2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 5 - Trial Juries
Part 2 - Juries in Felony Cases
§ 15-12-169.1. Choosing of Alternate Jurors; Peremptory Challenges

On and after July 1, 2012, alternate jurors shall be chosen from the same county master jury list and in the same manner and have the same qualifications as the jurors already sworn. They shall be subject to the same examination and challenges. The number of alternate jurors shall be determined by the court. The state and the accused shall be entitled to as many peremptory challenges to alternate jurors as there are alternate jurors called. The peremptory challenges allowed to the state and to the accused in such event shall be in addition to the regular number of peremptory challenges allowed in criminal cases to the accused and to the state as provided by law. When two or more accused are tried jointly, the number and manner of exercising peremptory challenges shall be determined as provided in Code Section 17-8-4.

(Code 1981, §15-12-169.1, enacted by Ga. L. 2011, p. 59, § 1-61/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.'"

- 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).

JUDICIAL DECISIONS

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1968, p. 1225, § 2 and former O.C.G.A. § 15-12-169 are included in the annotations for this Code section.

Defense waived error, if any, in court's reduction in number of peremptory strikes by failure to object. Norris v. State, 250 Ga. 38, 295 S.E.2d 321 (1982) (decided under former O.C.G.A. § 15-12-169).

- Although former O.C.G.A. § 15-12-169 anticipated that any additional challenges would be reserved until the alternates were selected, the failure to do so, absent objection, was not reversible error. Whittington v. State, 252 Ga. 168, 313 S.E.2d 73 (1984) (decided under former O.C.G.A. § 15-12-169).

Trial court's replacement of ill juror with alternate did not prejudice defendant's right to a fair trial and jury selection, even though ill juror had falsified the juror's physical ailments during voir dire. Norman v. State, 255 Ga. 313, 338 S.E.2d 249 (1986) (decided under former O.C.G.A. § 15-12-169).

- Discharge of juror whom defense counsel had previously, albeit briefly, represented, and replacement with an alternate juror was not reversible error. Payne v. State, 195 Ga. App. 523, 394 S.E.2d 781 (1990) (decided under former O.C.G.A. § 15-12-169).

- Two defendants' attorneys were not ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV and U.S. Const., amend. 6 for failing to object to the trial court's decision to replace a juror who was late to court with one of the alternate jurors who was fully qualified to sit on the jury under former O.C.G.A. § 15-12-169; the juror's tardiness was a sound basis for dismissal under O.C.G.A. § 15-12-172. Brooks v. State, 281 Ga. 14, 635 S.E.2d 723 (2006), cert. denied, 549 U.S. 1215, 127 S. Ct. 1266, 167 L. Ed. 2d 91 (2007) (decided under former O.C.G.A. § 15-12-169).

- 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) (decided under former O.C.G.A. § 15-12-169).

- Newly discovered evidence that a juror previously had been arrested supported the juror's removal and replacement with an alternate in a malice murder prosecution. Suits v. State, 270 Ga. 362, 507 S.E.2d 751 (1998) (decided under former O.C.G.A. § 15-12-169).

- Inasmuch as alternate jurors are selected in the same manner and must have the same qualifications as the impaneled jurors, there was no harm to the defendant in seating an alternate juror, particularly since the trial court specifically investigated the excused juror's inability to serve and that juror had stated that the juror had voluntarily voted for a guilty verdict. Cloud v. State, 235 Ga. App. 721, 510 S.E.2d 370 (1998) (decided under former O.C.G.A. § 15-12-169).

Cited in Alderman v. State, 241 Ga. 496, 246 S.E.2d 642 (decided under Ga. L. 1968, p. 1225, p. 2); Ruffin v. State, 242 Ga. 95, 252 S.E.2d 472 (1979); Curry v. State, 255 Ga. 215, 336 S.E.2d 762 (1985) (decided under Ga. L. 1968, p. 1225, p. 2); Aldridge v. State, 258 Ga. 75, 365 S.E.2d 111 (1988); Berry v. State, 267 Ga. 476, 480 S.E.2d 32 (1997) (decided under former O.C.G.A. § 15-12-169);(decided under former O.C.G.A. § 15-12-169);(decided under former O.C.G.A. § 15-12-169).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, opinions under former O.C.G.A. § 15-12-169 are included in the annotations for this Code section.

- In selecting alternate jurors under former O.C.G.A. § 15-12-169, the parties were 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 (decided under former O.C.G.A. § 15-12-169).

RESEARCH REFERENCES

ALR.

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