This rule embodies existing law, 28 U. In capital cases the number of challenges is equalized as between the defendant and the United States so that both sides have 20 challenges, which only the defendant has at present.
While continuing the existing rule that multiple defendants are deemed a single party for purposes of challenges, the rule vests in the court discretion to allow additional peremptory challenges to multiple defendants and to permit such challenges to be exercised separately or jointly. Experience with cases involving numerous defendants indicates the desirability of this modification.
Note to Subdivision c. Experience has demonstrated that four alternate jurors may not be enough for some lengthy criminal trials. See e. Bentvena , F. The amendment to the first sentence increases the number authorized from four to six. The fourth sentence is amended to provide an additional peremptory challenge where a fifth or sixth alternate juror is used. See United States v. Goldberg , F. Section 2 c of Pub. As currently written, Rule 24 c explicitly requires the court to discharge all of the alternate jurors—who have not been selected to replace other jurors—when the jury retires to deliberate.
That requirement is grounded on the concern that after the case has been submitted to the jury, its deliberations must be private and inviolate. United States v. Houlihan , 92 F. Virginia Election Corp. Rule 23 b provides that in some circumstances a verdict may be returned by eleven jurors.
In addition, there may be cases where it is better to retain the alternates when the jury retires, insulate them from the deliberation process, and have them available should one or more vacancies occur in the jury. That might be especially appropriate in a long, costly, and complicated case.
To that end the Committee believed that the court should have the discretion to decide whether to retain or discharge the alternates at the time the jury retires to deliberate and to use Rule 23 b to proceed with eleven jurors or to substitute a juror or jurors with alternate jurors who have not been discharged. In order to protect the sanctity of the deliberative process, the rule requires the court to take appropriate steps to insulate the alternate jurors.
That may be done, for example, by separating the alternates from the deliberating jurors and instructing the alternate jurors not to discuss the case with any other person until they replace a regular juror. See, e. Olano , U. The strategic use of stand asides to achieve a jury that is more receptive to the prosecution case is prohibited, as is the use of stand asides based on the age, gender or race of the prospective juror.
These prosecution policies go a long way to explaining the significant disparity between the use of peremptory challenges and stand asides. Both defence practitioners and prosecutors explained that informal agreements are sometimes made for the prosecution to stand aside a prospective juror who is known to the defence, or a prospective juror who clearly shows they do not wish to be on the jury.
However, there appears to be no consistent practice, and the discretion to make such agreements rests with the individual prosecutor. For example, the Queensland Director of Public Prosecutions guidelines simply state that:. Selection of a jury is within the general discretion of the prosecutor. However, no attempt should be made to select a jury that is unrepresentative as to race, age, sex, economic or social background. The most significant portion of this cost is borne by Victorian employers, rather than the Victorian government.
So, for each criminal trial involving one accused, the JCO provides an additional 12 people to allow for six peremptory challenges and six stand asides. Allowances are also made for excuses and challenges for cause. However, as knowledge of a party is a reason to be excused, the larger size of regional panels in theory at least [95] should not be attributed to peremptory challenges and stand asides, but rather to the likely number of applications for excuse.
Peremptory challenges add to the cost of the empanelment process by requiring more people to attend for jury service than would otherwise be the case. However, the relationship between the size of the pool and the size of the panel required is not a simple one-to-one relationship—the JCO does not bring in an extra prospective juror for every possible challenge.
This is because prospective jurors who are not selected for one trial return to the jury pool and may be selected for another jury. The impact of stand asides is not considered, as they are so infrequently used.
The actual and potential effect of peremptory challenges on representativeness is then examined. Lastly, the section considers the basis of challenges, including the views of prospective jurors on why they had been challenged.
Historically, jurors were drawn from a very narrow band of society, specifically male property owners. This was reflected in the second reading for the Juries Act, where the Attorney-General stated that:. A jury must be representative of the community if a person is to be tried by his or. An essential consideration regarding the link between juries and justice legitimacy is community participation … it is better for democratic governance that jurors sit in the courtroom, rather than it remain the exclusive domain of legal professionals.
This diversity is said to balance individual biases. The studies also suggest that the benefits of participation may go beyond the individual to family and friends. This is illustrated by the data on the average gender composition of juries set out below. These demonstrate the potential for six peremptory challenges and three peremptory challenges respectively, to alter the gender composition of a jury in a criminal trial.
This means they should be represented at a rate of 6. For every man challenged, two women are challenged. This pattern was consistent over —12 and — However, it is possible that the under-representation of women could be more exaggerated in individual trials. Scenario 2 shows the potential for three peremptory challenges targeted to exclude women to alter the gender composition.
Scenario 1: Using six peremptory challenges to exclude women. The defence strategy is to use all of its six peremptory challenges to challenge women who are balloted from the panel for the jury. Eighteen people are selected from the panel to take into account six challenges for a jury of Of these, 9. As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 3. Scenario 2: Using three peremptory challenges to exclude women.
In this scenario, the accused has only three peremptory challenges. As in Scenario 1, the defence strategy is to use all of the peremptory challenges to challenge women who are balloted from the panel for the jury.
Fifteen people are selected from the panel to take into account three challenges for a jury of Of these 7. As a result of exercising all of the peremptory challenges to exclude women, the jury will be comprised of 4. Despite the accused using five challenges, all of which were to women, [] eight of the final 12 jurors selected were women.
However, the Commission also observed criminal jury empanelments with the opposite outcome—where women were challenged disproportionately, and the final jury was composed largely of men. However, this does not negate the potential for peremptory challenges to significantly skew representation of groups with certain characteristics if used in the way described in the scenarios. The Commission also asked prospective jurors what they thought the basis of the challenge to them was.
Some submissions from jurors and prospective jurors also stated their views on the basis of challenges they had observed. This accorded with the views of jurors and prospective jurors expressed in consultations and through the juror survey see Table 1 at [3.
Prospective jurors should be required to provide meaningful descriptions of their occupation or former occupation. Almost 20 per cent of the 72 survey respondents who had been challenged in criminal trials considered the challenge was based on their gender.
However, none of the 22 respondents for civil trials considered gender had been the basis for the challenge against them. A significant proportion of respondents for civil and criminal trials stated that they did not know the basis of the challenge against them. Table 1: Perceived basis for peremptory challenges []. Perceived basis for peremptory challenge These include:. Examples of this kind of challenge are noted at [3. One County Court judge questioned whether the law should continue to facilitate the exclusion of prospective jurors on bases which would amount to prohibited discrimination in other spheres of life.
Many studies indicate no link at all between juror characteristics and verdict preference. For example, one Supreme Court judge said that, even though she considered that there was little merit in the stereotypes and mythology that inform characteristic-based challenges, the use of peremptory challenges in these circumstances justified their availability.
She argued that far from ensuring an impartial jury, peremptory challenges may turn a representative, impartially selected sample of the community into a group which is more likely to be biased in favour of the accused.
Some jurors consulted by the Commission expressed a similar view, as have some jury researchers. Although the exact content of procedural fairness depends on the individual circumstances of the case, in general, it has two main aspects: []. It then discusses the benefits of procedural engagement by the parties through peremptory challenges. Finally, it discusses the role of peremptory challenges in ensuring the competence of the jury through the removal of jurors who are unwilling or unable to perform the task.
It has been recognised that aspects of the jury empanelment system can be modified or abolished by Parliament. Although the abolition was criticised by some practitioners at the time, [] a major review of criminal courts in England and Wales conducted in did not recommend reintroduction.
Further, it was noted that common assumptions, for example, that persons accused of sexual offences should challenge young women, could in fact be detrimental to the accused, as the jury may form negative views about the accused on the basis of such a strategy. It allows the defence to eliminate persons who are perceived, rightly or wrongly, to be potentially prejudiced against the defence. It therefore gives the accused some measure of control over the composition of the tribunal who will sit in judgment on him.
If that measure were lost, the accused would be likely to feel a considerable degree of injustice upon conviction. The benefit of enhanced perceptions of justice through the participation of the defendant in the jury empanelment process is now outweighed by the community ridicule that such a superficial, biased and embarrassing process brings to the justice system.
This is likely because, in civil jury trials, the parties are usually not directly involved in the empanelment process. The availability of 3 challenges per party might be seen as somewhat unfair to plaintiffs if there are several defendants as the challenges will be likely to give greater representation to those jurors thought likely to favour the defendant position. To the extent that peremptory challenges do provide parties with a strategic advantage, [] this is arguably unfair to the plaintiff in such cases.
At the empanelment stage, this unwillingness might be apparent from their demeanour, or the fact that they have unsuccessfully sought to be excused by the trial judge. For example, it sometimes becomes apparent during the empanelment or the trial that a prospective juror has a hearing impairment which makes them unable to hear the evidence. The Commission also conducted a paper-based and online survey.
The Commission identified themes from the responses and categorised them. Some responses fell into more than one category. For example, one respondent who had experienced the parade said:. Some of these reactions were very strong. For example, respondents in this group said:. However, when presented with the alternative of simply standing and facing the accused, [] rather than parading, all participants preferred this alternative. Consequently, the information below is based solely on the juror survey.
Around 66 per cent of prospective jurors who had observed the process were unconcerned about it. However, of these, nearly two-thirds accepted the process, despite considering it uncomfortable. For example:. These objections tended to be based more on an objection to the accused having the right to influence the composition of the jury, rather than the effect of the process on prospective jurors. Some participants also thought that the use of stereotypes as a basis for challenges was foolish or discriminatory, and should not be facilitated through peremptory challenges.
For criminal trials, 49 per cent favoured retaining peremptory challenges, while These alternatives are:. The most likely explanation for this is the ready availability of peremptory challenges. There is also a very limited understanding among practitioners as to grounds and process for challenge for cause.
The grounds specified in those Acts are that the person is not qualified for jury service or the person is not impartial. Their Honours cited, without express approval, a passage from the Criminal Law in New South Wales [] relied on by the trial judge, which provided that the grounds for challenge for cause were:. First, the party who makes a challenge for cause must inform the judge of the reasons for the challenge and give the judge information and materials available to the party that are relevant to the challenge.
Accordingly, challenges for cause and peremptory challenges should not be treated as alternatives to each other. Experience since peremptory challenge was abolished in England and Wales suggests that abolition would not result in a significant rise in challenge on cause shown.
The Commission accepts the arguments of practitioners and judges that challenge for cause:. Challenge for cause also provides an additional safeguard in the event a party exhausts all their peremptory challenges, and the party has grounds on which to base a challenge.
A more limited version of juror questioning is allowed in Queensland in some circumstances. The Queensland deputy sheriff has advised that while administratively workable, the questioning process in these trials was resource intensive and somewhat burdensome for jurors.
There is a vast United States jurisprudence on the interrogation of jurors by counsel. The Commission considers it would add no benefit to Victorian jurisprudence on jury selection and if adopted would significantly change the Victorian culture on jury selection. The Juries Act requires judges to inform jurors in all cases of:. Counsel are not permitted to cross-examine potential jurors.
In high-profile cases, where there has been substantial pre-trial publicity of the accused or a witness is publicly well known, the judge usually asks the jury panel whether, as a result of what they have heard about the case, there is any juror who feels that they cannot consider the case impartially. However, in asking this, judges usually explain to jurors that they will be guided and given directions by the judge throughout the trial on how they are to perform the jury function impartially and decide solely on the evidence admitted at trial.
It is also a less time-consuming and costly process, and is significantly less invasive for prospective jurors. Accordingly, the Commission does not consider that it is necessary or desirable to allow pre-trial questioning of jurors in Victoria, either as an exception along the lines of the Queensland Jury Act , or more generally as in the United States voir. They must occur prior to the juror being sworn.
Judges may also direct a prospective juror to stand by on their own motion. However, as noted at [3. They might also ask the Crown to stand aside a prospective juror who appears to be unable or unwilling to perform the task for example, if the prospective juror has unsuccessfully sought to be excused. This is, in effect, a challenge by consent. This discretion is valuable but rarely used, and there appears to be no compelling need for it to be specified in the Juries Act.
Peremptory challenges, by definition, do not require further rationale or explanation, so to require this would fundamentally change their character, and make them more akin to challenges for cause. Review of peremptory challenges on these grounds is also likely to prove difficult and time-consuming.
This is considered at [3. In summary, the Commission recommends that peremptory challenges and stand asides be retained in criminal trials, but the number available be reduced to minimise the potential for jury manipulation, and to bring Victoria into line with New South Wales, Western Australia and South Australia. Finally, the Commission recommends minor procedural changes to minimise any negative effects the peremptory challenge process may have on prospective jurors.
The Crown right to stand aside jurors in criminal trials should also be retained, as it is an important safeguard to ensuring a competent and impartial jury. There is a variety of other mechanisms in the jury selection process, and criminal procedure more generally, which ensure this occurs. Criminal jury trials in the United Kingdom have been successfully run for decades without peremptory challenges, and the Auld Report into the criminal courts of England and Wales declined to recommend the reintroduction of peremptory challenges.
In particular, there is value in the accused having the opportunity to participate in the jury selection process, and remove individuals they are particularly uncomfortable with. A majority of prospective jurors consulted by the Commission understood this rationale and supported it.
To this end, peremptory challenges and stand asides act as an additional safeguard in the event that other processes such as exemptions and excuses have failed to exclude such persons. As with criminal trials, peremptory challenges provide a quick and efficient means for parties to remove prospective jurors who are known or appear to be biased in some way, or appear to be unwilling or unable to serve.
Peremptory challenges should be retained for civil jury trials. In these circumstances, peremptory challenges may be better understood as a concession afforded to the accused given that their liberty is at stake, rather than as fundamental to the assurance of an impartial jury.
The Commission considers that the benefits of peremptory challenges outlined at [3. The significantly greater distorting potential that six challenges can have on the gender composition of the jury is illustrated by the scenarios at [3. Although no reason must be given for exercising a peremptory challenge, an attorney's use of the challenge cannot be motivated by bias.
If, for example, a defense attorney believes the prosecution is using peremptory challenges to exclude black jurors or women jurors, the prosecutor will need to show a race- or gender-neutral reason for the challenge. In , the U.
Supreme Court ruled that a prosecutor's peremptory challenges of African-American prospective jurors based on their race violated the prospective jurors' Equal Protection rights under the Constitution. Batson v. Kentucky, U. The Court reasoned that challenging a juror based on his or her race, because the attorney believes the juror could not be impartial to a defendant of the same race, assumes that people of a certain race cannot be unbiased.
This assumption violated the challenged jurors' Equal Protection rights. In , the Court held that the constitutional prohibition on peremptory challenges based on race also applied in civil cases.
Edmonson v. Leesville Concrete Co. In , the Court held that the same constitutional reasoning barred peremptory challenges based on gender.
Alabama , U. In addition to voir dire, attorneys for each side may turn to certain research and survey tools to test how sympathetic the jury pool in their area would be to their client's case. Some lawyers hire jury consultants, who often have detailed demographic information for a prospective jury pool. These consultants often also attend voir dire and advise the attorney who hired them during that process.
Some attorneys present portions of their case to focus groups of randomly selected area residents to see how people respond. Others present their cases to colleagues in mock trials to obtain feedback as to how jurors might respond to their presentation of evidence and their closing arguments.
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