2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 1 - In General
§ 15-12-134. Challenge of Juror in Civil Case for Desire or Expression of Opinion as to Which Party Should Prevail; Hearing

In all civil cases it shall be good cause of challenge that a juror has expressed an opinion as to which party ought to prevail or that he has a wish or desire as to which shall succeed. Upon challenge made by either party upon either of these grounds, it shall be the duty of the court to hear the competent evidence respecting the challenge as shall be submitted by either party, the juror being a competent witness. The court shall determine the challenge according to the opinion it entertains of the evidence adduced thereon.

(Penal Code 1895, § 855; Penal Code 1910, § 859; Code 1933, § 59-705; Ga. L. 1949, p. 1082, § 2; Ga. L. 1951, p. 214, § 2.)

- Incompetency of person to serve as juror in divorce case for having conscientious scruples as to granting of divorces, § 19-5-9.

- For article comparing sections of the Georgia Civil Practice Act ( § 9-11-1 et seq.) with preexisting provisions of the Georgia Code, see 3 Ga. St. B.J. 295 (1967). For article, "Practitioner's Note Jury Selection: Whose Job Is It, Anyway?," see 23 Ga. St. U.L. Rev. 617 (2007).

ANALYSIS

• General Consideration
• Grounds for Challenge

This section is in no way determinative of question of qualifications of jurors and the jurors' impartiality. Walls v. State, 83 Ga. App. 318, 63 S.E.2d 437 (1951).

- Trial judge should err on the side of caution by dismissing, rather than trying to rehabilitate, biased jurors because the judge is the only person in a courtroom whose primary concern, indeed primary duty, is to ensure the selection of a fair and impartial jury. Walls v. Kim, 250 Ga. App. 259, 549 S.E.2d 797 (2001), aff'd in part and rev'd in part, 275 Ga. 177, 563 S.E.2d 847 (2002).

- There was no manifest abuse in a trial court's decision to forego further inquiry of a juror who said that although the juror was a pastor and believed Christians should not sue one another, the juror would listen to the testimony in the medical malpractice case and decide the case as a juror reviewing the merits and not as a pastor. Clack-Rylee v. Auffarth, 273 Ga. App. 859, 616 S.E.2d 193 (2005).

- Party may avail oneself of challenge to jurors on account of their interest in the case by motion to put jurors on their voir dire. In such case the court may propound questions to each juror or the court may propound them to the entire panel, adopting such plan as will assure a response to each question from each juror. Bryan v. Moncrief Furnace Co., 168 Ga. 825, 149 S.E. 193 (1929).

Either party has a right to request that jurors be put upon their voir dire in order that their competency may be determined. When such request is made, it is the duty of the court to propound, or cause to be propounded, such questions as will test the competency of the jurors to pass upon the issues in the case. Bryan v. Moncrief Furnace Co., 168 Ga. 825, 149 S.E. 193 (1929); Garner v. State, 67 Ga. App. 772, 21 S.E.2d 656 (1942).

- Principal challenge to the poll is based on alleged facts from which the juror is conclusively presumed to be incapacitated to serve. The question principally raised is one of law and is to be decided by the court, but such decision is subject to review. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

- Party is given the right to inquire into any fact or circumstance indicating any inclination, leaning, or bias which the juror might have respecting the subject matter of the suit. Falsetta v. State, 158 Ga. App. 392, 280 S.E.2d 411 (1981).

- Parties should not be required to use the parties' strikes in an effort to remove disqualified jurors. Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969).

- When a challenge is made and improperly overruled but such juror does not serve on the jury trying the case because the juror is stricken by the complaining party, such ruling is not error unless it appears that the party had to exhaust the juror's peremptory challenges in order to get rid of the juror. Ellison v. National By-Products, Inc., 153 Ga. App. 475, 265 S.E.2d 829 (1980).

- If, after the verdict, a juror is attacked as being disqualified by reason of the juror's relationship to the plaintiff, it is essential for the movant and counsel to establish that neither knew of the relationship, nor could the relationship have been discerned by the exercise of ordinary diligence, for if either knew or had reason to suspect the relationship, and remained silent, the movant will be presumed to have waived the disqualification. Jennings v. Autry, 94 Ga. App. 344, 94 S.E.2d 629 (1956).

When a party is furnished with a list of the jury and has reasonable grounds to suspect that one of the jurors is disqualified, the burden is on that party to call attention to that fact and to make further investigation to determine the truth of the situation; failure to exercise due diligence waives the disqualification. Sancken Assocs. v. Stokes, 119 Ga. App. 282, 166 S.E.2d 924 (1969).

Acceptance of juror with knowledge of any alleged disqualification is waiver of such disqualification. Sanders v. State, 246 Ga. 42, 268 S.E.2d 628 (1980).

- If a judge did not conduct an adequate voir dire and should have excused a juror for cause under O.C.G.A. § 15-12-134, a successor judge properly granted a new trial. Bennett v. Mullally, 263 Ga. App. 215, 587 S.E.2d 385 (2003), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640, 2018 Ga. LEXIS 685 (2018).

- In a negligence suit involving the death of an individual in an automobile collision, a trial court did not abuse the court's discretion in rehabilitating three biased jurors as the record showed, while each of the three jurors expressed an initial distrust of corporations in general, the three jurors all unequivocally stated that the three jurors did not have a particular bias against the auto manufacturer or the hitch manufacturer, who were parties in the litigation, and could decide the issues in the case based solely on the evidence presented and the charge given by the court. Ford Motor Co. v. Gibson, 283 Ga. 398, 659 S.E.2d 346 (2008).

Cited in Hilton & Dodge Lumber Co. v. Ingram, 135 Ga. 696, 70 S.E. 234 (1911); Lundy v. Livingston, 11 Ga. App. 804, 76 S.E. 594 (1912); Sheffield v. Sheffield, 150 Ga. 440, 104 S.E. 213 (1920); Padgett v. Padgett, 63 Ga. App. 70, 10 S.E.2d 127 (1940); Gossett v. State, 203 Ga. 692, 48 S.E.2d 71 (1948); Lewis v. Williams, 78 Ga. App. 494, 51 S.E.2d 532 (1949); Adler v. Adler, 207 Ga. 394, 61 S.E.2d 824 (1950); Dyer v. State, 86 Ga. App. 835, 72 S.E.2d 781 (1952); Bland v. State, 210 Ga. 100, 78 S.E.2d 51 (1953); Stevens v. Wright Contracting Co., 92 Ga. App. 373, 88 S.E.2d 511 (1955); Hooks v. State, 215 Ga. 869, 114 S.E.2d 6 (1960); Whaley v. Sim Grady Mach. Co., 107 Ga. App. 96, 129 S.E.2d 362 (1962); Britten v. State, 221 Ga. 97, 143 S.E.2d 176 (1965); Roach v. State, 221 Ga. 783, 147 S.E.2d 299 (1966); Harris v. State, 120 Ga. App. 359, 170 S.E.2d 743 (1969); Hodges v. Carpenter, 127 Ga. App. 358, 193 S.E.2d 199 (1972); Durham v. State, 129 Ga. App. 5, 198 S.E.2d 387 (1973); Shouse v. State, 231 Ga. 716, 203 S.E.2d 537 (1974); Hinson v. DOT, 135 Ga. App. 258, 217 S.E.2d 606 (1975); Hall v. State, 135 Ga. App. 690, 218 S.E.2d 687 (1975); Akin v. Patton, 235 Ga. 51, 218 S.E.2d 802 (1975); Head v. State, 235 Ga. 677, 221 S.E.2d 435 (1975); Holloway v. State, 137 Ga. App. 124, 222 S.E.2d 898 (1975); Johnson v. Jackson, 140 Ga. App. 252, 230 S.E.2d 756 (1976); Robinson v. State, 238 Ga. 291, 232 S.E.2d 561 (1977); Mitchell v. State, 239 Ga. 456, 238 S.E.2d 100 (1977); Lamb v. State, 241 Ga. 10, 243 S.E.2d 59 (1978); Firestone Tire & Rubber Co. v. King, 145 Ga. App. 840, 244 S.E.2d 905 (1978); Pierce v. Altman, 147 Ga. App. 22, 248 S.E.2d 34 (1978); Smith v. State, 148 Ga. App. 1, 251 S.E.2d 13 (1978); Wallace v. State, 248 Ga. 255, 282 S.E.2d 325 (1981); Deering v. State, 168 Ga. App. 835, 310 S.E.2d 720 (1983).

Grounds for Challenge

Disqualification for favor.

- Challenge to favor is based on circumstances raising a suspicion of the existence of actual bias in the mind of the juror for or against the party, as for undue influence, or prejudice, which essentially raises a question of fact that is decided by the court, and the court's decision on a challenge to favor is final and conclusive as to the credibility of the proof. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

O.C.G.A. § 15-12-134 deals with scope of voir dire but does not set forth test for disqualification for favor. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

Challenges for favor are based on admissions of juror or facts and circumstances raising suspicion that juror is actually biased for or against one of the parties. Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981).

Juror should come to consideration of case unaffected by any previous judgment or opinion, as to any material fact in the issue to be tried, relating to the parties, the subject matter, or the credibility of the witnesses in the particular case to be tried. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

- Jurors should come to the consideration of a case free from even a suspicion of prejudgment or a fixed opinion upon any material fact in the issue to be tried as to the parties, the subject-matter, or the credibility of the witnesses. Edwards v. Griner, 42 Ga. App. 282, 155 S.E. 789 (1930).

Doubt existing in juror's mind will disqualify juror. McLaren v. Birdsong & Sledge, 24 Ga. 265 (1858).

- Fact that juror may be qualified under usual voir dire questions is not necessarily sufficient test of juror's impartiality. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

- If the juror states that the juror will retain the juror's opinion through the trial unless the evidence should prove that the juror is wrong as to the juror's opinion, the trial court errs in failing to disqualify the juror for cause upon motion duly made by counsel for the defendant. Bowens v. State, 116 Ga. App. 577, 158 S.E.2d 420 (1967).

- Pursuant to O.C.G.A. § 15-12-134 and Ga. Const. 1983, Art. I, Sec. 1, Para. XI(a), a trial court erred in failing to either grant a challenge for cause or to effectively rehabilitate two jurors who expressed a clear preference for opposing counsel because both were or had been clients of opposing counsel. Harper v. Barge Air Conditioning, Inc., 313 Ga. App. 474, 722 S.E.2d 84 (2011).

- To disqualify one from being a juror in a criminal case, one must have formed and expressed an opinion, either from having seen the crime committed, or from having heard the testimony under oath. One who from some other cause has formed and expressed an opinion that is not fixed and determined, and who indicates one's competency by answering the statutory questions on voir dire, is not an incompetent juror. Johnson v. State, 209 Ga. 333, 72 S.E.2d 291 (1952); Griffeth v. State, 154 Ga. App. 643, 269 S.E.2d 501 (1980).

- When a juror responds to a voir dire question and by the answer indicates that the juror may be so prejudiced by certain anticipated evidence that the juror cannot render a fair verdict as to the cause of the accident in question, the juror should be excused for cause. Jones v. Cloud, 119 Ga. App. 697, 168 S.E.2d 598 (1969).

- In a suit for damages by a widow for the homicide of her husband, it was alleged that the deceased was unlawfully shot to death by the defendant, who at a previous term of the court, had been acquitted of the offense of murdering the plaintiff's husband, and that the suit for damages and the previous indictment and trial for murder were based upon the same transaction and facts, any person who sat as a juror in the murder case was disqualified from serving as a juror in the civil case. Edwards v. Griner, 42 Ga. App. 282, 155 S.E. 789 (1930).

- Since policy holders of some insurance companies are "interested" in the profits of the company, when a defendant was admittedly covered by liability insurance and it was admitted that the company's stockholders, employees, and their relatives were properly purged from the prospective jurors, it was not error to seek to purge prospective jurors who were policy holders in the absence of a showing that no policies were issued by the particular company which would create such interest in its policy holders. Williams v. Lane, 103 Ga. App. 150, 118 S.E.2d 730 (1961).

- It is proper to qualify jurors with reference to their relationship to an insurance company having a financial interest in the outcome of litigation. Proper practice in qualifying the jury would be to confine the inquiry as to the relationship of the jurors to the particular company or companies having a financial interest in the result of the litigation. Leggett v. Brewton, 104 Ga. App. 580, 122 S.E.2d 469 (1961).

Relationship of juror to party creates pecuniary interest. Howell v. Howell, 59 Ga. 145 (1877); Melson v. Dickson, 63 Ga. 682, 36 Am. R. 128 (1879).

- In a premises liability case, the trial court did not err in refusing to excuse a juror for cause because the juror was acquainted with a defense witness, who worked at the dealership where the juror's car was frequently serviced and who sent the juror a card when the juror's child was born; the juror's statement that the juror was not absolutely certain how the juror's relationship with the witness would affect the juror's judgment did not demand as a matter of law that the juror be excused for cause, and plaintiffs did not show that the juror could not decide the case based on the evidence and the trial court's instructions. Abdelaal v. Greens at Windy Hill, L.P., 285 Ga. App. 367, 646 S.E.2d 474 (2007).

- When during the examination of prospective jurors one juror fails to inform counsel for the defendant, after being asked, that the juror has been represented by counsel for the plaintiffs and after the verdict so informs the trial court, it is obvious that the juror, who was asked the question along with the rest of the panel, was under a duty to speak and that the failure to answer is tantamount to an oral response that the juror has never been represented by counsel for the plaintiff. Accordingly, a new trial must be granted. Glover v. Maddox, 100 Ga. App. 262, 111 S.E.2d 164 (1959).

- In a wrongful death action against defendant physician, the trial judge abused the judge's judicial discretion in refusing to dismiss for cause a juror who was a nurse who worked in emergency rooms with the defendant and who indicated a hope that the case would come out in favor of the defendant. Walls v. Kim, 250 Ga. App. 259, 549 S.E.2d 797 (2001), aff'd in part and rev'd in part, 275 Ga. 177, 563 S.E.2d 847 (2002).

- In an action for personal injuries, if it appears that the defendant is protected by a trade association against liability for injuries such as were sued for, it is not error for the court, in examining prospective jurors on their voir dire, to inquire whether any juror is an employee of the association, or related to stockholders thereof. Atlanta Coca-Cola Bottling Co. v. Shipp, 41 Ga. App. 705, 154 S.E. 385 (1930).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, § 248 et seq.

- 50A C.J.S., Juries, §§ 370, 390 et seq.

- Betting on result as disqualifying juror, 2 A.L.R. 813.

Relationship to prosecutor or witness for prosecution as disqualifying juror in criminal case, 18 A.L.R. 375.

Failure to understand or unwillingness to accept presumption of innocence or rule as to reasonable doubt as rendering juror incompetent, 40 A.L.R. 612.

Right to introduce extrinsic evidence in support of challenge to juror for cause, 65 A.L.R. 1056.

Challenge of proposed juror for implied bias or interest because of relationship to one who would be subject to challenge for that reason, 86 A.L.R. 118.

Prospective juror's connection with insurance company as ground of challenge for cause in action for personal injuries or damage to property, 103 A.L.R. 511.

Disqualification of judge who presided at trial or of juror as ground of habeas corpus, 124 A.L.R. 1079.

Statements or intimation by member of jury that defendant is covered by insurance or for other reason would not bear the real burden of an adverse verdict, 138 A.L.R. 464.

Competency of juror as affected by his participation in a case of similar character, but not involving the party making the objection, 160 A.L.R. 753.

Effect of, and remedies for, exclusion of eligible class of persons from jury list in civil case, 166 A.L.R. 1422.

Admissibility, in civil case, of juror's affidavit or testimony to show bias, prejudice, or disqualification of a juror not disclosed on voir dire examination, 48 A.L.R.2d 971.

Prejudicial effect, in civil case, of communications between witnesses and jurors, 52 A.L.R.2d 182.

Contact or communication between juror and party or counsel during trial of civil case as ground for mistrial, new trial, or reversal, 62 A.L.R.2d 298.

Juror's previous knowledge of facts of civil case as disqualification, 73 A.L.R.2d 1312.

Disclosure in criminal case of juror's political, racial, religious, or national origin prejudice against accused or witnesses as ground for new trial or reversal, 91 A.L.R.2d 1120.

Claustrophobia or other neurosis of juror as subject of inquiry on voir dire or of disqualification of juror, 20 A.L.R.3d 1420.

Jury: membership in racially biased or prejudiced organization as proper subject of voir dire inquiry or ground for challenge, 63 A.L.R.3d 1052.

Similarity of occupation between proposed juror and alleged victim of crime as affecting juror's competency, 71 A.L.R.3d 974.

Racial or ethnic prejudice of prospective jurors as proper subject of inquiry or ground of challenge on voir dire in state criminal case, 94 A.L.R.3d 15.

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.

Communications between court officials or attendants and jurors in criminal trial as ground for mistrial or reversal - Post-Parker cases, 35 A.L.R.4th 890.

Professional or business relations between proposed juror and attorney as ground for challenge for cause, 52 A.L.R.4th 964.

Prospective juror's connection with insurance company as ground for challenge for cause, 9 A.L.R.5th 102.

Prejudicial effect, in civil case, of communications between court officials or attendants and jurors, 31 A.L.R.5th 572.