Chapter 85

8 GCA CRIMINAL PROCEDURE CH. 85 TRIAL BY JURY : CHALLENGE : ALTERNATES 1 CHAPTER 85 TRIAL BY JURY : CHALLENGE : ALTERNATES § 85.10. Waiver of Jury Trial Must be With Consent of Government and Approval of Court. § 85.15. Six (6) Member Juries; When Twelve (12) Ma y be Requested. § 85.20. Voir Dire. § 85.25. Peremptory Challenge Defined. § 85.30. Peremptory Challenges; Number Available. § 85.35. Challenge for Cause: Reasons; Who May Take . § 85.40. Order of Challenge; Full Panel Before Pree mptory Challenges; When Panel Sworn. § 85.45. Alternate Jurors. § 85.10. Waiver of Jury Trial Must be With Consent of Government and Approval of Court. Cases required to be tried by jury shall be so trie d unless the defendant waives a jury trial in writing with the approval of the court and the consent of the government. NOTE : Section 85.10 is identical to former Rule 23(a). See also Fed. R. Crim. P. 23(a). See generally 8 Moore, Federal Practice &&23.01-23.03(1974). As to those cases in which the defendant has a right to a jury trial, see § 680.1(b) of the Code of Civil Procedure. See also U.S. Const. Amend. VI, in corporated by Subdivision (u) of § 1421b of the Organic Act.

ases in which the defendant has a right to a jury trial, see § 680.1(b) of the Code of Civil Procedure. See also U.S. Const. Amend. VI, in corporated by Subdivision (u) of § 1421b of the Organic Act. As to the formation of the jury panel and general qualifications for jury duty, see Code of Civil Pro cedure §§ 680.2-680.6, 680.9. § 85.15. Six (6) Member Juries; When Twelve (12) Ma y be Requested. Juries shall be of six. However, in a prosecution by indictment or information, the defendant shall be entitled to a j ury of twelve upon his written request filed with the court prior to the d ate of trial. In any case where a jury of twelve is demanded, at any time bef ore verdict the parties may stipulate in writing with the approval of the c ourt that the jury shall consist of any number less than twelve but not less than six. NOTE : Section 85.15 replaces former Rule 23(b). In non- felony cases, the section requires a jury of six; in felony cases, the sectio n permits a jury of that size. The change is based on a recommendation by the National Advisory Commission on Criminal Justice Standards and Goals in Courts § 4. 14, at 101 (1973).

cases, the sectio n permits a jury of that size. The change is based on a recommendation by the National Advisory Commission on Criminal Justice Standards and Goals in Courts § 4. 14, at 101 (1973). The purpose of a reduction in size is, of course, economy. It is b elieved that a group of six (or more) satisfies the policy that the group be Alarge enough to promote group deliberation, free from outside attempts at intimidation, and to provi de a fair possibility for obtaining a COL41220178 GCA CRIMINAL PROCEDURE CH. 85 TRIAL BY JURY : CHALLENGE : ALTERNATES 2 representative cross-section of the community. @ Williams v. Florida, 399 U.S. 78, 100 (1970)(6-member jury approved). § 85.20. Voir Dire. The court may permit the defendant or his attorney and the prosecuting attorney to examine the prospective jurors to selec t a fair and impartial jury or may itself conduct the examination. In the latte r event the court shall permit the defendant or his attorney and the prosec uting attorney to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems

orney to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper. NOTE : Section 85.20 is substantively the same as former Rule 24(a). See also Fed. R. Crim. P. 24(a). Compare Cal. Pen. Code § 1078. See generally 8 Moore, Federal Practice &24.03(1974); B. Witkin, California Criminal Procedu re Trial §§ 406, 408- 415(1963, Supp. 1973). § 85.25. Peremptory Challenge Defined. A peremptory challenge is an objection to a juror for which no reason need be given, but upon which the court must exclud e such juror. It can be taken by either party and may be oral. NOTE : Section 85.25 is new; it is substantively the sam e as § 1069 of the California Penal Code. As to the number of peremptory challeng es and whether they must be taken jointly or separately by co-defendants, see § 85.30. As to challenges for cause, see § 85.35. This Chapter deals only with challenge s to an individual juror. As to challenges to an entire jury panel, see Code of Civ il Procedure § 680.7. Compare Cal. Pen. Code §§ 1055-1065. § 85.30.

§ 85.35. This Chapter deals only with challenge s to an individual juror. As to challenges to an entire jury panel, see Code of Civ il Procedure § 680.7. Compare Cal. Pen. Code §§ 1055-1065. § 85.30. Peremptory Challenges; Number Available. In a prosecution by indictment or information if th e offense charged is punishable by a life sentence, each side is entitle d to twenty peremptory challenges, otherwise the government is entitled to six peremptory challenges and the defendant or defendants jointly to ten peremptory challenges. In a prosecution by complaint, each sid e is entitled to three peremptory challenges. If there is more than one de fendant, the court may allow the defendants additional peremptory challeng es and permit them to be exercised separately or jointly. NOTE : § 85.30 continues the substance of former Rule 24 (b). See also Fed. R. Crim. P. 24(b) (same). Compare Cal. Pen. Code §§ 1070, 10 70.5. See generally 8 Moore, Federal Practice &24.04 (1974). COL41220178 GCA CRIMINAL PROCEDURE CH. 85 TRIAL BY JURY : CHALLENGE : ALTERNATES 3 § 85.35. Challenge for Cause: Reasons; Who May Take .

0 70.5. See generally 8 Moore, Federal Practice &24.04 (1974). COL41220178 GCA CRIMINAL PROCEDURE CH. 85 TRIAL BY JURY : CHALLENGE : ALTERNATES 3 § 85.35. Challenge for Cause: Reasons; Who May Take . (a) A challenge for cause is an objection to a pros pective juror based on any of the following grounds: (1) The prospective juror does not have the qualifi cations for jury service required by Title 7 GCA § 22105. (2) The prospective juror is related by blood or ma rriage within the second degree to the defendant, the person alleged to be injured by the offense charged or on whose complaint the prosecuti on was commenced, or a prospective witness or any attorney representing a party in the action, or the prospective juror bears some other relationship to any such person of such nature that it is likely to preclude him from being a fair and impartial juror. (3) The prospective juror has served on any jury wh ich heard evidence concerning the offense charged. (4) The prospective juror has a state of mind that will preclude him from being a fair and impartial juror. (b) A challenge for cause may be taken by any party .

dence concerning the offense charged. (4) The prospective juror has a state of mind that will preclude him from being a fair and impartial juror. (b) A challenge for cause may be taken by any party . If the court finds that grounds exist that support a challenge for cau se against a prospective juror, he shall discharge such juror. 2017 NOTE: The reference in subsection (a)(1) to § 680.5 of th e Code of Civil Procedure has been updated to reflect the codificat ion of CCP § 680.5 as 7 GCA § 22105, 'Grounds for Disqualification.' NOTE : Section 85.35 is new; it is based on §§ 1071 thro ugh 1074 of the California Penal Code. See generally B. Witkin, California Cri minal Procedure Trial §§ 398-404 (1963, Supp. 1973). § 85.40. Order of Challenge; Full Panel Before Pere mptory Challenges; When Panel Sworn. (a) The court may direct the order in which challen ges are to be taken both as to parties and as to type of challenge. (b) Each party shall be entitled to have the panel full before exercising any peremptory challenge. The number of peremptory challenges remaining with a party shall not be diminished by any passing of a peremptory challenge.

ntitled to have the panel full before exercising any peremptory challenge. The number of peremptory challenges remaining with a party shall not be diminished by any passing of a peremptory challenge. (c) After all parties on both sides pass consecutiv ely, the jury shall be sworn. COL41220178 GCA CRIMINAL PROCEDURE CH. 85 TRIAL BY JURY : CHALLENGE : ALTERNATES 4 NOTE : Section 85.40 is new. Subsection (a) makes clear that the court may order either the defendant or the prosecuting attorney to take his challenges first and may further order that challenges for cause (and for pa rticular types of cause) be taken before peremptory challenges. Compare Cal. Pen. Cod e §§ 1086-1088. See generally B. Witkin, California Criminal Procedure Trial §§ 4 16-417, 422 (1963, Supp. 1973). Subsection (b) makes clear that a party is entitled to have a full panel of prospective jurors seated before being required to exercise a p eremptory challenge and further that passing a peremptory challenge does not affect the number of available challenges. See Cal. Pen. Code § 1088 (same). § 85.45. Alternate Jurors.

ed to exercise a p eremptory challenge and further that passing a peremptory challenge does not affect the number of available challenges. See Cal. Pen. Code § 1088 (same). § 85.45. Alternate Jurors. The court may direct that no more than six (6) juro rs in addition to the regular jury be called and impanelled to sit as alt ernate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become or are found to be unable or disqualified to perform their duties. Alt ernate jurors shall be drawn in the same manner, shall have the same qualificati ons, shall be subject to the same examination and challenges; shall take the same oath and shall have the same functions, powers, facilities and pri vileges as the regular jurors. An alternate juror who does not replace a r egular juror shall be discharged after the jury retires to consider its v erdict. Each side is entitled to one (1) peremptory challenge in addition to those o therwise allowed by law if one (1) or two (2) alternate jurors are to be im panelled, two (2) peremptory challenges if three (3) or four (4) alternate juror s are to be

allenge in addition to those o therwise allowed by law if one (1) or two (2) alternate jurors are to be im panelled, two (2) peremptory challenges if three (3) or four (4) alternate juror s are to be impanelled, and three (3) peremptory challenges if five (5) or six (6) alternate jurors are to be impanelled. The additional peremptory challenges ma y be used against an alternate juror only, and the other peremptory chal lenges allowed by these rules may not be used against an alternate juror. NOTE : Section 85.45 is identical to former Rule 24(c). See also Fed. R. Crim. P. 24(c) (same). Compare Cal. Pen. Code § 1089. See ge nerally 8 Moore, Federal Practice &24.05 (1974); B. Witkin, California Criminal Proced ure Trial §§ 424-426 (1963). ---------- COL4122017