12.15 - VII. Procedure For Exercising Challenges

• Jurisdiction: New York

VII. PROCEDURE FOR EXERCISING CHALLENGES

After each party has had the opportunity to question jurors during the voir dire, the court generally will ask counsel for a sidebar conference. At this time, opposing counsel will each be offered the opportunity to challenge any prospective juror, first for cause and then, if no challenge for cause is offered or the challenge is disallowed by the court, peremptorily. Up until at least January 19, 2010, this sidebar conference was on the record but held outside the presence, or at least the hearing, of the jury panel with the presence of the defendant. On the above date, the Supreme Court decided that the Sixth Amendment’s public trial right applies to the voir dire of prospective jurors.¹⁹²⁵ If both sides agree that the prospective juror is acceptable, the court will swear the juror.¹⁹²⁶ Once a juror has been sworn, neither party can exercise a peremptory challenge against the juror. However, a challenge for cause grounded upon facts not known to the challenging party prior to the juror being sworn may be made.¹⁹²⁷

A so-called paddle may be used to comply for peremptory-challenge purposes. Insert or clip each prospective juror’s card on the paddle. Each side may exercise a peremptory challenge by removing a card(s) in open court. The court may then call out the names of those excused. Challenges for cause by their nature must be handled openly in the courtroom.

A trial judge may not close a courtroom to the public because every seat will be occupied by potential jurors. A concern that an identified spectator might influence them is no ground to exclude the spectator. There must be more than these two factors standing by themselves. “Absent a specific threat that a spectator may influence a prospective juror, it [is] improper to close the courtroom for that reason.”¹⁹²⁸ The court must make a finding of fact on the record that threats of improper communications with jurors or safety concerns are concrete enough to warrant closing voir dire to the public.¹⁹²⁹ The need for judicial efficiency and the conservation of judicial resources does not trump the constitutional right to a public trial. The court’s discretion to monitor admittance to the courtroom as circumstances require to prevent overcrowding or accommodate limited seating capacity “does not extend to excluding specific members of the public from the courtroom.”¹⁹³⁰ Rather, judges must take every reasonable measure to accommodate public attendance at trials...