Chapter 47 Jurors

• Library: South Carolina Civil Procedure (SCBar) (2020 Ed.)

Chapter 47 Jurors Rule 47¹

(a) Examination of Jurors. The court may permit the parties or their attorneys to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event, the court shall permit the parties or their attorneys to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions submitted by the parties or their attorneys as it deems proper.

(b) Alternate Jurors. The court may direct that not more than six jurors in addition to the regular petit jury panel be called and impaneled 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 or are found 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 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 impaneled, two peremptory challenges if three or four alternate jurors are to be impaneled, and three peremptory challenges if five or six alternate jurors are to be impaneled. The additional peremptory challenges may be used only against an alternate juror and the other peremptory challenges allowed by law shall not be used against an alternate juror.

(c) Separation of Jury. If it appears that the jury deliberations may extend into the night, the court may order that the jury be taken to suitable sleeping quarters for the night; and on the following morning they shall resume their deliberations. The jury shall be kept together and separate from the public, and as far as practicable during all times shall be under the surveillance of the bailiffs. Any juror or jurors may be separated for the night from any other juror or jurors. There shall be no communication with any member of the jury by any third person, and the jury shall be fully protected from any outside influence.

Note:

These Rules 47(a) and (b) are substantially the present Federal Rule. They represent no material change from present State practice, and are consistent with Code §§ 14-7-390, 14-7-1020, 14-7-1120 and 14-7-1340. Rule 47(c) is added to preserve Circuit Court Rule 80.

A. Introduction

Article I, § 14 of the South Carolina Constitution preserves the right to a jury trial but does not define the details of jury procedure. The legislature has promulgated statutes and the court has enacted rules governing the jury.² Juror qualifications are set by statute.³ The selection of a jury venire⁴ and the impaneling of a jury for a particular case also are governed by statute.⁵ By tradition, the party with the primary burden of proof sits next to the jury.⁶

The skillful use of challenges for cause or peremptory challenges requires knowledge of the jurors. Some information can be gained by voir dire, but contact with jurors or potential jurors by an attorney or one acting on his behalf are strictly controlled and generally prohibited. Some pretrial investigation is permitted but is limited to the juror's age, race, employment, civic associations, children, marital, family and prior litigation experience.⁷ Direct contact with jurors or their family before trial is prohibited.⁸ Lawyers should avoid talking with jurors during the trial,⁹ and post-trial contact is at the lawyer's peril.¹⁰

B. Voir Dire

Rule 47 gives the trial judge discretion to examine prospective jurors or permit the attorneys to do the voir dire. By statute and upon motion of either party, the judge must examine a potential juror on oath "to know whether he is related to either party, has any interest in the cause, has expressed or formed any opinion, or is sensible of any bias or prejudice therein . . . A juror who fails to answer questions during voir dire is subject to contempt.¹² A stockholder or a member of an electric co-operative has an inherent conflict and cannot sit on any case where the corporation or co-operative is a party.¹³

The parties may supplement the judge's questions, but the judge decides which questions are posed to the jury.¹⁴ The scope of the voir dire is controlled by the court.¹⁵ A party dissatisfied with the examination of a juror must request permission to ask additional questions or risk waiving that objection.¹⁶

The trial judge's decision on the scope of voir dire will be reversed on appeal only for an abuse of discretion.¹⁷ The Supreme Court did reverse one case, however, when the jurors were questioned about whether they would limit verdicts to reduce insurance rates. The question brought the inherently prejudicial issue of insurance into the case.¹⁸ It also reversed a judgment when the trial court refused to inquire into a juror's relationship with the attorney for one of the parties.¹⁹

An improperly conducted voir dire deprives counsel of relevant information and may affect the exercise of challenges for cause and peremptory challenges. Objections to jurors must be made before the juror is impaneled or charged with the trial of the proceedings.²⁰

The failure of a juror to respond truthfully to voir dire may support a new trial. Intentional concealment occurs when the question presented to the jury on voir dire is reasonably comprehensible to the average juror and the subject of the inquiry is of such significance that the juror's failure to respond is unreasonable.²¹Unintentional concealment, on the other hand, occurs where the question posed is ambiguous or incomprehensible to the average juror, or where the subject of the inquiry is insignificant or so far removed in time that the juror's failure to respond is reasonable under the circumstances.²² The Supreme Court upheld a new trial for a criminal defendant when a juror intentionally concealed her work as a volunteer victim advocate in the solicitor's office, and the concealed information would have supported a challenge for cause or would be a material factor in exercising a peremptory challenge.²³

The intentional concealment of critical information supports the inference that the juror is not impartial, and a showing of prejudice is not required. Prejudice is required if the failure to disclose is not material or if it was unintentional.²⁴ The determination whether the concealment was intentional or unintentional is fact intensive and is made on a case by case basis.²⁵ The same test has been applied in civil cases.²⁶

C. Alternate Jurors

Rule 47(b) describes the procedure for impaneling alternate jurors. Alternates are drawn in the same manner as the original jurors, must meet the same standards, must take the same oath, and have the same powers as the jurors they replace.²⁷ Alternates sit near the jury panel so as to have the same opportunities for seeing and hearing the proceedings in the case.²⁸ Alternates replace sitting jurors in the order in which the alternates were selected.²⁹ Unneeded alternates are dismissed when the jury retires to deliberate.

Additional peremptory challenges are available when selecting alternates. One additional peremptory challenge is added if there are one or two alternates; two, if there are three or four alternates; and three peremptory challenges if there are five or six alternates.³⁰ These peremptory challenges may be used only when selecting alternates.

D. Challenges to Jurors

1. Challenges for Cause

A challenge for cause asserts that the juror cannot render a fair and impartial verdict for a particular reason. S.C. Code Ann. § 14-7-1070 (2017) requires that the parties make all objections for cause before proceeding to peremptory challenges. The decision to excuse a juror for cause³¹ is within the court's discretion.³²

A juror is not automatically excused merely because questions are raised about him. The judge must find that the juror is unable to render a fair and just verdict. The juror's assertion of neutrality may be persuasive evidence. Thus, the defendant's physician's treatment of some jurors was not cause where each said that he or she was capable of rendering a fair and impartial verdict to all parties.³³ The court, however, is not required to accept the juror's assertions of impartiality.³⁴

2. Peremptory Challenges

A peremptory challenge is one exercised without articulating a reason, and often one exercised without a reason. Each side has four peremptory challenges. The procedure is set forth in S.C. Code Ann. § 14-7-1050 (2017). The clerk lists twenty jurors. The plaintiff strikes a juror by number, and the parties alternate strikes until twelve jurors remain.

The strikes are exercised by side rather than by party.³⁵ In multiparty litigation, the strike by side procedure forces parties with different interests to share peremptory challenges. In one case, a party defending against a corporation's claim shared its challenges with the corporation's sole shareholder.³⁶ The rule is difficult to apply. For example, in another case, the driver of one car and his passenger sued the other driver. The passenger then asserted a cross-claim against his driver. Should the passenger have all the strikes because he was the plaintiff against both drivers, or should the passenger and his driver share as plaintiff against the second driver who was a defendant against both claimants (despite the fact that the passenger was suing his driver) against the other driver? The trial court awarded the passenger and his driver four strikes against the second driver who exercised three. The Supreme Court disapproved but found that the sharing of peremptory challenges was not error because the passenger as plaintiff had more...