223.4Jury Selection

Challenges and Excusing Jurors
Last Updated: 02/26/20

Key Concepts

  • The state questions and challenges prospective jurors first, then each defendant (consecutively) questions and challenges them.
  • The state and the defendants each get a set number of peremptory challenges to excuse prospective jurors as they see fit and without offering any particular reason, but subject to constitutional restrictions.
  • There is no limit to the number of jurors a party may challenge for cause.

Basic Challenge and Passing Procedure

A “challenge” is the method used by the prosecutor and defense attorney(s) to object to the jurors presented to them, as described in G.S. 15A-1214, when a case is called for trial. The prosecutor and defense attorney do not have a right to select particular jurors to hear their case. However, counsel has the right to challenge an individual juror (or the entire jury panel) to the extent described below, to secure an impartial jury. State v. Allred, 275 N.C. 554 (1969). Thus, the purpose of a jury challenge is to give the prosecution and defense an opportunity to remove “objectionable” jurors who may be biased against the case, thereby ensuring the selection of a fair and impartial jury who will reach a decision based solely upon the evidence produced at trial. Id.

In most trials, the judge will first briefly question the prospective jurors as a group concerning their general fitness and competency (e.g., name, residency, and time since last jury service). See G.S. 15A-1214(c). The prosecutor then gets the first opportunity to question the jurors and make any challenges. See G.S. 15A-1214(d). If the court excuses any jurors based on the prosecutor’s challenges, replacement jurors are seated and questioned, until the state “passes” a full panel of twelve jurors to the defense. The panel is then questioned by each co-defendant (consecutively), who may also make challenges and have jurors excused. See G.S. 15A-1214(e), (f); State v. Rogers, 316 N.C. 203 (1986). The remaining panel is then passed back to the state, new jurors are called to fill any vacancies which resulted from all of the defendants’ challenges, and the process repeats. Later rounds of questions and challenges are generally restricted to the new jurors who were not already passed by both sides, see G.S. 15A-1214(f), but the court does have discretion to reopen voir dire of a seated juror if it discovers that a juror has made a misrepresentation, changed his or her mind as to an answer, given an inconsistent answer to the defense compared to the answers given to the state, or for other reasons constituting “good cause.” See G.S. 15A-1214(g); State v. Holden, 346 N.C. 404 (1997)State v. Womble, 343 N.C. 667 (1996)State v. Bond, 345 N.C. 1 (1996).

Once a full jury of twelve has been accepted and passed by the state and each defendant, the judge may permit the seating of one or more alternate jurors, who must attend the trial and have the same opportunity to see and hear the proceedings that the other jurors have. See G.S. 15A-1215(a). In capital cases, the judge is required to seat at least two alternate jurors. G.S. 15A-1215(b). If any juror becomes incapacitated, disqualified, or discharged for any reason (prior to final submission of the case to the jury), an alternate juror becomes a jury member in his or her place. G.S. 15A-1215(a). Alternates are called upon to replace jurors, if needed, in the same order in which the alternates were originally selected. Id. Alternates are discharged after the final charge is given to the jury, since they are not permitted to replace a juror after deliberations have begun anyway. See G.S. 15A-1215(a); State v. Bunning, 346 N.C. 253 (1997). However, in capital cases, alternates are retained during the jury’s guilt/innocence deliberations in case they are needed for a subsequent sentencing deliberations. See G.S. 15A-1215(a), (b).

Challenging Entire Jury Panel

Pursuant to G.S. 15A-1211and G.S. 9-1 et seq., either the state or any defendant may challenge the jury panel as a whole. A challenge to the panel must: (i) be made in writing; (ii) be made only on the ground that the jurors were not selected or drawn according to law; (iii) specify the facts for the ground of challenge; and (iv) be made and decided before any juror is examined. A defendant may also challenge as discriminatory the selection of the jury panel from which the prospective jurors are chosen. See Berghuis v. Smith, 559 U.S. 314 (2010); State v. Jackson, 215 N.C. App. 339 (2011). For more information, see the discussion about what constitutes a “fair cross-section of the community” in the related entry on Jury Selection – Qualifications

Challenging Individual Jurors 

The prosecutor or defense attorney must clearly and expressly inform the judge of a challenge to a particular juror by stating, in a timely manner during jury selection, that counsel is objecting to the selection of a particular juror either for cause, in which case counsel must state grounds for challenge for cause, or as a peremptory challenge for which no grounds need be stated (subject to Batson, discussed below). See G.S. 15A-1214(c), (d), (e), (f); G.S. 9-15(a). The court, in its discretion, may also excuse a prospective juror without a challenge by either party. G.S. 15A-1211(d).

A challenge to a juror should ordinarily be made as the jurors are presented and before they are accepted, but the trial judge does have discretion to reopen examination of a juror for good cause before the jury is impaneled. G.S. 15A-1214(g); State v. Bond, 345 N.C. 1 (1996)State v. Freeman, 314 N.C. 432 (1985)State v. Brady, 299 N.C. 547 (1980) (“it is within the discretion of the trial judge to reopen the examination of a juror, previously passed by both the State and the defendant, and to excuse such juror upon challenge, either peremptory or for cause”).

If the judge decides to reopen the examination to question a particular juror, the parties must be permitted to exercise any remaining peremptory challenges to excuse that juror. State v. Freeman, 314 N.C. 432 (1985)State v. Barts, 316 N.C. 666 (1986)State v. Thomas, 195 N.C. App. 593 (2009). See also State v. Boggess, 358 N.C. 676 (2004) (when trial judge allowed counsel to question already-selected juror about new information before jury was impaneled, voir dire had necessarily been reopened under G.S. 15A-1214(g) and trial judge erred in not allowing counsel to exercise a remaining peremptory challenge).

Peremptory Challenges

1. Grounds and Number

Peremptory challenges may be made without explaining any reason for objecting to a particular juror. The state is allowed six (6) peremptory challenges for each defendant in a non-capital trial and fourteen (14) challenges for each defendant in a capital trial, plus an additional peremptory challenge for each alternate juror. See G.S. 15A-1217. Defendants are allowed six (6) peremptory challenges in a non-capital trial and fourteen (14) challenges in a capital trial, plus one peremptory challenge per alternate juror. A trial judge is not authorized to permit either party to exercise more peremptory challenges than specified by statute. State v. Hunt, 325 N.C. 187 (1989)State v. Johnson, 298 N.C. 355 (1979)State v. Dickens, 346 N.C. 26 (1997). If voir dire is reopened, a party has the right to use any remaining peremptory challenges on the juror(s) for whom voir dire has been reopened. See State v. Hammonds, 218 N.C. App. 158 (2012); State v. Thomas, 195 N.C. App. 593 (2009).

Practice Pointer

Additional peremptory challenges for alternates
In practice, the parties will be granted all of their additional peremptory challenges for alternates at the beginning of the alternate selection process. For example, if the court plans to seat two alternates, each party will be granted two additional peremptory challenges at the start of the selection process. A party may decide to use both of those challenges while selecting first alternate, in which case that party would only be able to challenge the second alternate for cause (assuming the party had already exhausted all their original peremptory challenges, as well). See State v. Sanders, 317 N.C. 602 (1986) (when the last of three alternates was called up for voir dire examination, the defendant had already “exhausted all additional peremptory challenges available to them under N.C.G.S. § 15A–1217(c)” and thus could not excuse the third alternate other than for cause).

2. Batson Issues
 
The general rule is that a peremptory challenge may be used without offering any reasons. However, if a defendant establishes a prima facie case that the prosecutor used peremptory challenges to remove jurors based on race (or another protected class, such as sex), then the burden shifts to the prosecutor to offer a race-neutral, specific explanation why he or she used the peremptory challenge -- after which, the trial court must decide whether the defendant has proven purposeful discrimination. See Batson v. Kentucky, 476 U.S. 79 (1986); Purkett v. Elem, 514 U.S. 765 (1995) (prosecutor’s reason given for exercising peremptory challenge is considered race neutral unless discriminatory intent inherent in explanation); State v. Hoffman, 348 N.C. 548 (1998) (there is a three-step process to follow: (i) prima facie case for allegation, (ii) race-neutral explanation, (iii) judge’s determination); State v. Locklear, 349 N.C. 118 (1998)State v. Smith, 347 N.C. 453 (1998); State v. Robinson, 330 N.C. 1 (1991) (court finds that prosecutor articulated sufficient neutral explanations in exercising peremptory challenges of five prospective jurors); State v. Abbott, 320 N.C. 475 (1987) (prosecutor’s use of peremptory challenges to remove three of five prospective black jurors did not establish prima facie case); accord State v. Porter, 326 N.C. 489 (1990) (similar ruling); State v. Corpening, 129 N.C. App. 60 (1998).
 
  1. The Batson ruling also applies to the defendant’s improper use of peremptory challenges to remove jurors on the basis of race. See Georgia v. McCollum, 505 U.S. 42 (1992)State v. Hurd, 784 S.E.2d 528 (2016); State v. Cofield, 129 N.C. App. 268 (1998).
  2. A white defendant may likewise raise a Batson claim, if applicable, and the Batson ruling applies to the purposeful exclusion of other “cognizable racial minorities,” not just African-Americans. See Powers v. Ohio, 499 U.S. 400 (1991); State v. Porter, 326 N.C. 489 (1990) (alleged Batson violation for excluding Native American jurors).
  3. The party making the Batson claim must establish the jurors’ race on the record for appellate review. See State v. Brogden, 329 N.C. 534 (1991)State v. Payne, 327 N.C. 194 (1990); State v. Mitchell, 321 N.C. 650 (1988).
  4. If the judge rules that a Batson violation has occurred, the appropriate remedy is to begin the jury selection process again with new jury panel. See State v. McCollum, 334 N.C. 208 (1993).

Challenges for Cause

There is no statutory limit on the number of challenges for cause available to each party; if sufficient cause for disqualification is shown, the court should grant the challenge. See G.S. 15A-1212 and G.S. 9-15(b). The grounds to challenge for cause are listed in G.S. 15A-1212 (1)-(9). Under the statute, a juror is subject to challenge for cause if:

1. Juror does not qualify under G.S. 9-3 (e.g., juror is not over 18 years of age, cannot hear or understand English language, or was convicted of a felony and rights are not restored).

See State v. Emery, 224 N.C. 581 (1944) (“we have held, quite recently, that a jury composed of eleven citizens and one alien was not a lawful jury”); State v. Rogers, 355 N.C. 420 (2002) (judge has discretion to allow or deny the request based on age, but may not adopt a blanket policy of excusing all elderly jurors who request to be excused). 

2. Juror is not capable of service by reason of physical or mental infirmity.

See State v. Hedgepeth, 350 N.C. 776 (1999) (juror not disqualified by inoperable brain tumor which caused some memory loss – note taking would compensate for any memory impairment); State v. Neal, 346 N.C. 609 (1997) (juror excused for medical problems and valium addiction); State v. Carter, 338 N.C. 569 (1994) (juror excused due to being 8 months pregnant).

3. Juror has participated in civil or criminal proceedings involving matter related to charge against defendant.

See G.S. 15A-1212(3); but see State v. McNeil, 99 N.C. App. 235 (1990) (not error to refuse to excuse for cause prospective juror who was employed as Assistant Attorney General for State of North Carolina when challenge was based solely on employment; but employment relationship will disqualify a juror if position is such that juror is subject to strong influences that run counter to defendant’s right to trial by impartial jury).

4. Juror has been adverse party to defendant in civil action or has complained against or been accused by defendant in a criminal prosecution.

See G.S. 15A-1212(4); but see State v. Whitfield, 310 N.C. 608 (1984) (challenge properly denied since no impartiality shown concerning juror who was an employee of police department not involved in the case and juror was also the father of a prosecutor who was not involved in trial).

5. Juror is related by blood or marriage within sixth degree to defendant or victim of crime.

See State v. Allred, 275 N.C. 554 (1969) (decided prior to current statute, but holding that “[i]n this jurisdiction, a juror, who is related to the defendant by blood or marriage within the ninth degree of kinship, is properly rejected when challenged by the State for cause on that ground”).

6. Juror has formed or expressed an opinion as to guilt or innocence of defendant.

See G.S. 15A-1212(6); but see State v. Cummings, 326 N.C. 298 (1990) (judge not required to remove from panel every potential juror who has preconceived opinions as to guilt or innocence of defendant; if juror credibly maintains that he or she can and will lay aside preconceived opinion and render a verdict based on the evidence, then it is not error to deny motion to remove for cause)

7. Juror is presently charged with felony.

See G.S. 15A-1212(7).

8. As a matter of conscience, juror would be unable to render verdict with respect to charge in accordance with law.

E.g., State v. Hightower, 331 N.C. 636 (1992) (challenge should have been allowed when juror indicated he might have trouble being fair to defendant if defendant did not testify; juror’s answers showed he could not follow the law); State v. Leonard, 296 N.C. 58 (1978) (trial court erred in failing to dismiss for cause those jurors who stated that they could not acquit defendant based on insanity defense; one who is unwilling to accept a defense which is recognized under the law, even if proved, should be removed from the jury when challenged for cause); State v. Noell, 284 N.C. 670 (1974) (challenge properly allowed and jurors excused for cause where jurors stated unequivocally that, because of friendship with defendant, they could not render guilty verdict even if state proved guilt beyond a reasonable doubt).

9. For any other cause, the juror is unable to render a fair and impartial verdict.

E.g., State v. Brady, 299 N.C. 547 (1980) (challenge properly allowed and juror excused for cause when juror indicated that he was employed by and worked closely with defendant’s brother); State v. Lee, 292 N.C. 617 (1977) (challenge should have been allowed against juror who had been wife of police officer for eleven years, knew state’s chief investigating officer, a key State’s witness, juror had close ties with police, and expressed tendency to give more credibility to testimony of police officer than of strangers); but see State v. Benson, 323 N.C. 318 (1988) (challenge properly denied even though juror knew four of the police officers who were prospective witnesses for the state – juror unequivocally stated that acquaintance with witnesses would not affect juror’s verdict); State v. Lynch, 300 N.C. 534 (1980) (challenge properly denied even though juror stated he would place more value on testimony of law enforcement officer, but said he would be fair to both sides).

Renewing Challenges for Cause

If a party has exhausted all of its peremptory challenges, the party may move either orally or in writing to renew any previous unsuccessful challenges for cause, provided that: (i) the party used a peremptory challenge to excuse the juror after the requested excusal for cause was denied, or (ii) the party states that it would have excused that juror peremptorily, if all the party’s peremptory challenges had not already been used. G.S. 15A-1214(i). If, upon reconsideration, the court decides that it should have excused the juror for cause, the moving party must be allowed an additional peremptory challenge. Id.

Issues on Appeal

For a defendant to appeal on the grounds the judge refused a challenge for cause, he must have (i) exhausted all peremptory challenges; (ii) renewed his challenges as provided in 15A-1214(i); and (iii) had the challenge denied. Therefore, a party’s failure to exhaust all peremptory challenges waives any right to object to a denial of a challenge for cause. State v. Weeks, 322 N.C. 152 (1988). Furthermore, a defendant is not entitled to a new trial if jurors who were competent and qualified to serve were actually impaneled on the jury that tried the case. State v. Monk, 286 N.C. 509 (1975)State v. Carson, 296 N.C. 31 (1978).

Portions of this entry were excerpted from the 2013 North Carolina Defender Manual, Volume 2, Chapter 25.