RULE 24. TRIAL JURORS
(a)Brief Opening Statements. With the consent of the court, the parties may, or if required by the court, the parties shall, present brief opening statements to the entire jury panel prior to voir dire.
(a) (b) Examination of Jurors. The court may call for examination an initial venire of prospective jurors equal to the number of jurors necessary for the jury plus the number of peremptory challenges available to the parties. If, after the parties have exercised their challenges, the venire size is larger than the number required under Rule 23, the excess number of jurors will be excused in inverse order in which they were called. The court may allow singular examination of prospective jurors in chambers. The court shall permit the defendant or the defendant's attorney and the prosecuting attorney to participate in the examination of prospective jurors. (b) (c)Challenges.
(1) Peremptory Challenges. Each side is entitled to four (4) peremptory challenges when a six (6) person jury is to be impaneled and six (6) peremptory challenges when a twelve (12) person jury is to be impaneled except if the offense charged is a AA felony, each side is entitled to ten (10) peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.
(2) Challenges for Cause. If the judge, after examination of any juror by the court or either side, is of the opinion
that grounds for challenge for cause are present, the judge shall excuse that juror from the trial of the case. If the judge does not excuse a juror for cause, any party may challenge the juror for cause. A challenge to an individual juror must be made before the juror is sworn to try the case, unless the judge permits it to be made after the juror is sworn but before jeopardy has attached. (c) (d)Alternate Jurors. The court may direct that not more than four (4) jurors in addition to the regular jury be called and impanelled to sit as alternate 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 unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath, and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall must be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, and two peremptory challenges if three or four alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these Rules may not be used against an alternate juror.
Rule 24 was amended, effective January 1, 1988; January 17, 1990, on an emergency basis; .
Rule 24 is an adaptation of Rule 24, FRCrimP, and is modified to conform to existing state practice. Rule 24 is intended to insure that a defendant's Sixth Amendment guarantee of an "impartial jury" is protected. To implement this right to an impartial jury, Subdivision (a) permits an examination of prospective jurors to determine whether any juror is biased for or against either party, or whether any juror's status or views are such that bias may be inferred. Others may be challenged peremptorily, but the number of those challenges is limited by Subdivision (b). Subdivision (b) was amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended. Subdivision (a) was modified to allow the continuance of the present practice permitting the examination of jurors by opposing parties or their attorneys and by the court. This differs from the Federal Rule, which gives the court discretion in determining whether it alone should examine prospective jurors or also allow the opposing parties to do so.
A new subdivision (a) was added, effective to provide for a mini-opening statement before voir dire. The existing subdivisions were redesignated accordingly. Subdivision
(a) (b) was amended, effective January 1, 1988, to provide for a uniform jury selection process. However, this procedure is discretionary with the court. Subsection (b) (1) follows existing State law and maintains the number of peremptory challenges allowed under Section 29-17-31, NDCC. (Challenges to prosecution and defendant.) The provision of Subdivision (b) which allows additional peremptory challenges in trials with multiple defendants is an innovation to the present practice.
Under Subsection (b) (1), a peremptory challenge is exercised by a party not in the selection but rather in the rejection of prospective jurors. A peremptory challenge is not aimed at disqualification but is exercised against a qualified trial juror as a matter of grace to the challenger.
The right to peremptory challenges is afforded in aid of securing a fair and impartial jury.
Subsection (b) (2), regarding challenges for cause, is
not in the Federal Rules. It is derived from Sections 29-17-33 through 29-17-40, NDCC, and A.B.A. Standards for Criminal Justice, Trial by Jury, 2.5 (Approved Draft, 1968). This subsection is considered necessary to preclude any question that challenges for cause are a definite part of the examination of jurors. This Rule also obligates the judge to dismiss a juror if grounds for cause exist, thereby avoiding prejudicing other jurors against the attorneys.
Subdivision (c) is taken from
the Federal Rule 24, Fed.R.Crim.P. and replaces Sections 29-17-47 (Alternate jurors, selection-Procedure.) and 29-17-48 (Alternate jurors, oath-Duties.), NDCC. This procedure avoids a mistrial whenever an alternate juror is substituted for a juror who has become disqualified by illness or otherwise before submission of the case to the jury. L. Orfield, Trial Jurors in Federal Criminal Cases [29 F.R.D. 43 at 46 (1962)], points out that the United States Supreme Court had asked the Advisory Committee on Criminal Rules whether the Committee was satisfied as to the constitutionality of substituting an alternate juror after the jury had begun its deliberations.
Supreme Court Conference Minutes of January 17, 1990; September 28, 1987; Procedure Committee Minutes of ; April 20, 1989, page 4; December 3, 1987, page 15; May 21-22, 1987, pages 16-17; February 19-20, 1987, pages 19-20; October 17-20, 1972, pages 12-18; September 26-27, 1968, pages 11-13; Supreme Court Conference Minutes of September 28, 1987, page 5457; FRCrimP, Rule 24; 29 F.R.D. 43, 46 (1962); Wright, Federal Practice and Procedure: Criminal, 381-388 (1969); 8 Moore's Federal Practice, Chapter 24 (Cipes, 2d Ed. 1970); Barron, Federal Practice and Procedure: Criminal, 2130-2136 (1951, 1967 pocket part); A.B.A. Standards for Criminal Justice, Standards Relating to Trial by Jury, 2.5 (Approved Draft, 1968).
SUPERSEDED: 29-17-27, 29-17-28, 29-17-29, 29-17-31, 29-17-32, 29-17-39, 29-17-40, 29-17-41, 29-17-42, 29-17-43, 29-17-47, 29-17-48, 29-21-35, 33-12-21, NDCC.
CONSIDERED: Chapter 27-09.1, 29-17-01, 29-17-02, 29-17-03, 29-17-04, 29-17-05, 29-17-06, 29-17-07, 29-17-08, 29-17-12, 29-17-14, 29-17-15, 29-17-30, 29-17-33, 29-17-35, 29-17-36, 29-17-38, 29-17-44, 29-17-45, 29-17-46, NDCC.
CROSS REFERENCE: 27-09.1, NDCC, Uniform Jury Selection and Service Act.