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Rule 24 – Trial Jurors

May 14, 2021 | Criminal Procedure, Vermont

(a) Examination of Jurors.

(1) The court at any time may direct the clerk to distribute to prospective jurors written questionnaires to assist the voir dire examination. The voir dire questionnaire shall be prepared by the court administrator and shall solicit relevant information with only such questions as are necessary to empanel fair and impartial jurors. The court may direct the clerk to distribute a more detailed questionnaire in a particular case.
(2) A record of the information provided in response to a written questionnaire distributed pursuant to this rule shall be open to the parties to the proceeding. A physical record of the information shall be open to public inspection after the name and address of the person responding have been redacted. Any electronic record of the information shall not be open to public inspection.
(3) The clerk, or some other indifferent person designated by the court, shall draw the names of twelve prospective jurors who shall be seated in the jury box and examined. The parties or their attorneys shall conduct the examination under the supervision of the court, and the court may ask additional questions to supplement the inquiry, or, upon agreement of the parties, may conduct the examination.
(b) Challenges for Cause. Challenges for cause of individual prospective jurors may be made at any time prior to the impanelment of the jury. When a prospective juror is challenged and excused for cause, a replacement juror shall be drawn, seated, and examined as provided in subdivision (a) of this rule.
(c) Peremptory Challenges.

(1)Manner of Exercise. After twelve prospective jurors have been seated in the jury box and examined, the parties or their attorneys may exercise their peremptory challenges. Such challenges shall be exercised by removing the name of the juror challenged from a list of the prospective jurors prepared by the clerk.
(2)Order of Exercise. Peremptory challenges shall be exercised one by one, alternatively, with the state exercising the first challenge. A challenge not exercised in turn is extinguished. In any action in which there are several defendants the order of challenges shall be as determined by the court.
(3)Number. Each party shall be entitled to six peremptory challenges.
(d) Alternate Jurors.

(1)In General. The court may direct not more than four jurors in addition to the regular jury to be called and impanelled 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 to be unable or disqualified to perform their duties.
(2)Procedure. 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.
(3)Discharging or Retaining Alternate Jurors. An alternate juror who does not replace a regular juror may be discharged after the jury retires to consider its verdict, or the court may retain alternate jurors after the jury retires to deliberate. The court shall ensure that a retained alternate does not discuss the case with anyone until that alternate replaces a juror or is discharged.
(4)Replacement of Jurors after Jury Retires. If, after the jury retires to deliberate, a juror becomes or is found to be unable or disqualified to perform his or her duties and is discharged, the court shall have discretion to replace that juror with a retained alternate. The court may decline to replace a juror even if the failure to do so will cause a mistrial. If an alternate replaces a juror after deliberations have begun, the court shall instruct the jury to begin its deliberations anew.
(5)Peremptory Challenges. Each side is entitled to one peremptory challenge in addition to those otherwise allowed, whenever one or two alternate jurors are to be impanelled, and to two peremptory challenges in addition to those otherwise allowed whenever more than two alternate jurors are to be impanelled. Such additional peremptory challenges may be used against alternate jurors only, and the other peremptory challenges allowed by law shall not be used against an alternate juror.
(e) Alternative Procedure for Replacement Jurors. The court may direct that no more than twelve replacement jurors also be drawn when the original twelve prospective jurors or any alternates are drawn. The replacement jurors shall be examined along with the prospective jurors or alternates. Replacement jurors shall, in the order they were seated, replace prospective or alternate jurors when they have been excused.
(f) Alternate Procedure for Alternate Jurors. The court may direct that between thirteen and sixteen jurors be selected in the manner provided in subdivisions (a)(3), (b), and (c) of this rule. Each party shall then be entitled to seven peremptory challenges if thirteen or fourteen jurors are selected as permitted by this subdivision (f) and to eight peremptory challenges if fifteen or sixteen jurors are selected. Those who are to be alternate jurors will be determined by random selection at the completion of the trial but before submission of the case to the jury for deliberations.

Vt. R. Crim. P. 24

Amended Dec. 8, 1981, eff. March 1,1982; April 13, 1995, eff. July 1, 1995; Oct. 25, 2000, eff. Jan. 1, 2001; June 26, 2002, eff. Sept. 1, 2002; Dec. 18, 2007, eff. Feb. 19, 2008; Nov. 12, 2008, eff. Jan. 12, 2009; Feb. 24, 2010, eff. April 26, 2010.

Reporter’s Notes-2009 Amendment

New Rule 24(f) permits the court to select a sufficient number of jurors to make up both a jury of twelve and between one and four alternates without predetermining the identity of the alternates. Those who are to be designated as alternates would be determined by random selection once the trial is complete but prior to submission of the case to the jury. The parties would be entitled to six peremptory challenges each pursuant to Rule 24(c)(3) and, consistent with Rule 24(d), one additional peremptory challenge if one or two additional jurors are selected and another additional peremptory if three or four additional jurors are selected. Thus, each side would have a total of seven peremptory challenges if thirteen or fourteen jurors are selected and eight peremptories if fifteen or sixteen jurors are selected.

In State v. Lee, 2008 VT 128, ΒΆΒΆ 30-31, the Vermont Supreme Court ruled that this alternative procedure was prohibited by Rule 24(d). By this amendment, that decision is no longer controlling. Experience has shown that juror satisfaction and attention increase if alternates are not predetermined and all sitting jurors understand that they are as likely as any juror to participate in deliberations. Although currently some judges will not directly advise predetermined alternates of their status at the beginning of the trial, experience indicates that the alternates become aware of this predetermination in any event.