2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 2 - Juries in Felony Cases
§ 15-12-160.1. Impanelling Jurors for Criminal Trials; Choosing and Summoning Prospective Jurors if Necessary to Fill Panel

On and after July 1, 2012, when any person stands indicted for a felony, the court shall have impaneled 30 jurors from which the defense and prosecution may strike jurors; provided, however, that in any case in which the state announces its intention to seek the death penalty, the court shall have impaneled 42 jurors from which the defense and state may strike jurors. If, for any reason, after striking from the panel there remain fewer than 12 qualified jurors to try the case, the clerk shall choose and cause to be summoned such numbers of persons who are competent prospective jurors as may be necessary to provide a full panel or successive panels. In making up the panel or successive panels, the clerk shall choose the names of prospective trial jurors in the same manner as prospective trial jurors are chosen and cause such persons to be summoned.

(Code 1981, §15-12-160.1, enacted by Ga. L. 2011, p. 59, § 1-56/HB 415.)

- 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.'"

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1855-56, p. 229, § 3; Code 1863, § 4564; Code 1868, § 4584; Code 1873, §§ 3935, 4678; Ga. L. 1880-81, p. 120, § 1; Code 1882, §§ 3935, 4678; Penal Code 1895, §§ 858, 859, 970; Penal Code 1910, §§ 862, 863, 996; Code 1933, § 59-801; and former O.C.G.A. § 15-12-160 are included in the annotations for this Code section.

- Application of the 1992 amendment to former O.C.G.A. § 15-12-160 requiring the court to have 30, rather than 42, impaneled jurors from which the defense and prosecution may strike jurors did not violate the constitutional prohibition against ex post facto laws. Shuler v. State, 213 Ga. App. 790, 446 S.E.2d 225 (1994) (decided under former O.C.G.A. § 15-12-160).

- Trial court's decision to proceed with a panel of only 38 prospective jurors upon the agreement of the prosecutor to reduce the state's number of peremptory strikes but over the objection of the defendant was error, but if the defendant did not make a written challenge and did not exhaust defendant's peremptory strikes, the error was harmless. Bankston v. State, 169 Ga. App. 955, 315 S.E.2d 671 (1984) (decided under former O.C.G.A. § 15-12-160 and prior to 1992 amendment decreasing the number of jurors to be impaneled).

- If the panel does not contain the requisite number of jurors, the sole remedy of the defendant is a challenge to the array and no other method of complaint as to the deficiency is open. Lysfjord v. State, 208 Ga. App. 811, 432 S.E.2d 247 (1993) (decided under former O.C.G.A. § 15-12-160).

- Joint murder trial of two defendants does not entitle the defendants to a panel of 96 (now 60) jurors from which to strike. Lynn v. State, 140 Ga. 387, 79 S.E. 29 (1913) (decided under former Penal Code 1910, §§ 862, 863, and 996).

Defendant was not entitled to 42 jurors in the array rather than 30 jurors as now provided; the right to additional jurors is not a substantive right and the defendant's challenge to the array was not in writing. Landrum v. State, 210 Ga. App. 275, 436 S.E.2d 40 (1993) (decided under former O.C.G.A. § 15-12-160).

Power of court to order in successive panels is unlimited. Cruce v. State, 59 Ga. 83 (1877) (decided under former Code 1873, §§ 3935 and 4678).

- Trial court did not err in using two panels to complete the jury when 30 jurors were impaneled, from that 30, 11 were chosen for the trial, and, subsequently, defense counsel was allowed to voir dire a second panel to complete the jury. Thomas v. State, 249 Ga. App. 571, 549 S.E.2d 408 (2001) (decided under former O.C.G.A. § 15-12-160).

- Judge cannot direct the judge's clerk to include in the panel jurors who had served during the preceding week if such persons had not been either drawn by the judge or summoned by the sheriff. Bridges v. State, 103 Ga. 21, 29 S.E. 859 (1897) (decided under former Penal Code 1895, §§ 3935 and 4678).

- Trial court did not err by denying a defendant's request to shuffle the jury venire as nothing under Georgia law required the trial court to shuffle the jury venire. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006) (decided under former O.C.G.A. § 15-12-160).

Many qualified persons may be summoned in advance to attend, so that tales jurors may be obtained with convenience. Cobb v. State, 27 Ga. 648 (1859) (decided under Ga. L. 1855-56, p. 229, § 3).

- Forty-eight (now 30) names shall be drawn to try felony cases, but if some of the jurors drawn are engaged, additional jurors may be drawn from the box, or tales jurors may be summoned. Kelly v. State, 14 Ga. App. 20, 80 S.E. 24 (1913) (decided under former Penal Code 1910, §§ 862, 863, and 996).

Jurors should not be drawn from grand jury box. Pollard v. State, 148 Ga. 447, 96 S.E. 997 (1918) (decided under former Penal Code 1910, §§ 862, 863, and 996).

- When no violation of O.C.G.A. § 15-12-1, restricting exemptions from jury service, was shown and when the jury panels which were put upon the accused contained substantially more veniremen than required by former O.C.G.A. § 15-12-160, there was no denial of a fair trial despite the trial court's general policy of excusing veniremen upon request. Hall v. State, 254 Ga. 272, 328 S.E.2d 719 (1985) (decided under former OC.G.A. § 15-12-160).

- Entitlement of a party extends only to a fair and impartial jury and includes the right to reject, not select. Rucker v. State, 135 Ga. App. 468, 218 S.E.2d 146 (1975), overruled on other grounds, Keaton v. State, 253 Ga. 70, 316 S.E.2d 452 (1984) (decided under former Code 1933, § 59-801).

- In felony cases, the question of the competency and impartiality of jurors is to be determined after the process of selecting the jury has been commenced. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 S.E. 131 (1934); Gossett v. State, 203 Ga. 692, 48 S.E.2d 71 (1948), appeal dismissed, 214 Ga. 840, 108 S.E.2d 272 (1959) (decided under former Code 1933, § 59-801).

In felony case, it is not error for the court to refuse a motion to purge the jury as to disqualification before beginning to select a jury for trial, the statutes on the subject as applied to felony cases being different from those in reference to civil and misdemeanor cases. Gossett v. State, 203 Ga. 692, 48 S.E.2d 71 (1948), appeal dismissed, 214 Ga. 840, 108 S.E.2d 272 (1959) (decided under former Code 1933, § 59-801).

Waiver of right to full panel occurs if prisoner fails to challenge array, but proceeds with the selection of the jury. Ivey v. State, 4 Ga. App. 828, 62 S.E. 565 (1908) (decided under former Penal Code 1895, §§ 858, 859, and 970).

- It is disqualification of juror, not refusal to make inquiry, which vitiates trial. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 S.E. 131 (1934) (decided under former Code 1933, § 59-801).

- Defendant in a felony case is not required to have made investigations out-of-court to determine whether the jurors are disqualified. Atlanta Coach Co. v. Cobb, 178 Ga. 544, 174 S.E. 131 (1934) (decided under former O.C.G.A. § 15-12-160).

- If the sheriff, without the knowledge and consent of the movants, selected as jurors certain persons whose names were not drawn from the jury box as required, such a point cannot be successfully raised for the first time after the verdict. Thomasson v. Hudmon, 185 Ga. 753, 196 S.E. 462 (1938) (decided under former Code 1933, § 59-801).

- Juror, having deficiency propter defectum, may be rendered specially competent by failure of the parties to challenge. Lindsey v. State, 57 Ga. App. 158, 194 S.E. 833 (1938) (decided under former O.C.G.A. § 15-12-160).

- Claim that a juror was absent from jury selection was not supported by the record, and, to the extent the defendant failed to object to the absence, if any, of the juror and failed to file a written challenge to the array, this claim was waived, under O.C.G.A. § 15-12-162, and there was no error, under former O.C.G.A. § 15-12-160, as the record showed without dispute that the defendant was not denied a full panel of 30 qualified jurors from which 12 jurors were selected. Nelson v. State, 278 Ga. App. 548, 629 S.E.2d 410 (2006) (decided under former OC.G.A. § 15-12-160).

- If the exercise of due diligence would have enabled the accused and the accused's counsel to discover before the juror was accepted and sworn that the juror was one of the grand jurors who found the indictment against the defendant, the objection to the juror came too late, and the court did not err in overruling the motion for a new trial. Boatright v. State, 51 Ga. App. 80, 179 S.E. 740 (1935) (decided under former O.C.G.A. § 15-12-160).

Juror may be excused for business reasons if there are more present than needed to make a selection. Ellis v. State, 114 Ga. 36, 39 S.E. 881 (1901) (decided under former Penal Code 1895, §§ 858, 859 and 970).

- There is no error in excluding the jurors who state they would not impose the death penalty under any circumstances. Willis v. State, 243 Ga. 185, 253 S.E.2d 70, cert. denied, 444 U.S. 885, 100 S. Ct. 178, 62 L. Ed. 2d 116 (1979) (decided under former O.C.G.A. § 15-12-160).

- If a juror is on the original panel of 48 (now 30) jurors placed on the defendant, or on any successive panel, and the juror's name is stricken and another juror placed thereon in the juror's stead, an objection may be made to the panel if the stricken juror is returned to the panel. Clifton v. State, 187 Ga. 502, 2 S.E.2d 102 (1939) (decided under former Code 1933, § 59-801).

- There is no requirement that the trial court summon additional prospective jurors in panels of 12, if there remain less than 12 qualified jurors after striking. Dale v. State, 198 Ga. App. 479, 402 S.E.2d 90 (1991) (decided under former O.C.G.A. § 15-12-160).

Cited in Williams v. State, 116 Ga. 525, 42 S.E. 745 (1902) (decided under former Penal Code 1895, §§ 858, 859, 970); Whitworth v. State, 155 Ga. 395, 117 S.E. 450 (1923); Bennett v. State, 67 Ga. App. 384, 20 S.E.2d 193 (1942) (decided under former Penal Code 1910, §§ 862, 863, 996); Reece v. State, 208 Ga. 165, 66 S.E.2d 133 (1951); Summerour v. State, 85 Ga. App. 94, 68 S.E.2d 158 (1951) (decided under former Code 1933, § 59-801); Britten v. State, 221 Ga. 97, 143 S.E.2d 176 (1965); Roach v. State, 221 Ga. 783, 147 S.E.2d 299 (1966) (decided under former Code 1933, § 59-801); Whippler v. Dutton, 391 F.2d 425 (5th Cir. 1968); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973) (decided under former Code 1933, § 59-801); Blankenship v. State, 247 Ga. 590, 280 S.E.2d 623 (1981); Terry v. State, 160 Ga. App. 433, 287 S.E.2d 360 (1981) (decided under former Code 1933, § 59-801); Thompkins v. State, 181 Ga. App. 158, 351 S.E.2d 475 (1986); Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992) (decided under former Code 1933, § 59-801); Cannon v. State, 250 Ga. App. 777, 552 S.E.2d 922 (2001), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018);(decided under former Code 1933, § 59-801);(decided under former Code 1933, § 59-801);(decided under former Code 1933, § 59-801);(decided under former O.C.G.A. § 15-12-160);(decided under former Code 1933, § 59-801);(decided under former O.C.G.A. § 15-12-160);(decided under former O.C.G.A. § 15-12-160).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, § 188.

- 50A C.J.S., Juries, §§ 256, 257, 366.

- Right to consent to trial of criminal case before less than twelve jurors; and effect of consent upon jurisdiction of court to proceed with less than twelve, 70 A.L.R. 279; 105 A.L.R. 1114.

Power of court to exclude from panel or venire for particular case all persons belonging to a class membership in which may be supposed to involve bias or prejudice, 105 A.L.R. 1527.

Validity and effect of plan or practice of consulting preferences of persons eligible for jury service as regards periods or times of service or character of actions, 112 A.L.R. 995.

Membership in secret order or organization for the suppression of crime as proper subject of examination, or ground of challenge, of juror, 158 A.L.R. 1361.