Proposed Staff Note (2019 Amendment)

Division (D)

The amendment divides the prior, undivided Division (D) into two parts.

The language of the existing rule addressing the selection and powers of alternate jurors, including the language relating to the procedure for selecting alternate jurors and the use of peremptory challenges in the selection of alternate jurors, is moved, unchanged, to Division (D)(1).

Division (D)(2) retains the language of the existing rule permitting the court, in its discretion, to retain alternate jurors when the jury retires to deliberate, but also adds a provision addressing a situation not addressed by the existing rule – the recalling of alternate jurors who are discharged after the jury retires to deliberate. The amendment specifically prohibits the court from recalling discharged alternate jurors.

Retention. A retained alternate juror has not been discharged. A retained (i.e. not “discharged”) alternate juror continues to be subject to the court’s instructions and admonitions, and thus may not discuss the case with anyone “until that alternate replaces a juror or is discharged.” The rule does not address whether a “retained” alternate juror may be free to leave – a matter left to the court’s discretion – but good practice suggests that the court ensure that a retained alternate juror remain readily available to appear before the court to replace an alternate juror if necessary.

Discharge. “Discharge” occurs when the court does not retain, but instead “discharges” an alternate juror. A discharged (i.e. not “retained”) alternate juror cannot be recalled as a juror.

Staff Note (July 1, 2012 Amendment)

Civ.R. 47(D) is amended to parallel Crim.R. 24(C) (1), the alternate juror rule for non-capital cases. The difference between the two rules is that six alternates are permitted under the criminal rule.

Staff Note (July 1, 2009 Amendment)

Prior to 2006, Civ. R. 47 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, Civ. R. 47(B) 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. Civ. R. 47(C), however, which was not changed in 2006, retained language that arguably applied apply only to examination of jurors seated on a panel. The 2009 amendments add language to Civ. R. 47(B) and delete language from Civ. R. 47(C) to further clarify that prospective jurors may be examined either in the array or after being seated on a panel.

Staff Note (July 1, 2006 Amendment)

Civ. R. 47 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 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 Civ. R. 47 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 Civ. R. 47 are added to expressly permit alternative selection methods.

Rule 47(B) Examination of prospective jurors

The last sentence of Civ. R. 47(B) is added to expressly permit the examination of prospective jurors in an array

Rule 47(C) Challenges to prospective jury

The last sentence of Civ. R. 47(C) 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)

Civ. R. 47 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 47(A) Preliminary statement of case

A new Civ. R. 47(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, developing the content of the statement, and ascertaining the claims and defenses the parties will put forth during trial.

Former divisions (A), (B), and (C) of Civ. R. 47 are relettered as divisions (B), (C), and (D), respectively.

Rule 47(C) Challenges to prospective jurors

New Civ. R. 47(C) (formerly Civ. R. 47(B) ) is amended to make two related principles regarding peremptory challenges more clear. One principle is that failure of a party to exercise a given peremptorychallenge waives that challenge but does not waive any other peremptory challenges to which the party may otherwise be entitled. As the 1972 Staff Notes to Civ. R. 47 explained:

Thus, assume that plaintiff waives [plaintiff’s] first opportunity to exercise a peremptory challenge. Defendant exercises [defendant’s] first peremptory challenge. If plaintiff, in turn, now exercises a peremptory challenge, the challenge will be [plaintiff’s] second challenge because [plaintiff] has waived [plaintiff’s] first challenge.

The other principle is that consecutive passes by all parties or sides waives all remaining peremptory challenges. As the 1972 Staff Notes likewise pointed out, “a double pass’ ends the procedure even though peremptory challenges might remain.” The Task Force concluded that, contrary to the language and intent of former Civ. R. 47(B), “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 47(E) Taking of notes by jurors

A new Civ. R. 47(E) 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 (E) 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 (E) 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 (E) 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 47(F) Juror questions to witnesses

A new Civ. R. 47(F) 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. 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, to address an objection from a party, or for some other reason appropriate under the circumstances.

The amendments to Civ. R. 47 also include nonsubstantive changes that include gender-neutral language and uniform usage of the term “prospective juror.”