Staff Note (July 1, 2009 Amendments)

Prior to 2006, Crim. R. 24 appeared to require judges to empanel a prospective jury and examine each one individually, a process referred to as the “strike and replace” method. In 2006, Crim. R. 24 was amended with the intent to clarify that examination of prospective jurors in an array (sometimes referred to as the “struck” method of juror examination) was also permitted. Crim. R. 24(E) however, which was not changed in 2006, retained language that arguably applied only to examination of jurors seated on a panel. The 2009 amendments add language to Crim. R. 24(E) and delete language from Crim. R. 24(E) to further clarify that prospective jurors may be examined either in the array or after being seated on a panel.

Staff Note (July 1, 2008 Amendment)

Criminal Rule 24 is amended in order to give trial judges the option of retaining alternate jurors during the deliberation process in non-capital cases. The judge would have the option of retaining the alternate or alternates who would be sequestered from the rest of the jurors during deliberation, and if one of the regular jurors is unable to continue deliberations, to replace the juror with the alternate and instruct the jury to begin its deliberations anew.

The proposed amendments do not change the requirement in the current rule that alternate jurors be retained during the guilt phase of capital case deliberations. Under former Crim. R. 24, however, an alternate juror could not substitute for a juror unable to continue during deliberations. The proposed amendments allow trial judges in capital cases, as well as non-capital cases, the option of retaining alternates during any deliberations and substituting an alternate in the middle of deliberation.

Staff Note (July 1, 2006 Amendment)

Crim. R. 24 is amended to recognize the existence of alternative methods of jury selection and expressly permit the use of these methods in Ohio courts. The amendments are consistent with recommendations contained in the February 2004 Report and Recommendations of the Supreme Court of Ohio Task Force on Jury Service, at pp. 10-11.

The Task Force on Jury Service identified two primary methods of jury selection and encouraged the use of a selection process that is efficient and enhances juror satisfaction. The Rules Advisory Committee learned that some judges and lawyers believe that the pre-2006 version of Crim. R. 24 precluded the use of a selection method, commonly referred to as the “struck” method, whereby prospective jurors are examined as a group and then the trial judge and attorneys meet privately to challenge jurors for cause and exercise peremptory challenges. Two amendments to Crim. R. 24 are added to expressly permit alternative selection methods. Crim. R. 24(C), (F), and (G) also are revised to correct erroneous cross-references resulting from the 2005 amendments to the rule.

Rule 24(B) Examination of prospective jurors

The last sentence of Crim. R. 24(B) is added to expressly permit the examination of prospective jurors in an array. The rule differs slightly from the corresponding provision in Civ. R. 47 by requiring that the court provide the parties with timely notice, at anytime prior to trial, of the intent to conduct an examination of prospective jurors in an array. The Rules Advisory Committee is of the opinion that pretrial notice to the parties in criminal cases is necessary to comport with constitutional requirements.

Rule 24(E) Manner of exercising peremptory challenges

The last sentence of Civ. R. 24(E) is added to expressly afford the trial court the discretion to allow the exercise of challenges for cause and peremptory challenges outside the hearing of the jury.

Staff Note (July 1, 2005 Amendment)

Crim. R. 24 is amended to reflect four recommendations of the Task Force on Jury Service. See Report and Recommendations of the Supreme Court of Ohio Task Force on Jury Service (February 2004).

Rule 24(A) Brief introduction of case

A new Crim. R. 24(A) is added to permit the trial judge, prior to jury selection, to provide a brief introduction to the case to persons called as prospective jurors. See Report and Recommendations, supra, at 1 (recommending “a brief statement of the case by the court or counsel prior to the beginning of voir dire” and inclusion of “the legal claims and defenses of the parties’ in the list of instructions the court may give at the commencement of trial”). The Rules Advisory Committee shares the views of the Task Force that the preliminary statement may “help the jury selection process run smoothly” and “increase the satisfaction of jurors.” Report and Recommendations, supra, at 9. The preliminary statement is intended to help prospective jurors to understand why certain questions are asked during voir dire, recognize personal bias, and give candid responses to questions during voir dire.

The Committee recognizes that there may be instances in which the brief introduction is unnecessary; thus the rule vests discretion with the trial judge as to whether an introduction will be provided in a particular case. The rule also requires the trial judge to consult with the parties as to whether to provide the introduction and the content of the introduction. The consultation is required in recognition that the parties can aid the trial judge in determining whether a statement is necessary and developing the content of the statement.

Unlike its counterpart in the Civil Rules [Civ. R. 47(A) ], Crim. R. 24(A) does not contain language indicating that “[t]he brief introduction may include a general description of the legal claims and defenses of the parties.” The Committee recommends this distinction given the unique nature of criminal cases. For example, if the statement given prior to voir dire referred to a potential claim of an alibi, the jury could draw an inappropriate inference from the defendant’s subsequent decision to not offer any evidence of an alibi. For this reason, the Committee believes the opening statement in criminal cases should be more limited in scope.

Former divisions (A) through (G) of Crim. R. 24 are relettered to reflect the addition of new division (A).

Rule 24(E) Manner of exercising peremptory challenges

New Crim. R. 24(E) (formerly Crim. R. 24(D) ) is amended to make two related principles regarding peremptory challenges more clear. One principle is that failure of a party to exercise a given peremptory challenge waives that challenge but does not waive any other peremptory challenges to which the party may otherwise be entitled.

The other principle is that consecutive passes by all parties or sides waives all remaining peremptory challenges. The Task Force concluded that, contrary to the language and intent of former Crim. R. 24(D), “often courts and attorneys will assume that once a peremptory challenge is waived all remaining peremptory challenges are waived.” Report and Recommendations, supra, at 22. The amended language is designed to deter the incorrect assumption perceived by the Task Force.

Rule 24(I) Taking of notes by jurors

A new Crim. R. 24(I) is added to explicitly authorize trial courts, after providing appropriate cautionary instructions, to permit jurors who wish to do so to take notes during trial and to take notes into deliberations. The Rules Advisory Committee agrees with the Task Force that allowing jurors to take notes potentially promotes the fact-finding process and aids juror comprehension and recollection.

The reference in sentence one of new division (I) to “appropriate cautionary instructions” reflects the apparent requirements of State v. Waddell, 75 Ohio St.3d 163 (1996), which held that “[a] trial court has the discretion to permit or prohibit note-taking by jurors,” Waddell, 75 Ohio St.3d at 163 (syl. 1), and explained that “[i]f a trial court determines that a particular case warrants note-taking, the court can, sua sponte, furnish jurors with materials for taking notes and instruct the jurors that they are permitted to take notes during the trial.” Id. at 170. The Waddell opinion appears to condition the permitting of note-taking on the giving of instructions to jurors that (1) “they are not required to take notes;” id. (syl. 2), (2) “their notes are to be confidential;” (3) “note-taking should not divert their attention from hearing the evidence in the case;” (4) “a juror who has not taken notes should not be influenced by those jurors who decided to take notes;” and (5) “notes taken by jurors are to be used solely as memory aids and should not be allowed to take precedence over their independent memory of facts.” Id. (syl. 3); see also State v. Blackburn, 1996 WL 570869 at *3 and n.1, No. 93 CA 10 (5th Dist. Ct. App., Fairfield, 9-26-96) (finding no plain error in the trial court’s decision to permit juror note-taking despite lack of instruction on items (3) through (5) but noting that “in the future, it would be better practice for trial courts to instruct and caution the jury as suggested by the Ohio Supreme Court in Waddell“); cf. 1 Ohio Jury Instructions 2.52, § 1 (“Note-taking Prohibited”) and § 2 (“Note-taking Permitted”) (2002). The Task Force noted that many of the judges who participated in the pilot project that it sponsored “instructed jurors to make notes only when there was a break in the testimony (e.g., while judge and attorneys are busy at sidebar).” Report and Recommendations, supra, at 14.

Sentence two of new division (I) explicitly authorizes a practice perhaps only implicitly approved in Waddell, i.e., the carrying into deliberations by a juror of any notes taken pursuant to permission of the court. See Markus, Trial Handbook for Ohio Lawyers § 37:6 (2003) (citing Waddell for the proposition that “[w]hen the court permits the jurors to take notes during the trial, it may allow the jurors to retain those notes during their deliberations”).

The requirement of sentence three of new division (I) that the court require that all juror notes be collected and destroyed promptly after verdict reflects in part the Waddell prescription that “notes are to be confidential.” See also State v. Williams, 80 Ohio App.3d 648, 654 (1992) (cited with apparent approval by the Court in Waddell and rejecting the argument that notes taken by jurors should have been preserved for review rather than destroyed).

Rule 24(J) Juror questions to witnesses

A new Crim. R. 24(J) is added to set forth a procedure to be followed if the trial court permits jurors to propose questions to be asked of witnesses during trial. See Report and Recommendations, supra, at 15-16 and State v. Fisher 99 Ohio St.3d 127, 2003-Ohio-2761. The rule incorporates the holding of the Supreme Court in State v. Fisher, supra, by stating that the practice of allowing jurors to propose questions to witnesses is discretionary with the trial judge, and codifies procedures that have been sanctioned by the Supreme Court in Fisher. See State v. Fisher 99 Ohio St.3d at 135. In addition to the procedures outlined in Fisher, the rule provides that the court must retain a copy of all written questions proposed by the jury for the record and that the court may rephrase any question proposed by the jury before posing it to a witness. These added procedures ensure the existence of a proper record, should an issue regarding juror questions be raised on appeal, and recognize that a question proposed by a juror may need to be rephrased for clarity, admissibility, or other reason appropriate under the circumstances.

The amendments to Crim. R. 24 also include nonsubstantive changes that include gender-neutral language and uniform usage of the term “prospective juror.”

Staff Note (July 1, 2002 Amendment)

Criminal Rule 24 Trial Jurors

Criminal Rule 24(A), (B), (C), (D), and (E)

Throughout divisions (A) – (E), masculine references were changed to gender-neutral language, the style used for rule references was changed, and other grammatical changes were made. No substantive amendment to any of these divisions was intended.

Criminal Rule 24(F) Alternate jurors

The amendment effective July 1, 2002 divided division F of the previous rule into divisions (F)(1) and (F)(2). Division (F)(1) [Non-capital cases] contains the substance of previous division (F), plus the inclusion of an exception for capital cases. Division (F)(2) [Capital cases] was added to permit alternate jurors in capital murder cases to continue to sit as alternate jurors after a guilty verdict has been rendered. If an alternate juror replaces a regular juror for the penalty phase of the trial, the trial judge shall instruct the alternate juror that the alternate juror is bound by the guilty verdict.