 774 S.W.2d 462 (Ky.App.1989), which says that Batson does not apply to gender discrimination in the use of jury strikes, was decided before J.E.B.)
Batson challenges must be made before the swearing of the jury and the discharge of the remainder of the jury panel. RCr 8.18, Dillard v. Com., 995 S.W.2d 366 (Ky.1999), Gamble v. Com., 68 S.W.3d 367 (Ky.2002).
The Batson process has three steps: first, the objector must make a prima facie showing of purposeful discrimination in the opponent’s exercise of his or her peremptory strikes. The traditional Batson situation obtains when a defendant is a member of a minority and the jurors being struck are members of the same minority. In that situation, a prima facie case would involve a showing that a) the defendant is a member of a cognizable racial group, b) the prosecution used peremptory strikes to remove jurors of the defendant’s race, and c) the facts and circumstances raise the inference that the prosecutor excluded the jurors on the basis of their race. Remember, though, that under Powers, supra, the defendant no longer has to be of the same race or gender as the excluded jurors.
Second, if the court rules that a prima facie case has been made, then the burden shifts to the prosecutor to offer an alternative non-discriminatory explanation of the use of his peremptories. The explanation offered need not rise to the level of justifying a strike for cause, and may not even be particularly plausible. But it must be race- or gender-neutral on its face. The information the prosecutor points to does not have to be proven true, but simply offered in good faith. It can come to the prosecutor through means outside of direct questioning of the juror, such as the impressions or perceptions of counsel, personal knowledge, or jury questionnaires. Com. v. Snodgrass, 831 S.W.2d 176 (Ky.1992). It all depends on the facts and circumstances of each particular situation.
Nevertheless, self-serving explanations based merely on claims of intuition or mere disclaimers of any discriminatory motive are not sufficient to overcome a Batson challenge. Washington v. Com., 34 S.W.3d 376 (Ky.2000).
Last, the court must then decide – as it would decide any disputed fact – whether the proffered reasons are, firstly, neutral and reasonable and then it must also decide, secondly, that the reasons are not a pretext for purposeful discrimination. Clear and reasonably specific reasons for legitimately excluding jurors must meet both requirements. Gamble v. Com., 68 S.W.3d 367 (Ky.2002).
Practice Tip: Batson Issues. To preserve the issue on appeal, remember to renew your objection to the Commonwealth’s use of peremptories after the Commonwealth offers its reasons. If the prosecutor gives a reason not evident from the record, move for an evidentiary hearing. State again you do not believe the reasons given were non-discriminatory and object again to the seating of the jury before the jury is sworn.
CHECKLIST FOR STRIKING JURORS
1) Are We On the Record? - The voir dire of the prospective jurors must be recorded and transcribed, or videotaped, and designated as part of the record on appeal.
2) Do We Know Who We’re Talking About? – It is extremely common for appellate attorneys working on an appeal to experience great difficulty identifying which jurors were being discussed during any given motion to strike for cause. The identity of the juror cannot often be inferred from the video or audio record. A good practice is to simply preface your motion to strike with a short statement identifying the juror in question, such as “Your honor this motion is in reference to Mr. Smith, juror no. 22.” Then make your objection.
3) Get to the Point - Conduct as thorough a job of questioning as you are allowed to. General questions of fairness and impartiality are not sufficient. Counsel needs to ask specific questions related to the facts of the case and the theory of defense. Attempt to elicit facts known by the juror or opinions held by the juror that reasonably could be expected to influence her decision. “It often takes detailed questioning to uncover deep-seated biases of which the juror may not be aware. The cursory examination typically conducted by the trial court is often inadequate for this purpose.” Trial Practice Series, Jury Selection, The Law, Art, and Science of Selecting a Jury, 2nd ed., James J. Gobert, Walter E. Jordon (1992 Cumulative Supplement, p. 23), quoted in Miracle v. Com., 646 S.W.2d 720, 723 (Ky.1983), (Leibson, J., concurring).
4) Move to Strike - Defense counsel must assert a clear and specific challenge for cause to the prospective juror and must clearly articulate the grounds for the challenge. State the name of the person you are challenging especially if your trial record will be on videotape. Challenge for cause all persons you believe the law requires to be stricken.
List every reason that would require removal of the juror. In some appellate opinions, the courts have assessed the bias of jurors by listing several areas of bias which, when combined, required removal for cause. See Montgomery v. Com., 819 S.W.2d 713 (Ky.1992).
5) Peremptories - You must use all your peremptory challenges and the record must reflect that. Failure to use all of your peremptories waives the right on appeal to object to any jurors who remain on the jury. See, e.g., Baze v. Com., 965 S.W.2d 817 (Ky.1997). However, the prosecution can agree to give up some of its strikes. Fitzgerald v. Com., 148 S.W.3d 817 (Ky.2004).
If you choose to use your peremptory challenges to remove jurors who should have been struck for cause, put into the record that you are doing so, and state by name the jurors you would have used the peremptories on, if you had not had to use them on the jurors who should have been struck for cause. Or write the names on a note and have it entered into the record. Ask for additional peremptory challenges in order to be able to use your peremptories in the way they were intended. This will preserve the issue for review.
6) Strike Sheets - Be sure the juror strike sheets are made part of the record on appeal. RCr 9.36(4), CR 75.07(4).
7) After Trial - When the defendant did not learn until after the trial that a juror was related to, and living in the same rural area of the county with, the complaining witness’s boyfriend, and was married to the boyfriend’s cousin, the proper procedure was to bring this information to the trial court’s attention in a motion for a new trial. Anderson v. Com., 864 S.W.2d 909, 911 (Ky.1993).
EXERCISING PEREMPTORIES
RCr 9.36 (2) provides: “After the parties have been given the opportunity of challenging jurors for cause, each side or party having the right to exercise peremptory challenges shall be handed a list of qualified jurors drawn from the box equal to the number of jurors to be seated plus the number of allowable peremptory challenges for all parties. Peremptory challenges shall be exercised simultaneously by striking names from the list and returning it to the trial judge.”
The Commonwealth can give up peremptory strikes if it looks like the remaining jury pool is getting too small. Fitzgerald v. Com., 148 S.W.3d 817 (Ky.2004). The defendant, however, must use all his peremptories or he waives the issue of any biased jurors sitting on the jury. See, e.g., Baze v. Com., 965 S.W.2d 817 (Ky.1997). Neither side can hold back peremptories to first see who the other side has struck. See Baze v. Com., 965 S.W.2d 817 (Ky.1997).
SWEARING OF THE JURY
Some courts swear the jurors to answer truthfully the questions they will be asked, prior to the beginning of voir dire. According to RCr 9.36(3), however, administering the actual oath of a juror found in KRS 29A.300 comes after the strikes for cause and the peremptory strikes, when the final jury which will try the case is finally sat. KRS 29A.300 says: “The court shall swear the petit jurors using substantially the following oath ‘Do you swear or affirm that you will impartially try the case between the parties and give a true verdict according to the evidence and the law, unless dismissed by the court?’” The swearing of the jury is the moment when double jeopardy protections attach, and the moment after which no further challenges can be made to the composition of the jury.