Section 21.10 For Cause

• Library: Criminal Practice 2012 Supp

A. (§21.10) For Cause

Section 494.470.3, RSMo 2000, provides:

All challenges for cause may be tried by the court on the oath of the person challenged or on other evidence and such challenges shall be made before the juror is sworn. If the cause of challenge be discovered after the juror is sworn and before any part of the evidence is delivered, the juror may be discharged or not in the discretion of the court.

Any juror disqualified under the terms of the statutes cited in §21.9 above may be challenged for cause. It is error for the court to fail to sustain a valid challenge for cause. State v. Smith, 649 S.W.2d 417 (Mo. banc 1983). But the error is reversible only if the challenged person actually serves on the jury. Section 494.480.4, RSMo 2000. A juror must be disqualified if the juror has not been impaneled according to law. See State ex rel. Woods v. Connett,525 S.W.2d 326 (Mo. banc 1975).

The cause for the challenge must be specified, State v. Forsha, 88 S.W. 746 (Mo. 1905), and must be made by the defendant or the right is waived, State v. Tash, 528 S.W.2d 775 (Mo. App. W.D. 1975).

A challenge to the qualifications of a juror may be denied as untimely if it is made after the jury is sworn unless false answers were given or deceptions otherwise practiced as to matters actually inquired into on voir dire. State v. Crawford, 416 S.W.2d 178 (Mo. 1967). In this event, due diligence of the defendant and the defendant’s counsel must be shown. State v. Schleicher, 442 S.W.2d 19 (Mo. 1969). The defendant must show that the defendant’s rights were prejudiced and that a substantial injustice resulted. State v. Robinson, 484 S.W.2d 186 (Mo. 1972). An adequate evidentiary record must also be made. An unverified statement in a motion for new trial is not sufficient; the matter must be proved by testimony or affidavit. State v. Childers,268 S.W.2d 858 (Mo. 1954).

It should be noted that, if counsel for the defendant announces, after voir dire, that the panel is “satisfactory” or “accept[s]” the jurors, counsel waives the right to present any challenge for cause thereafter. State v. Turnbough, 498 S.W.2d 567 (Mo. 1973). Turnbough further suggests that a motion to quash the panel is also necessary to preserve the record on challenges for cause. But see State v. Brown,547 S.W.2d 797, 805 (Mo. banc 1977) (that part of the Turnbough decision that requires that a motion to quash be filed in order to preserve “specific objections made during voir dire to questions asked by the other party or to preserve for review the trial court’s ruling refusing to permit proposed questions to be asked of the panel” was overruled). Brown also holds that a question of the...