In Oro-Jimenez v. Com., 412 S.W.3d 174 (Ky. 2013), the Kentucky Supreme Court considered a challenge in a criminal case to the voir dire process used in jury selection in Jefferson County. The Court described that process as involving questioning of the entire gallery of potential jurors summoned for the trial, with each side’s peremptory challenges used against the gallery as a whole, as opposed to a panel of jurors selected from that gallery to be questioned, with peremptory challenges used for that smaller group.
The Court, applying the palpable error review standard since the alleged error was not raised below, noted that the procedure used in Jefferson County did not comply with Kentucky court procedures and rules. However, the Court concluded that the procedure was “not a substantial deviation from the proper method” and did not warrant reversal absent a showing of prejudice. Nevertheless, while the Court determined that the non-compliant process had not prejudiced the defendant in this particular case, the Court noted that in the proper case a defendant could possibly show prejudice from the method employed in Jefferson County. Needless to say, a contrary ruling would have called into question all convictions obtained in Jefferson County criminal cases that had used that non-compliant jury selection method.
Under Kentucky court procedures issued by the Administrative Office of the Courts and under the civil and criminal rules, the number of jurors to be drawn from the gallery during the jury selection process should be the number of the jury (12 in circuit court) plus the number of alternate jurors to be seated plus the total number of peremptory challenges to be exercised. Thus, in a hypothetical civil case in circuit court with two defendants who are entitled to separate peremptories under CR 47.03 and with two alternates to be seated, the number should be 26 — consisting of 12 jurors plus two alternates plus four peremptory strikes for the plaintiff and four peremptories each (for a total of eight) for the two defendants. (In criminal cases, under RCr 9.40 the number of peremptory challenges is eight for each side, plus one if one or more alternates are to be seated.) After the court and counsel conduct voir dire, and after the parties have accepted the panel for cause, the parties then exercise their peremptory challenges simultaneously to only the panel of 26, not to the entire gallery.
It will be interesting to see if the Court’s holding causes the traditional jury selection method used in Jefferson County (also used, the author is told, in the United States District Court for the Western District of Kentucky) that was described in the Oro-Jimenez decision to be changed.
David V. Kramer is a Partner in the law firm of Dressman Benzinger LaVelle, with offices in Cincinnati, Ohio, Crestview Hills, Kentucky, and Louisville, Kentucky
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