2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 1 - In General
§ 15-12-125. Demand of Jury Panels for Misdemeanor Trials

For the trial of misdemeanors in all courts, each party may demand a full panel of 12 competent and impartial jurors from which to select a jury. When one or more of the regular panel of trial jurors is absent or for any reason disqualified, the judge, at the request of counsel for either party, shall cause the panel to be filled by additional competent and impartial jurors to the number of 12 before requiring the parties or their counsel to strike a jury. From this panel, the accused and the state shall each have the right to challenge three jurors peremptorily. The accused and the state shall exercise their challenges as provided in Code Section 15-12-166. The remaining six jurors shall constitute the jury.

(Laws 1836, Cobb's 1851 Digest, p. 842; Code 1863, § 4531; Code 1868, § 4550; Ga. L. 1869, p. 139, § 6; Code 1873, § 3934; Code 1882, §§ 3934, 4644; Penal Code 1895, § 857; Penal Code 1910, § 861; Code 1933, § 59-707; Ga. L. 1985, p. 1511, § 6; Ga. L. 1995, p. 1292, § 9; Ga. L. 2005, p. 20, § 4/HB 170; Ga. L. 2011, p. 59, § 1-43/HB 415.)

- Ga. L. 2005, p. 20, § 1/HB 170, not codified by the General Assembly, provides that: "This act shall be known and may be cited as the 'Criminal Justice Act of 2005.'"

Ga. L. 2005, p. 20, § 17/HB 170, not codified by the General Assembly, provides that the amendment to this Code section shall be applicable to all trials which commence on or after July 1, 2005.

Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

- For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 29 (2005).

JUDICIAL DECISIONS

Constitutionality of prior provisions.

- Enactment of O.C.G.A. § 15-12-125 does not require that prior legislative enactments of varying allocations of peremptory strikes be held as constitutionally defective. Hawkins v. State, 255 Ga. 172, 336 S.E.2d 220 (1985).

- Defendant's right to be tried by a 12-member jury for an offense committed prior to the effective date of the 1985 amendment to O.C.G.A. § 15-12-125 was a substantial right which could not be set aside ex post facto. Campbell v. State, 178 Ga. App. 814, 344 S.E.2d 745 (1986).

This section applies exclusively to superior courts. Welborne v. Donaldson, 115 Ga. 563, 41 S.E. 999 (1902).

- Argument of a defendant convicted of sexual battery that O.C.G.A. § 15-12-125 is inapplicable to those cases in which the accused is on trial for a misdemeanor of a "high and aggravating nature" fails given the plain language of the statute. For such an argument to succeed, such limitation would have to be apparent from the face of the statute. Tharpe v. State, 207 Ga. App. 900, 429 S.E.2d 342 (1993).

Peremptory challenge is an arbitrary or capricious species of challenge to a certain number of jurors allowed to the parties without the necessity of their showing any cause therefor. In the very nature of such a challenge no reason need be shown or assigned for the exercise of the right. Crawford v. State, 159 Ga. App. 278, 283 S.E.2d 300 (1981).

Practice of striking from list is legal equivalent of challenging. O'Byrne v. State, 29 Ga. 36 (1859); Smith v. State, 11 Ga. App. 89, 74 S.E. 711 (1912).

- If two persons are jointly indicted in a misdemeanor case, each is entitled to the same number of peremptory challenges as the person would have if tried separately. Nobles v. State, 12 Ga. App. 355, 77 S.E. 184 (1913).

Striking should be alternating with defendant beginning and ending the strikes. Kelly v. State, 19 Ga. 425 (1856).

To test fairness of juror, counsel may ask the juror questions prescribed for use in trial of felonies, or such questions as will determine the juror's impartiality. Jacobs v. State, 1 Ga. App. 519, 57 S.E. 1063 (1907).

- Jury should be restruck if juror fails to answer to the juror's name. Clifton v. State, 53 Ga. 241 (1874); Garrison v. State, 97 Ga. 215, 22 S.E. 378 (1895).

Cited in Lamb v. State, 73 Ga. 587 (1884); McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5 (1940); Reid v. State, 129 Ga. App. 657, 200 S.E.2d 454 (1973); McSears v. State, 247 Ga. 48, 273 S.E.2d 847 (1981); Foster v. State, 258 Ga. App. 601, 574 S.E.2d 843 (2002); Stolte v. Fagan, 291 Ga. 477, 731 S.E.2d 653 (2012), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018).

RESEARCH REFERENCES

Am. Jur. 2d.

- 21A Am. Jur. 2d., Criminal Law, §§ 978, 979.

- 50A C.J.S., Juries, §§ 130, 256 et seq., 328 et seq.

- Right to peremptory challenges in selection of jury to try issue of former conviction, 162 A.L.R. 429.

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 A.L.R.2d 1291.

Peremptory challenge after acceptance of juror, 3 A.L.R.2d 499.

Effect of allowing excessive number of peremptory challenges, 95 A.L.R.2d 957.

Prior service on grand jury which considered indictment against accused as disqualification for service on petit jury, 24 A.L.R.3d 1236.

Religious belief, affiliation, or prejudice of prospective jurors as proper subject of inquiry or grounds for challenge on voir dire, 95 A.L.R.3d 172.

Additional peremptory challenges because of multiple criminal charges, 5 A.L.R.4th 533.

Validity and construction of statute or court rule prescribing number of peremptory challenges in criminal cases according to nature of offense or extent of punishment, 8 A.L.R.4th 149.

Cure of prejudice resulting from statement by prospective juror during voir dire, in presence of other prospective jurors, as to defendant's guilt, 50 A.L.R.4th 969.