2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 2 - Juries in Felony Cases
§ 15-12-165. Number of Peremptory Challenges

Universal Citation: GA Code § 15-12-165 (2020)

Every person accused of a felony may peremptorily challenge nine of the jurors impaneled to try him or her. The state shall be allowed the same number of peremptory challenges allowed to the accused; provided, however, that in any case in which the state announces its intention to seek the death penalty, the accused may peremptorily challenge 15 jurors and the state shall be allowed the same number of peremptory challenges.

(Laws 1833, Cobb's 1851 Digest, p. 835; Code 1863, § 4530; Code 1868, § 4549; Code 1873, § 4643; Code 1882, § 4643; Penal Code 1895, § 974; Penal Code 1910, § 1000; Code 1933, § 59-805; Ga. L. 1992, p. 1981, § 2; Ga. L. 2005, p. 20, § 7/HB 170; Ga. L. 2011, p. 59, § 1-59/HB 415.)

Cross references.

- Number of strikes allowed to defendants jointly indicted and tried for capital offense, § 17-8-4.

Editor's notes.

- 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.'"

Law reviews.

- For article on 2005 amendment of this Code section, see 22 Ga. St. U.L. Rev. 29 (2005). For annual survey of death penalty decisions, see 57 Mercer L. Rev. 139 (2005); 58 Mercer L. Rev. 111 (2006). For note, "Toward an Integrated Rule Prohibiting All Race-Based Peremptory Challenges: Some Considerations on Georgia v. McCollum," see 26 Ga. L. Rev. 503 (1992). For comment on Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), see 31 Mercer L. Rev. 349 (1979).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Number
  • Excusal for Cause

General Consideration

Constitutionality.

- Law provides a remedy for jurors who are struck for illegal reasons by the defense so O.C.G.A. § 15-12-165 is not unconstitutional; an order of a trial court finding otherwise was reversed. Robinson v. State, 278 Ga. 134, 598 S.E.2d 466 (2004).

Constitutionality of application of amendment reducing number of challenges.

- Application to the defendant of the statutory amendment reducing the number of criminal defendant's peremptory strikes did not violate the constitutional prohibition against ex post facto laws. Stargel v. State, 210 Ga. App. 619, 436 S.E.2d 786 (1993).

Retroactive application valid.

- Retroactive application of the amended reduction of the number of peremptory strikes from 20 to 12 did not violate the ex post facto clause as the number of peremptory challenges is solely a matter of procedure. Seats v. State, 210 Ga. App. 74, 435 S.E.2d 286 (1993).

Peremptory challenge is arbitrary and capricious species of challenge to certain number of jurors without showing any cause. Watkins v. State, 199 Ga. 81, 33 S.E.2d 325 (1945); Hobbs v. State, 229 Ga. 556, 192 S.E.2d 903 (1972); Pippin v. State, 151 Ga. App. 225, 259 S.E.2d 488 (1979).

No reason need be shown for exercise of right to peremptory challenge. 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); Pippin v. State, 151 Ga. App. 225, 259 S.E.2d 488 (1979).

Peremptory challenges may be exercised by either the state or the accused without giving any reason therefor; and exercising this statutory right in any particular way is not cause for a mistrial. Plummer v. State, 229 Ga. 749, 194 S.E.2d 419 (1972).

Sheriff's excusal of jurors violates defendant's rights.

- Excusal of five prospective jurors by the sheriff as the chief law enforcement officer in the county and as a direct participant in the trial was a violation of the integrity of the jury selection process, and constitutes an alteration of the array of traverse jurors to such an extent as to deprive the defendant of the defendant's proportional share of peremptory strikes. Joyner v. State, 251 Ga. 84, 303 S.E.2d 106 (1983).

District attorney may use peremptory challenges in the attorney's discretion. 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).

Juror peremptorily stricken may be used later.

- If a juror is impaneled to try a defendant for a criminal offense and is peremptorily challenged by the defendant, the juror is not so disqualified that the juror cannot again be impaneled at a subsequent trial for the same offense under the same indictment on the grounds that the defendant would thereby be deprived of the defendant's full 20 (now 12) strikes, or because it would deny to the defendant the constitutional right of a fair and impartial trial and equal protection of the laws. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944).

Returning veniremen peremptorily excused earlier to juror pool.

- Defendants were not deprived of their proportional share of peremptory strikes even though veniremen who were peremptorily excused by the prosecutor in a previous trial were returned to the panel of prospective jurors for defendants' trial. If anything, by returning to the jury pool veniremen already once rejected by the prosecutor, the practice discriminated against the prosecutor by forcing the prosecutor to choose from among veniremen the prosecutor had already challenged. Davis v. State, 194 Ga. App. 482, 391 S.E.2d 124 (1990).

If first panel of jurors is exhausted, striking of jurors cannot proceed until second full panel of jurors has been completed. Cady v. State, 198 Ga. 99, 31 S.E.2d 38, appeal dismissed and cert. denied, 323 U.S. 676, 65 S. Ct. 190, 89 L. Ed. 549 (1944).

Presumption that challenges used properly.

- Presumption is that prosecutor is using state's challenges to obtain fair, impartial jury to try the case. The presumption is not overcome and the prosecutor therefore subjected to examination by allegations that all blacks were removed from the jury or that they were removed because they were blacks. Jackson v. Hopper, 232 Ga. 419, 207 S.E.2d 58 (1974).

Race-neutral reasons for peremptory strikes.

- State supreme court upheld trial court's judgment granting prosecutor's motions to strike two prospective jurors who were the same race as defendant on the basis of the prosecutor's rationale that one juror was inattentive and uninterested in the process and appeared to be frustrated with the answers given by another prospective juror, and that the other juror slept constantly during voir dire and had a son who was pending prosecution. Trigger v. State, 275 Ga. 512, 570 S.E.2d 323 (2002), overruled on other grounds, Wilson v. State, 277 Ga. 195, 586 S.E.2d 669 (2003).

Defendant failed to show that the trial court erred in finding that the defendant's race-neutral explanation for peremptorily striking a venireperson was pretextual; moreover, the defendant could not complain of the trial court's remedy, which was to remove the last juror chosen, make that juror the first alternate, and place the venireperson in question on the jury because the defendant had expressly agreed with it. Stokes v. State, 281 Ga. 825, 642 S.E.2d 82 (2007), overruled on other grounds by State v. Lane, 2020 Ga. LEXIS 98 (Ga. 2020).

Striking all blacks not, per se, unconstitutional.

- Peremptory striking of all black prospective jurors in a case is not per se a denial of equal protection, but the presumption protecting the prosecutor may well be overcome by proof of systematic exclusion of black jurors by use of peremptory challenges by the district attorney resulting in no blacks ever serving on petit juries in that circuit. Blackwell v. State, 248 Ga. 138, 281 S.E.2d 599 (1981).

Race neutral reason for striking jurors not provided.

- Trial court clearly erred in accepting the state's explanations for striking four of the five African-American male jurors as race-neutral since: (1) the first juror was stricken for having an unstable job history, which was not supported by the record; (2) the second juror was stricken for wearing an earring, without an explanation as to how this affected the juror's ability to be impartial, and a caucasian juror wearing an earring was accepted; (3) the state mischaracterized the third juror's testimony that the juror intended to go to Panama City to have a good time, when the juror testified that the juror was going on a family vacation before returning to college; and (4) the fourth juror was stricken to reach other jurors, which could not defeat a Batson claim. George v. State, 263 Ga. App. 541, 588 S.E.2d 312 (2003).

Time for raising claim of racial discrimination.

- Since the record reflected that following voir dire, the jury was selected, sworn, given preliminary instructions by the trial court, and excused for lunch; and, following the recess and a lengthy hearing on an unrelated defense motion, the defendant moved for a mistrial, claiming that defendant's constitutional rights had been violated by the prosecutor's use of peremptory challenges to exclude blacks from the jury panel, since there were no judicial guidelines regarding the time and manner in which such a claim was to be presented, and since the defendant's motion in this regard was made relatively promptly in the course of the proceedings, the motion was timely made for purposes of that case. Hereafter, however, any claim under Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 2d 69 (1986), will have to be raised prior to the time the jurors selected to try the case were sworn. State v. Sparks, 257 Ga. 97, 355 S.E.2d 658 (1987).

Peremptory challenges by criminal defendant.

- Constitution prohibits a criminal defendant from engaging in purposeful discrimination on the ground of race in the exercise of peremptory challenges. Accordingly, if the state demonstrates a prima facie case of racial discrimination by the defendants, the defendants must articulate a racially neutral explanation for peremptory challenges. Georgia v. McCollum, 505 U.S. 42, 112 S. Ct. 2348, 120 L. Ed. 2d 33 (1992), rev'g, 261 Ga. 473, 405 S.E.2d 688 (1988).

Invited error by defense counsel.

- Any error in the application of O.C.G.A. § 15-12-165, with regard to the defendant's trial for murder, was invited by defense counsel and, as such, was not grounds for reversal. Rogers v. State, 282 Ga. 659, 653 S.E.2d 31 (2007), cert. denied, 552 U.S. 1311, 128 S. Ct. 1882, 170 L. Ed. 2d 747, reh'g denied, 554 U.S. 930, 128 S. Ct. 2988, 171 L. Ed. 2d 907 (2008), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Misunderstanding regarding number of peremptory challenges not ineffective assistance.

- Defendant failed to carry the defendant's burden of showing that the defendant was actually prejudiced by the defendant's lawyer's misunderstanding about the number of peremptory challenges to which the defendant was entitled under O.C.G.A. § 15-12-165 and, therefore, the trial court did not err in denying the defendant's motion for a new trial based on ineffective assistance of counsel. Shields v. State, 307 Ga. App. 830, 706 S.E.2d 187 (2011).

Use of all strikes required.

- Because the defendant exercised only eight of the nine peremptory strikes authorized by O.C.G.A. § 15-12-165, such was one reason for the appellate court not to reverse the trial court's order overruling a motion for a change of venue. Phillips v. State, 284 Ga. App. 224, 644 S.E.2d 153 (2007).

Cited in Cruce v. State, 59 Ga. 83 (1877); Butler v. State, 92 Ga. 601, 19 S.E. 51 (1893); Cumming v. State, 99 Ga. 662, 27 S.E. 177 (1896); Nobles v. State, 12 Ga. App. 355, 77 S.E. 184 (1913); Curry v. State, 17 Ga. App. 377, 87 S.E. 685 (1915); Herndon v. State, 178 Ga. 832, 174 S.E. 597 (1934); Hooks v. State, 215 Ga. 869, 114 S.E.2d 6 (1960); Thacker v. State, 226 Ga. 170, 173 S.E.2d 186 (1970); Munsford v. State, 129 Ga. App. 547, 199 S.E.2d 843 (1973); Geiger v. State, 129 Ga. App. 488, 199 S.E.2d 861 (1973); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973); Rucker v. State, 135 Ga. App. 468, 218 S.E.2d 146 (1975); Jones v. State, 137 Ga. App. 612, 224 S.E.2d 473 (1976); Gatlin v. State, 236 Ga. 707, 225 S.E.2d 224 (1976); Dorsey v. State, 236 Ga. 591, 225 S.E.2d 418 (1976); Maddox v. State, 145 Ga. App. 363, 243 S.E.2d 740 (1978); Jordan v. State, 247 Ga. 328, 276 S.E.2d 224 (1981); Blankenship v. State, 247 Ga. 590, 280 S.E.2d 623 (1981); Whittington v. State, 252 Ga. 168, 313 S.E.2d 73 (1984); Curry v. State, 255 Ga. 215, 336 S.E.2d 762 (1985); Leeks v. State, 188 Ga. App. 625, 373 S.E.2d 777 (1988); Hood v. State, 245 Ga. App. 391, 537 S.E.2d 788 (2000); Chandler v. State, 281 Ga. 712, 642 S.E.2d 646 (2007); Dixon v. State, 285 Ga. 312, 677 S.E.2d 76 (2009); Stinski v. State, 286 Ga. 839, 691 S.E.2d 854 (2010); Barmore v. State, 323 Ga. App. 377, 746 S.E.2d 289 (2013).

Number

Application of amended provisions.

- Since strikes are procedural and not substantive in nature, the defendant was not deprived of any protected right by the application of the amended version of O.C.G.A. § 15-12-165 regardless of whether such application was retroactive. Barner v. State, 263 Ga. 365, 434 S.E.2d 484 (1993).

Defendant made a constitutional challenge to the retrospective application of three provisions of the Criminal Justice Act, Ga. Laws 2005, p. 20 (Act). No reversible error resulted from challenges to the closing arguments or admission of character evidence as: (1) the former was not distinctly ruled upon by the lower court; and (2) the lower court sustained objections to the admissibility of character evidence. Thus, the state could not introduce character evidence regarding the defendant's prior criminal convictions. Moreover, a change in the number of the defendant's peremptory challenges by the Act did not affect any protected right by the application of the amended version of O.C.G.A. § 15-12-165, as strikes were procedural and not substantive in nature. Madison v. State, 281 Ga. 640, 641 S.E.2d 789 (2007).

Because the exercise of peremptory challenges was procedural and not an independent substantive right, the trial court's application of the amended version of O.C.G.A. § 15-12-165 at the time of trial could not have violated any constitutional prohibition against ex post facto laws. Newman v. State, 286 Ga. App. 353, 649 S.E.2d 349 (2007).

Maximum sentence possible determines number of peremptory challenges allowed. Lowe v. State, 133 Ga. App. 420, 210 S.E.2d 869 (1974).

Maximum time of imprisonment in the penitentiary for a particular charge determines the number of peremptory challenges allowed. Bailey v. State, 233 Ga. 452, 212 S.E.2d 1 (1975).

Maximum time of imprisonment not total of charges determines number of peremptory challenges.

- This section does not apply to a case if the defendant is indicted in more than one count and if none of the counts charge defendant with an offense punishable by four years or more imprisonment in the penitentiary. The maximum time of imprisonment in the penitentiary for a particular charge determines the number of peremptory challenges allowed, rather than the total of all charges. Harvey v. State, 128 Ga. App. 844, 198 S.E.2d 323 (1973).

Term "not less than four years" includes amount of exactly four years. Arnold v. State, 86 Ga. App. 160, 71 S.E.2d 102 (1952); Lowe v. State, 133 Ga. App. 420, 210 S.E.2d 869 (1974) (decided prior to 1992 amendment).

Multiple challenges unauthorized for multiple offenses.

- Defendant is not entitled to additional peremptory challenges from the fact that the indictment contains several counts charging separate and distinct offenses joinable in the same indictment. Meriwether v. State, 63 Ga. App. 667, 11 S.E.2d 816 (1940).

indictment that contains more than one charge in several counts does not authorize an increase in the number of peremptory challenges allotted the defendant and this rule applies equally to a trial upon multiple offenses. Callahan v. State, 229 Ga. 737, 194 S.E.2d 431 (1972).

Joint defendants entitled to only 20 (now nine) strikes.

- When former Code 1933, §§ 27-2101 and 59-805 (see now O.C.G.A. §§ 15-12-165 and17-8-4) were construed in pari materia, joint defendants in the same case were entitled to a total of 20 (now nine) strikes to be exercised by all of the defendants. Allen v. State, 235 Ga. 709, 221 S.E.2d 405 (1975).

Former Code 1933, § 27-2101 (see now O.C.G.A. § 17-8-4), which must be construed in pari materia with former Code 1933, § 59-805 (see now O.C.G.A. § 15-12-165), allowed only a total of 20 (now 12) peremptory challenges to two or more defendants when tried jointly. Taylor v. State, 140 Ga. App. 447, 231 S.E.2d 364 (1976).

More strikes allowed.

- Under former Code 1933, § 27-2101 (see now O.C.G.A. § 17-8-4), if more than two defendants were indicted and tried jointly, it did not mean that some of the defendants would have no strikes since the trial judge was allowed to allot up to five additional strikes per defendant in excess of the number of strikes specified in former Code 1933, § 59-805 (see now O.C.G.A. § 15-12-165). Albert v. State, 235 Ga. 718, 221 S.E.2d 413 (1975).

More strikes denied.

- Trial court did not err by refusing to grant a defendant more than 15 peremptory strikes. Thomason v. State, 281 Ga. 429, 637 S.E.2d 639 (2006).

Harmless error for trial court to insist on qualifying 60 prospective jurors instead of 54.

- With regard to a defendant's conviction for malice murder and other crimes, while the trial court acknowledged that a panel of 54 jurors was required for selection of the jury and four alternates, the court's insistence on qualifying 60 prospective jurors was harmless error as any error regarding a juror qualified 55 or later on the panel was of no significance since it would have been impossible for those jurors to have been reached during the selection of either the jury or the alternate jurors, and the state and the defense were each allotted four additional peremptory challenges for the purpose of selecting four alternate jurors. O'Kelley v. State, 284 Ga. 758, 670 S.E.2d 388 (2008).

Error in qualification of jurors harmless.

- Any error in the qualification of Jurors 45 and 80 was harmless as a matter of law because the jury was struck from a panel of 49 potential jurors and the 31st juror to be qualified was Juror 42; it takes a qualified panel of 30 (nine defense strikes plus nine state strikes plus 12 jurors) to select a jury and any juror qualified beyond the 31st juror on the panel is harmless. Huckabee v. State, 287 Ga. 728, 699 S.E.2d 531 (2010).

Court properly granted state two additional jury strikes after giving defendants four additional strikes, two for each defendant. While it is true that O.C.G.A. § 17-8-4 is silent on the question of additional strikes for the state, the statute is to be construed in pari materia with O.C.G.A. § 15-12-165, which provides that the state "shall be allowed one-half the number of peremptory challenges allowed to the accused." Gerald v. State, 189 Ga. App. 155, 375 S.E.2d 134 (1988).

Excusal for Cause

Failure to excuse for cause harmful error.

- When the defendant in a felony trial has to exhaust defendant's peremptory strikes to excuse a juror who should have been excused for cause, the error is harmful. Logue v. State, 155 Ga. App. 476, 271 S.E.2d 42 (1980).

Unless peremptory strikes remain.

- If it does not affirmatively appear from the record that a party exhausted the party's peremptory challenges at the time the full panel of jurors was accepted and sworn, the appellate court will presume that the party was not prejudiced by the action of the court in erroneously disallowing the party's challenge for cause, and will not grant a reversal for the alleged error. Finney v. State, 241 Ga. 582, 250 S.E.2d 388 (1978), cert. denied, 441 U.S. 916, 99 S. Ct. 2017, 60 L. Ed. 2d 388 (1979); King v. State, 177 Ga. App. 788, 341 S.E.2d 307 (1986).

Wrongful exclusion for cause.

- When the twelfth juror is selected and the state has three peremptory challenges remaining, the prior exclusion for cause of three jurors for their opposition to capital punishment is harmless. Alderman v. State, 241 Ga. 496, 246 S.E.2d 642, cert. denied, 439 U.S. 991, 99 S. Ct. 593, 58 L. Ed. 2d 666 (1978), for comment, see 31 Mercer L. Rev. 349 (1979).

OPINIONS OF THE ATTORNEY GENERAL

Unused peremptory challenges may not be used as to alternate jurors.

- In selecting alternate jurors under O.C.G.A. § 15-12-169, the parties are not entitled to utilize unused O.C.G.A. § 15-12-165 peremptory challenges as additional peremptory challenges to the alternate jurors. 1993 Op. Att'y Gen. No. U93-3.

RESEARCH REFERENCES

Am. Jur. 2d.

- 21A Am. Jur. 2d, Criminal Law, § 990.

47 Am. Jur. 2d, Jury, § 206 et seq.

C.J.S.

- 50A C.J.S., Juries, §§ 431 et seq., 473, 483 et seq.

ALR.

- Excusing qualified juror drawn in criminal case as ground of complaint by defendant, 96 A.L.R. 508.

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

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.

Jury: number of peremptory challenges allowed in criminal case, where there are two or more defendants tried together, 21 A.L.R.3d 725.

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.

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.

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

Deafness of juror as ground for impeaching verdict, or securing new trial or reversal on appeal, 38 A.L.R.4th 1170.

Use of peremptory challenges to exclude Caucasian persons, as a racial group, from criminal jury - post Batson state cases, 20 A.L.R.5th 398; 47 A.L.R.5th 259.

Peremptory Challenge Excluding Person on Basis of Sexual Orientation as Violation of Federal Constitution, 48 A.L.R. Fed. 3d Art. 2.

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