Chapter 6 Challenges to Jurors During Trial

• Library: Picking a Civil Jury: A Guide for Illinois Trial Lawyers (2015 Ed.)

CHAPTER 6 - CHALLENGES TO JURORS DURING TRIAL

"Alternate jurors, in the sequence in which they are ordered into the jury box, shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable to perform their duties."
735 ILCS 5/2-1106(b).

Once the jurors and the alternates have been selected, the trial judge will administer the oath and ensure that the record reflects the administration.¹ The Judge, deputy clerk, or court reporter may administer the oath. Special forms of oath apply in eminent domain and drainage assessment cases pursuant to 735 ILCS 30/10-5-40 and 70 ILCS 605/5-9.

Once the jury is impaneled, you may challenge a juror for cause if information arises to indicate the he or she should be discharged. The general rule is that discharge of a juror is a matter within the discretion of the trial judge and actual prejudice must be shown to justify reversal.² In Lowe v. Norfolk & Western Railroad,³ the Appellate Court considered the propriety of three challenges to the trial court's discharge of jurors. One juror was annoying another juror by constantly speaking to him during the trial. The trial judge also observed the juror hitting other jurors and "making expressions to them." The Lowe court found the discharge of this juror to be proper. The second instance of misconduct by a juror was a bit more complex. Hearsay evidence was presented to the trial court that the juror had discussed the case with others and expressed that he would not vote for the plaintiff. The Appellate Court found, however, that no efforts were made to influence a juror, and therefore the discharge of the juror was held to be reversible error. In the third instance, the trial court discharged a juror after deliberations had begun and after the jury had reported reaching an impasse but was sent home for the evening with instructions to return the next day for continued deliberations. A "semi-hysterical" juror reported that she could not continue with deliberations. No effort was made by the trial judge to ascertain whether the juror's emotional condition was the result of coercion or whether it "grew out of the deliberation process." After the juror was excused, only 11 remained. The defendant moved for a mistrial, the motion was denied, and the jury later returned a verdict for the plaintiffs totaling $57,967,000.

In holding that the discharge of this third juror was improper, the Lowe court held that an "emotionally upset" juror should not be excused without the court first making inquiry as to whether she was "pressured, coerced or harassed to vote against her conscience."⁴Therefore, the trial court abused its discretion by failing to make such an inquiry.

It is also worth noting that if a juror's relationship with a party's family member is revealed during trial, this will not serve as a basis for...