12.5 Jury Selection
A defendant is entitled to a fair and impartial jury. US Const, Am VI ; Const 1963, art 1, § 20 ; Duncan v Louisiana , 391 US 145, 154 (1968). The process by which potential jurors are selected and brought to court is governed by MCL 600.1301 et seq . Generally, the process should be random and result in potential juries that reflect a cross-section of the community. See MCR 2.511(A) . 1
A. Representative Cross-Section
“A defendant has the right to be tried by an impartial jury drawn from a fair cross section of the community.” People v Serges , ___ Mich App ___, ___ (2024) (quotation marks and citation omitted); see also Taylor v Louisiana , 419 US 522, 528 (1975) (holding that a defendant is entitled to a jury which contains a representative cross-section of the community).
“A fair-cross-section claim under the Sixth Amendment requires a defendant to make a prima facie case as set forth by the United States Supreme Court in Duren v Missouri [, 439 US 357 (1979)]. Namely, a defendant must show:
“‘(1) that the group alleged to be excluded is a ‘distinctive’ group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.’” People v Bryant , 491 Mich 575, 581-582 (2012), quoting Duren , 439 US at 364.
“If a defendant successfully establishes a prima facie case by satisfying all three prongs above, it is the State that bears the burden of justifying this infringement by showing attainment of a fair cross section to be incompatible with a significant state interest.” Serges , ___ Mich App at ___ (quotation marks and citation omitted).
The first prong requires a showing of the exclusion of a constitutionally cognizable group. People v Smith , 463 Mich 199, 215 (2000) ( Cavanagh, J. , concurring), 2 aff’d sub nom Berghuis v Smith , 559 US 314 (2010). “For the first prong, the United States Supreme Court identified, at least, ‘women and certain racial groups’ as a ‘distinctive group’ under Duren .” Serges , ___ Mich App at ___, citing Holland v Illinois , 493 US 474, 485 (1990). “Black Americans are a constitutionally cognizable group because they are capable of being singled out for discriminatory treatment, and have been held a distinctive group for jury composition challenges.” Smith , 463 Mich at 215 ( Cavanagh, J., concurring) (citation omitted). See also People v Jackson (On Reconsideration) , 313 Mich App 409, 429-430 (2015) (holding that the defendant “failed to establish a prima facie case for violation of the Sixth Amendment’s fair-cross-section requirement with regard to education level or ties to law enforcement” because he “provide[d] no evidence that persons possessing a certain degree of education or ties to law enforcement, or lacking the same, [were] members of a ‘distinctive’ group in the . . . community”).
“ To establish the second prong, defendant must prove that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community.” Serges , ___ Mich App at ___ (cleaned up). “‘[A] court must examine the composition of jury pools and venires over time using the most reliable data available to determine whether representation is fair and reasonable.’” Serges , ___ Mich App at ___, quoting Bryant , 491 Mich at 599-600.
The United States Supreme Court has not specified a preferred method of measuring underrepresentation. Smith , 463 Mich at 203 (opinion of the Court). The lower federal courts have applied three different methods known as (1) the absolute disparity test, (2) the comparative disparity test, and (3) the standard deviation test. Smith , 463 Mich at 203. The Court in Smith indicated that all three approaches should be considered and that no individual method should be used to the exclusion of the others. Id . at 204. See Bryant , 491 Mich at 603-615, for a detailed analysis of all three methods of determining whether representation of a distinctive group in the jury venire is fair and reasonable.
“[W]hen applying all the relevant tests for evaluating the representation data, a court must examine the composition of jury pools or venires over time using the most reliable data available to determine whether representation of a distinct group is fair and reasonable.” Bryant , 491 Mich at 583. In Bryant , 491 Mich at 587-588, an erroneous setting in the computer program used by Kent County for summoning jurors resulted, over a 15-month period, in jury questionnaires being sent disproportionately to zip codes with smaller African-American populations. The defendant, who was convicted by a jury during this period, raised a fair-cross-section claim, arguing that the jury-selection method had resulted in the underrepresentation of African-Americans appearing for jury duty. Id . at 585. The Court of Appeals agreed and granted the defendant a new trial. People v Bryant , 289 Mich App 260, 275-276 (2010). The Michigan Supreme Court reversed, holding that “[the] defendant did not establish that the representation of African-Americans was not fair and reasonable under the second prong of the Duren [, 439 US at 364,] test[.]” Bryant , 491 Mich at 619. Noting that “ Duren explicitly requires courts to consider the representation of a distinct group in venires [,]” the Court held that “the Court of Appeals wrongly relied on misleading representation data by considering the representation of African–Americans only in [the] defendant’s venire[,]” and that “[t]he use of [an] inadequate sample from only [the] defendant’s venire caused the tests evaluating the degree of any underrepresentation to produce skewed and exaggerated results.” Id. at 582.
Additionally, the Bryant Court concluded that “the Court of Appeals misapplied” the holding in Smith , 463 Mich 199, “that an evaluation of the second [ Duren ] prong requires courts to employ a case-by-case approach that considers all the relevant statistical tests for evaluating the data regarding representation of a distinct group without using any one individual method exclusive of the others.” Bryant , 491 Mich at 582. Instead, “the Court of Appeals, using a skewed result from the comparative-disparity test, elevated this test above the others in precisely the situation in which its use is most criticized—distorting the degree of underrepresentation when the population of the distinct group is small.” Id . at 583. After “consider[ing] the results of these tests using the most reliable data set, which included the composition of jury pools or venires over a three-month period,” the Court concluded that the defendant “failed to show that the representation of African-Americans in the venires at issue was not fair and reasonable.” Id . at 583, 615. 3
The third prong requires a showing that the underrepresentation of the cognizable group is systematic, meaning that it results from some circumstances inherent in the particular selection process. Duren , 439 US at 366. “A systematic exclusion is one that is ‘inherent in the particular jury-selection process utilized.’” Bryant , 491 Mich at 615-616, quoting Duren , 439 US at 366. The defendant “has the burden of demonstrating a problem inherent within the selection process that results in systematic exclusion.” People v Williams , 241 Mich App 519, 527 (2000). It is irrelevant whether the circumstances resulting in underrepresentation were intentional or whether the problem was corrected upon discovery. Bryant , 491 Mich at 616. “[A] ‘bald assertion’ that systematic exclusion must have occurred is insufficient to make out a claim of systematic exclusion[;]” furthermore, a showing of one or two incidences of disproportionate panels is not sufficient to show a systematic exclusion of group members. Williams , 241 Mich App at 526-527 (citation omitted).
“Even if an underrepresentation occurred, such does not necessarily mean that the underrepresentation was caused by a systematic exclusion.” Serges , ___ Mich App at ___. “[T]he primary concern is systematic exclusion in the jury-selection process itself, not various outside factors that might affect how certain groups of people interact with the jury-selection process.” Id . at ___ (quotation marks and citation omitted). In Serges , the defendant argued “that selection of the jury under the procedures used during the COVID-19 pandemic deprived him of his constitutional right to trial by a fair cross section of the community.” Id . at ___ (noting that “defendant claim[ed] that the pandemic, and not the process itself, caused the purported underrepresentation of certain groups in jury venires”). While the Serges Court was “unpersuaded that the jury-selection process in place in this case was not facially neutral,” it acknowledged the “effects of COVID-19 may have caused the alleged disparity in potential jurors.” Id . at ___. “Therefore, even assuming defendant could produce proof of underrepresentation of distinctive groups in venires formed during the pandemic, his claim necessarily fail[ed] because any such underrepresentation occurred as a result of the pandemic itself, an external force, and not a systematic exclusion inherent in the particular jury-selection process utilized.” Id . at ___ (cleaned up).
B. Number of Jurors
The required number of jurors is set by Michigan’s Constitution ( Const 1963, art 1, § 20 ), by statute ( MCL 600.8355 and MCL 768.18) , and by court rule ( MCR 6.410(A) and MCR 6.620(A)) .
A jury that decides a felony case generally must consist of 12 jurors. See MCR 6.410(A) ; MCL 768.18 . MCR 6.410(A) allows the parties to stipulate, with the court’s consent, to have the case decided by fewer than 12 jurors. MCR 6.410(A) provides:
“Except as provided in this rule, a jury that decides a case must consist of 12 jurors. At any time before a verdict is returned, the parties may stipulate with the court’s consent to have the case decided by a jury consisting of a specified number of jurors less than 12. On being informed of the parties’ willingness to stipulate, the court must personally advise the defendant of the right to have the case decided by a jury consisting of 12 jurors. By addressing the defendant personally, the court must ascertain that the defendant understands the right and that the defendant voluntarily chooses to give up that right as provided in the stipulation. If the court finds that the requirements for a valid waiver have been satisfied, the court may accept the stipulation. Even if the requirements for a valid waiver have been satisfied, the court may, in the interest of justice, refuse to accept a stipulation, but it must state its reasons for doing so on the record. The stipulation and procedure described in this subrule must take place in open court and a verbatim record must be made.”
MCR 6.411 and MCL 768.18 authorize a trial judge in a felony case to impanel a jury of more than 12 members. The number of jurors may be reduced to no fewer than 12 if it becomes necessary to excuse any juror during trial. MCL 768.18 . In the event that more than 12 jurors remain when deliberations are to begin, jurors must be randomly excused “to reduce the number of jurors to the number required to decide the case.” MCR 6.411 ; see also MCL 768.18 . Any alternate jurors may be retained during deliberations; the court must “instruct the alternate jurors not to discuss the case with any other person until the jury completes its deliberations and is discharged.” MCR 6.411 . “If an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.”
In misdemeanor cases, the jury must consist of six people. MCL 600.8355 ; MCR 6.620(A) . However, the judge may impanel seven or more potential jurors, excusing any additional jurors randomly in order to reduce the jury to six members for deliberations. MCR 6.620(A) . Any alternate jurors may be retained during deliberations; the court must “instruct the alternate jurors not to discuss the case with any other person until the jury completes its deliberations and is discharged.” Id . “If an alternate juror replaces a juror after the jury retires to consider its verdict, the court shall instruct the jury to begin its deliberations anew.” Id .
C. Identity of Jurors
Jurors drawn for jury service are required to complete a juror personal history questionnaire as adopted by the State Court Administrator. MCR 2.510(A)-(B) . 4 Access to juror personal history questionnaires is governed by MCR 2.510(C)(2) . Juror qualifications questionnaires are confidential except as ordered by the chief circuit judge. MCL 600.1315 . The attorneys must be given a reasonable opportunity to examine the jurors’ questionnaires before being called on to challenge for cause. MCR 2.510(C)(2) .
It is permissible to use juror numbers instead of names at trial. Williams , 241 Mich App at 522, 525. However, the use of an anonymous jury is potentially prejudicial, and should only be employed when jurors’ safety or freedom from undue harassment is an issue. Id . at 525. In the case of an anonymous jury, appropriate safeguards should be followed to ensure a fair trial. Id . “[T]o successfully challenge the use of an ‘anonymous jury,’ the record must reflect that the parties have had information withheld from them, thus preventing meaningful voir dire, or that the presumption of innocence has been compromised.” Id . at 523.
“[T]he press has a qualified right of postverdict access to juror names and addresses, subject to the trial court’s discretion to fashion an order that takes into account the competing interest of juror safety and any other interests that may be implicated by the court’s order.” In re Disclosure of Juror Names and Addresses , 233 Mich App 604, 630 (1999). “For example, a trial court might act to protect juror privacy by precluding jurors from revealing the statements other jurors made during deliberation.” Id. at 630 n 9.
Voir dire is the process by which litigants may question prospective jurors so that challenges may be intelligently exercised. People v Harrell , 398 Mich 384, 388 (1976). The court has broad discretion to limit or preclude voir dire by the attorneys. Id . “The function of voir dire is to elicit sufficient information from prospective jurors to enable the trial court and counsel to determine who should be disqualified from service on the basis of an inability to render decisions impartially.” People v Sawyer , 215 Mich App 183, 186 (1996).
“(1) Scope and Purpose. The scope of voir dire examination of prospective jurors is within the discretion of the court. It should be conducted for the purposes of discovering grounds for challenges for cause and of gaining knowledge to facilitate an intelligent exercise of peremptory challenges. The court should confine the examination to these purposes and prevent abuse of the examination process.
(2) Conduct of the Examination . The court may examine prospective jurors or permit the attorneys for the parties to do so. If the court examines the prospective jurors, it must permit the attorneys for the parties to
(a) ask further questions that the court considers proper, or
(b) submit further questions that the court may ask if it considers them proper.
On its own initiative or on the motion of a party, the court may provide for a prospective juror or jurors to be questioned out of the presence of the other jurors.”
Generally, closing the courtroom during the jury selection process is a violation of the right to a public trial and constitutes a structural error. Weaver v Massachusetts , 582 US 286, 298 (2017) (noting that there are exceptions, and “[t]hough these cases should be rare, a judge may deprive a defendant of his right to an open courtroom by making proper factual findings in support of the decision to do so”).
“[T]here is no right to any specific procedure for engaging in voir dire.” Sawyer , 215 Mich App at 191. “There is no right to have counsel conduct voir dire or to individual, sequestered voir dire[,]” and the trial court may refuse to ask prospective jurors specific questions submitted by counsel as long as the voir dire conducted by the court is sufficient to seat an impartial jury. Id . However, the trial court’s discretion over the voir dire process is not unlimited. For example, a trial court may not restrict the scope of voir dire to the degree that the parties are unable to develop a factual basis for the intelligent exercise of their peremptory challenges. People v Tyburski , 196 Mich App 576, 581 (1992), aff’d 445 Mich 606 (1994). In Tyburski , the defendant was denied a fair trial because “the trial court’s voir dire of the prospective jurors was a perfunctory exercise rather than a probing inquiry that would be necessary in a highly publicized case to enable counsel to obtain sufficient information necessary to make an informed decision to exercise a challenge to a juror, either for cause or peremptorily.” Id . at 591.
“Under the presumption of innocence, guilt must be determined solely on the basis of the evidence introduced at trial rather than on official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.” People v Serges , ___ Mich App ___, ___ (2024) (quotation marks and citation omitted). “[P]rospective jurors’ answers to questions [during voir dire] about their personal beliefs [did not constitute] extraneous evidence” that had “a real and substantial possibility that . . . could have affected the jury’s verdict.” People v Haynes , 338 Mich App 392, 415 (2021) (quotation marks and citation omitted). See Section 12.13(C) for more information on extraneous evidence.
When information potentially affecting a juror’s ability to act impartially is discovered after the jury has been sworn and the juror is allowed to remain on the jury, the defendant may be entitled to relief on appeal if the defendant can establish that the juror’s presence on the jury resulted in actual prejudice. People v Miller , 482 Mich 540, 561 (2008). “[T]he proper inquiry is whether the defendant was denied his right to an impartial jury. If he was not, there is no need for a new trial.” Id .
1. Ch allenges for Cause
A prospective juror is subject to challenge for cause on any ground set out in MCR 2.511(E) , 5 or for any other reason recognized by law. MCR 6.412(E) . “The parties may challenge jurors for cause, and the court shall rule on each challenge.” MCR 2.511(E) .
MCR 2.511(E) provides, in relevant part:
“It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror; [ 6 ]
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be;
(4) has opinions or conscientious scruples that would improperly influence the person’s verdict;
(5) has been subpoenaed as a witness in the action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a criminal case based on the same transaction;
(8) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys;
(9) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney;
(10) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution;
(11) has a financial interest other than that of a taxpayer in the outcome of the action;
(12) is interested in a question like the issue to be tried.
Exemption from jury service is the privilege of the person exempt, not a ground for challenge.” 7
Jurors are presumed to be qualified, competent, and impartial, and the burden of proving the existence of a disqualification is on the party alleging it. See People v Miller , 482 Mich 540, 550 (2008); People v Collins , 166 Mich 4, 9 (1911); see also People v Lee , 212 Mich App 228, 250 (1995); People v Walker , 162 Mich App 60, 63 (1987). If, however, “after the examination of any juror, the court finds that a ground for challenging a juror for cause is present, the court on its own initiative should, or on motion of either party must, excuse the juror from the panel.” MCR 6.412(D)(2) . See also MCR 2.511(D) ; MCL 600.1337; Walker , 162 Mich App at 64.
A defendant is not entitled to relief where, even if the trial court erred in denying the defendant’s challenge to a prospective juror for cause, the defendant failed to exhaust his or her peremptory challenges. People v Legrone , 205 Mich App 77, 81-82 (1994).
“A juror who expresses an opinion referring to some circumstance of the case which is not positive in character, but swears he [or she] can render an impartial verdict, may not be challenged for cause.” People v Roupe , 150 Mich App 469, 474 (1986); see MCL 768.10 . See also People v Jendrzejewski , 455 Mich 495, 515-519 (1997) (holding that the defendant was not deprived of a fair trial where two jurors who were actually seated had formed an earlier opinion, but “were adamant [during voir dire] that any previous opinion that they might have had was completely set aside and that they could definitely be fair and impartial”); People v Serges , ___ Mich App ___, ___ (2024) (holding that a brief statement by a potential juror—a deputy sheriff—”regarding defendant being in jail did not affect the fairness of defendant’s trial or undermine the presumption of innocence equivalent to being required to go through an entire trial dressed in jail garb”).
“A four-part test is used to determine whether an error in refusing a challenge for cause merits reversal[:]
“There must be a clear and independent showing on the record that (1) the court improperly denied a challenge for cause, (2) the aggrieved party exhausted all peremptory challenges, (3) the party demonstrated the desire to excuse another subsequently summoned juror, and (4) the juror whom the party wished later to excuse was objectionable.” Lee , 212 Mich App at 248-249.
2. Peremptory Cha llenges
A juror who is peremptorily challenged is excused without cause. MCR 2.511(F)(1) . 8 In a criminal case in which the offense is not punishable by life imprisonment, a defendant tried alone is entitled to five peremptory challenges. MCR 6.412(F)(1) ; MCL 768.12(1) . Similarly, if two or more defendants are being jointly tried for an offense not punishable by life imprisonment, each defendant is entitled to five peremptory challenges. MCR 6.412(F)(1) ; MCL 768.12(1) . The prosecutor is entitled to five peremptory challenges when a defendant is tried alone, and when two or more defendants are tried together, the prosecutor is entitled to the total number of challenges to which all the defendants are entitled. MCR 6.412(F)(1) ; MCL 768.12(1) . On motion and a showing of good cause, the court may grant one or more of the parties an increased number of peremptory challenges; it is unnecessary for the additional challenges granted by the court to be equal for each party. MCR 6.412(F)(2) ; MCL 768.12(2) .
If the offense charged is punishable by life imprisonment, a defendant being tried alone is entitled to 12 peremptory challenges. MCR 6.412(F)(1) ; MCL 768.13(1) . In cases in which two or more defendants are being tried jointly for offenses punishable by life imprisonment, the number of peremptory challenges varies with the number of defendants being tried. See MCR 6.412(F)(1) and MCL 768.13(1)(a)-(d) . A defendant may be granted an increased number of peremptory challenges for good cause, and where more than one defendant is being tried, the number of additional challenges granted by the court may result in an unequal number of challenges allowed each defendant. MCR 6.412(F)(2) ; MCL 768.13(3) . The prosecutor is permitted 12 peremptory challenges in cases involving a single defendant and an offense punishable by life imprisonment; if multiple defendants are being tried jointly for an offense punishable by life imprisonment, the prosecutor is entitled to the total number of challenges allowed all defendants being tried. MCR 6.412(F)(1) ; MCL 768.13(2) .
Peremptory challenges must be exercised as follows:
“(a) First the plaintiff and then the defendant may exercise one or more peremptory challenges until each party successively waives further peremptory challenges or all the challenges have been exercised, at which point jury selection is complete.
(b) A ‘pass’ is not counted as a challenge but is a waiver of further challenge to the panel as constituted at that time.
(c) If a party has exhausted all peremptory challenges and another party has remaining challenges, that party may continue to exercise their remaining peremptory challenges until such challenges are exhausted.” MCR 2.511(F)(3) .
In a case cognizable by the district court, “[e]ach defendant is entitled to three peremptory challenges. The prosecutor is entitled to the same number of peremptory challenges as a defendant being tried alone, or, in the case of jointly tried defendants, the total number of peremptory challenges to which all the defendants are entitled.” MCR 6.620(B) . A party may be granted an increased number of peremptory challenges upon a showing of good cause, and the additional challenges need not be equal for each party. Id.
“The right to exercise peremptory challenges in state court is determined by state law,” and “the mistaken denial of a state-provided peremptory challenge does not, without more, violate the Federal Constitution.” Rivera v Illinois , 556 US 148, 152, 158 (2009) (holding that the trial court’s erroneous denial of the defendant’s peremptory challenge did not require automatic reversal of the defendant’s first-degree murder conviction where all of the jurors ultimately seated were qualified and unbiased). “If a defendant is tried before a qualified jury composed of individuals not challengeable for cause, the loss of a peremptory challenge due to a state court’s good-faith error is not a matter of federal constitutional concern.” Id. at 157.
The “erroneous denial of a defendant’s peremptory challenge is subject to automatic reversal when the error is preserved and no curative action is taken.” People v Yarbrough , ___ Mich ___, ___ (2023). In Yarbrough , “it [was] readily apparent that the trial court’s practice of restricting peremptory challenges to newly seated prospective jurors ran afoul of [ MCL 768.13 , MCR 2.511(H) , and MCR 6.412 ].” Yabrough , ___ Mich at ___ (noting “there is no dispute that the trial court erred”).
3. Discrimination During Voir Dire: Batson Challenges
The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination during voir dire. Batson v Kentucky , 476 US 79 (1986). The Sixth Amendment also requires that a jury venire be drawn from a fair cross-section of the community. Smith , 559 US at 319. Additionally, MCR 2.511(G) 9 provides:
“(1) No person shall be subjected to discrimination during voir dire on the basis of race, color, religion, national origin, or sex.
(2) Discrimination during voir dire on the basis of race, color, religion, national origin, or sex for the purpose of achieving what the court believes to be a balanced, proportionate, or representative jury in terms of these characteristics shall not constitute an excuse or justification for a violation of this subsection.”
In Batson , 476 US at 96-98, the United States Supreme Court set out a three-step process for determining the constitutional propriety of a peremptory challenge. The Michigan Supreme Court explained the process in People v Knight , 473 Mich 324, 336 (2005), habeas corpus gtd Rice v White , 660 F3d 242 (CA 6, 2011) 10 :
“First, the opponent of the peremptory challenge must make a prima facie showing of discrimination. [ 11 ] To establish a prima facie case of discrimination based on race, the opponent must show that: (1) he [or she] is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant considerations raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race. . . .
Second, if the trial court determines that a prima facie showing has been made, the burden shifts to the proponent of the peremptory challenge to articulate a race-neutral explanation for the strike. Batson’s second step ‘does not demand an explanation that is persuasive, or even plausible.’ Rather, the issue is whether the proponent’s explanation is facially valid as a matter of law. ‘A neutral explanation in [this] context . . . means an explanation based on something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.’
Finally, if the proponent provides a race-neutral explanation as a matter of law, the trial court must then determine whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination. It must be noted, however, that if the proponent of the challenge offers a race-neutral explanation and the trial court rules on the ultimate question of purposeful discrimination, the first Batson step (whether the opponent of the challenge made a prima facie showing) becomes moot.” Knight , 473 Mich at 336-338 (internal citations omitted).
“[T]rial courts must meticulously follow Batson’s three-step test,” and the Michigan Supreme Court “ strongly urge[s] [trial] courts to clearly articulate their findings and conclusions on the record.” Knight , 473 Mich at 339.
For the first Batson step (prima facie showing of discrimination), the trial court “must first find the facts and then must decide whether those facts constitute a prima facie case of discrimination under Batson and its progeny.” Knight , 473 Mich at 342. This step presents “a mixed question of fact and law that is subject to both a clear error (factual) and a de novo (legal) standard of review” on appeal. Id .
For the second Batson step (race-neutral explanation), the trial court must only be “concerned with whether the proffered reason violates the Equal Protection Clause as a matter of law.” Knight , 473 Mich at 343-344. “ Batson ’s second step does not demand articulation of a persuasive reason, or even a plausible one; ‘so long as the reason is not inherently discriminatory, it suffices.’” People v Tennille , 315 Mich App 51, 63 (2016) (citation omitted). On appeal, the second Batson step is subject to de novo review. Knight , 473 Mich at 343-344.
For the third Batson step (pretext/purposeful discrimination), the trial court must determine whether the opponent of the peremptory challenge has satisfied the ultimate burden of proving purposeful discrimination, which largely turns on factual findings involving credibility; this step is therefore subject to appellate review for clear error. Knight , 473 Mich at 344-345. “In making a finding at step three, the trial court is required to assess the plausibility of the race-neutral explanation ‘in light of all evidence with a bearing on it.’” Tennille , 315 Mich App at 64 (citation omitted). “Step three of the Batson inquiry involves an evaluation of the prosecutor’s credibility,” and “race-neutral reasons for peremptory challenges often invoke a juror’s demeanor (e.g., nervousness, inattention)[;] . . . [i]n this situation, the trial court must evaluate not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Snyder v Louisiana , 552 US 472, 477 (2008). A pretextual explanation by the prosecution gives rise to an inference of discriminatory intent. Id . at 484-485.
In Snyder , the trial court allowed the prosecutor to strike a black juror for the proffered race-neutral reasons that the juror looked nervous and that, because of a student-teaching obligation, the juror might return a lesser guilty verdict (which would obviate the need for a penalty phase) in order to fulfill his jury duty more quickly. Snyder , 552 US at 478. The United States Supreme Court noted that the record did not support a conclusion that the trial judge made any determination regarding the juror’s demeanor, and that the prosecution’s second proffered reason was implausible and, therefore, pretextual. Id . at 479-485. The Court held that the trial court clearly erred in overruling the defendant’s Batson objection to the prosecutor’s strike of the juror:
“In other circumstances, . . . once it is shown that a discriminatory intent was a substantial or motivating factor in an action taken by a state actor, the burden shifts to the party defending the action to show that this factor was not determinative. . . . We have not previously applied this rule in a Batson case, and we need not decide here whether that standard governs in this context. For present purposes, it is enough to recognize that a peremptory strike shown to have been motivated in substantial part by discriminatory intent could not be sustained based on any lesser showing by the prosecution.” Snyder , 552 US at 485.
There is no requirement that a trial judge, in ruling on an objection to a peremptory challenge under Batson , 476 US 79, reject a demeanor-based explanation for the challenge unless the judge personally observed and recalls the aspect of the prospective juror’s demeanor on which the explanation is based. Thaler v Haynes , 559 US 43, 44, 47-49 (2010). However, “[e]ven if the trial court did not personally observe [the demeanor of a stricken juror], the court ‘has a pivotal role’ in evaluating whether the prosecutor’s demeanor, and any pertinent surrounding circumstances, belie that a strike was race neutral[;]” the trial court must make a factual determination regarding a stricken juror’s demeanor, and, in the absence of such findings, it cannot be presumed “‘that the trial judge credited the prosecutor’s assertion’ that the juror[] reacted in a certain fashion.” Tennille , 315 Mich App at 70-71 (quoting Snyder , 552 US at 477, 479, and distinguishing Haynes , 559 US 43).
“[T]he trial court committed two serious Batson errors” when it “failed to afford defense counsel an opportunity to rebut the prosecutor’s stated reason for dismissing [two African-American] jurors” and failed to make any “findings of fact regarding whether the prosecutor’s justification for the strikes[, i.e., the jurors’ show of disgust in reaction to another juror’s assertions that he would give a police officer’s testimony more credence than that of another witness,] seem[ed] credible under all of the relevant circumstances, including whether the jurors actually exhibited the expressions claimed and whether the averred reactions were the real reasons for the strikes.” Tennille , 315 Mich App at 62. “The court made no effort to entertain argument from defense counsel regarding whether the [peremptory strikes were] racially motivated despite the prosecutor’s articulation of a race-neutral ground,” but instead perfunctorily “stated that it ‘accepted’ the prosecutor’s explanation as ‘a valid race neutral reason’ and denied the challenge[; t]his premature conclusion of the Batson inquiry reflects that the trial court misapprehended defense counsel’s role in the Batson process and overlooked the inalterable need for factual findings.” Tennille , 315 Mich App at 68. Because “[the] record [did] not permit a conclusion that the prosecutor’s stated reason for the strikes was nondiscriminatory,” it was necessary to “remand to the trial court for an evidentiary hearing during which the trial court [was required to] conduct the third-step [ Batson ] analysis it omitted at [the] defendant’s trial.” Tennille , 315 Mich App at 71, 73.
Defense counsel’s use of “a peremptory challenge to exclude . . . a pregnant, African-American woman” “was not inherently discriminatory, [and survived] plaintiff’s Batson challenge” where the “case involved the tragic death of a seven-month-old baby,” and “[t]he questions that defense counsel asked during voir dire show[ed] that he was trying to impanel a jury that would put aside emotions when deciding the case.” Carlsen Estate v Southwestern Mich Emergency Servs, PC , 338 Mich App 678, 690, 691, 692 (2021) (defense counsel “asked at least seven potential jurors—male and female—whether they made decisions based more on emotion or on logic”). “Furthermore, defense counsel exercised only two peremptory challenges, both of which were used on jurors who admitted to varying degrees that emotions might affect their deliberations” and “[d]efense counsel’s exercise of peremptory strikes [did] not show a pattern of striking jurors on the basis of their gender . . . but on counsel’s estimation of whether there were any indications that a juror, for whatever reason, might not view the facts of the case with the level of dispassion desired by the defense.” Id . at 692.
A prosecutor’s use of a peremptory challenge to excuse the only black juror in a jury pool does not automatically constitute a prima facie showing of discrimination or discrimination as a matter of law; rather, “[t]he defendant must offer facts that at least give rise to an inference that the prosecutor had a discriminatory purpose for excluding the prospective juror.” People v Armstrong , 305 Mich App 230, 238-239 (2014) (citing Johnson v California , 545 US 162, 168 (2005), and Knight , 473 Mich at 336-337, and holding that no constitutional violation occurred where the excused juror had childcare issues which were detailed on the record, and, although no other prospective jurors were excused, none of them “expressed similar issues”).
In order to ensure the equal protection rights of individual jurors, a trial court may sua sponte raise a Batson issue after observing a prima facie case of purposeful discrimination through the use of peremptory challenges. People v Bell , 473 Mich 275, 285-287 (2005).
It is important to note the distinction between a Batson error and a denial of a peremptory challenge: a Batson error occurs when a juror is actually dismissed on the basis of race or gender, whereas a denial of a peremptory challenge on other grounds amounts to the denial of a statutory or court-rule-based right to exclude a certain number of jurors. Bell , 473 Mich at 293. A Batson error is of constitutional dimension, and is subject to automatic reversal, whereas an improper denial of a peremptory challenge is not of constitutional dimension, and is reviewed for a miscarriage of justice if it is preserved, or for plain error affecting substantial rights if it is unpreserved. Bell , 473 Mich at 293-295.
E. Removal or Substitution of a Juror at Trial
A trial court has discretion to replace a deliberating juror with an alternate juror. MCR 6.411 ; People v Mahone , 294 Mich App 208, 215-218 (2011) (holding that the trial court did not abuse its discretion in removing a juror during deliberations, and the defendant was not denied a fair trial by the juror’s replacement with an alternate juror rather than the granting of a mistrial; the record showed that the removed juror was unable to continue deliberations due to physical and emotional stress, that the alternate juror complied with instructions not to discuss the case or review any media about the case, and that the jury was properly instructed to begin deliberations anew as required by MCR 6.411) ; People v Tate , 244 Mich App 553, 559-560 (2001) (the trial court properly excused a juror who developed a medical condition after deliberations had begun and replaced that juror with a dismissed alternate juror who had not acquired any extraneous information about the case). See also MCL 768.18 (“[s]hould any condition arise during the trial of the cause which in the opinion of the trial court justifies the excusal of any of the jurors . . . from further service, [the court] may do so and the trial shall proceed, unless the number of jurors be reduced to less than 12”).
“[W]hile a defendant has a fundamental interest in retaining the composition of the jury as originally chosen, he [or she] has an equally fundamental right to have a fair and impartial jury made up of persons able and willing to cooperate, a right that is protected by removing a juror unable or unwilling to cooperate.” Tate , 244 Mich App at 562. “Removal of a juror under Michigan law is therefore at the discretion of the trial court, weighing a defendant’s fundamental right to a fair and impartial jury with [the] right to retain the jury originally chosen to decide his [or her] fate.” Id . Once a juror is replaced, the judge must instruct the reconstituted jury to begin deliberations anew. Id . at 567; MCR 6.411 .
“[T]o establish good cause for the removal of a juror under MCR 6.411 , it must be established that one of the reasons in MCR 2.511(E) exists or that another ‘reason recognized by law’ exists.” People v Caddell , 332 Mich App 27, 42 (2020). The reasons set forth in MCR 2.511(E)(2)-(3) are “essentially unrelated to the jury’s deliberative process”; “[t]herefore, in order to determine their applicability, a court need not discover the extent of a juror’s participation in deliberations.” Caddell , 332 Mich App at 42. A trial court “should be more cautious in investigating juror misconduct during deliberations than during trial, and should be exceedingly careful to avoid any disclosure of the content of deliberations. Id . at 46 (quotation marks and citation omitted). “Such an investigation may be conducted via careful juror questioning or any other appropriate means.” Id . “This investigation must be carefully circumscribed to protect the secrecy of deliberations, and to protect the defendant’s state constitutional right to a unanimous verdict, but not so limited that it would preclude a fair determination of whether a juror is deliberating as required by law.” Id . at 47.
See Section 12.14(C) for information on the removal of a juror for refusing to deliberate.
F. Substitution of Judges After Voir Dire
“It is far preferable that a single judge preside over all aspects of a trial.” People v McCline , 442 Mich 127, 134 (1993). However, if a judge is substituted after voir dire, but before opening statements and the introduction of proofs, automatic reversal is not required; rather, prejudice must be shown to justify reversal. Id.
1 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [ MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A) .
2 The majority opinion in People v Smith , 463 Mich 199 (2000) ( Corrigan, J. ), “join[ed] parts I through II(A) and part II(C)(2) of the concurring opinion, but part[ed] company with [the concurrence] on the analysis of the second prong of Duren .” Smith , 463 Mich at 203.
3 However, see Ambrose v Booker , 684 F3d 638, 641, 645-649 (CA 6, 2012) (holding that three federal habeas petitioners, who were convicted by jury in Kent County during the period in which the computer program for summoning jurors contained an error, had established cause to excuse their procedural defaults, because “the factual basis for the claim—the computer glitch—was not reasonably available to counsel, and [the] petitioners could not have known that minorities were underrepresented in the jury pool by looking at the venire panel []”).
4 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [ MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A) .
5 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [ MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A) .
“To qualify as a juror, an individual must meet all of the following criteria:
(a) Be a citizen of the United States, 18 years of age or older, and a resident in the county for which the individual is selected, and in the case of a district court in districts of the second and third class, be a resident of the district.
(b) Be able to communicate in the English language.
(c) Be physically and mentally able to carry out the functions of a juror. Temporary inability must not be considered a disqualification.
(d) Not have served as a petit or grand juror in a court of record during the preceding 12 months.
(e) Not have been convicted of a felony.”
7 “An individual who is a participant in the address confidentiality program created under the address confidentiality program act . . . may claim exemption from jury service for the period during which the individual is a program participant.” MCL 600.1307a(4) . To obtain an exemption, “the individual must provide the participation card issued by the department of attorney general upon the individual’s certification as a program participant to the court as evidence that the individual is a current participant in the address confidentiality program.” Id .
8 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [ MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A) .
9 “Except as otherwise provided by the rules in [Subchapter 6.400 of the Michigan Court Rules], MCR 2.510 and [ MCR] 2.511 govern the procedure for selecting and impaneling the jury.” MCR 6.412(A) .
10 In Knight , 473 Mich at 352, the Michigan Supreme Court held that Batson, 476 US 79, was not violated in the jury selection at the joint trial of the two defendants, Jerome Knight and Gregory Rice. In Rice , 660 F3d at 253, 257-260, the Sixth Circuit Court of Appeals affirmed the federal district court’s grant of a conditional writ of habeas corpus to codefendant Rice and vacated his conviction under 28 USC 2254(d)(2) , holding that “the Michigan Supreme Court’s adjudication of [Rice’s] Batson claim was based on the court’s unreasonable factual determination that the trial judge did not discredit the prosecutor’s proffered race-neutral reasons for the exercise of her peremptory strikes.” However, the legal principles cited by Knight , 473 Mich at 335-348, were not implicated by the Sixth Circuit’s decision in Rice , 660 F3d 242, and they remain good law. See Rice , 660 F3d at 253-254 (reiterating the Batson process detailed in Knight , 473 Mich at 335-338).
11 In the first Batson step, the opponent of the challenge is not required to actually prove discrimination. Knight , 473 Mich at 336. As long as the sum of the proffered facts gives rise to an inference of discriminatory purpose, the first Batson step is satisfied. Knight , 473 Mich at 336-337.