Advisory Commission Comments to Rules 47.01-47.03

Advisory Commission Comments

47.01: Prior to the adoption of these Rules, there were no statutory provisions regarding the conduct of voir dire examination. The appellate courts had held that such examination rests generally within the discretion of the trial court. Kennedy v. State, 186 Tenn. 310, 210 S.W.2d 132 (1947), cert. denied, 333 U.S. 846, 68 S. Ct. 659, 92 L. Ed. 1129 (1948). Under this Rule the method and scope of the examination are to be determined by the trial court.

47.02: This Rule omits restrictions found in prior law, T.C.A. §22-237 [repealed], limiting the number of alternate jurors to three and providing for selection of alternates only when it appeared that the trial was likely to be protracted.

Advisory Commission Comment [1995]

The amendment conforms Rule 47.01 to T.C.A. §22-3-101, giving lawyers an “absolute right to examine prospective jurors.”

Advisory Commission Comment [2003]

The new material in the second and third sentences of Rule 47.01 provides two new procedures designed to assist jurors in understanding the proceedings and in protecting their privacy while encouraging juror candor. The new language gives counsel the right to make brief, non- argumentative statements near the beginning of the jury selection process. These statements may be made before selection begins or when counsel is first permitted to ask questions of prospective jurors. During these remarks counsel should introduce themselves and briefly describe the nature of the case. This process should give jurors a better sense of the participants in the trial and the nature of the responsibility the jurors may be chosen to undertake.

The new language also specifically authorizes courts to use individual voir dire of potential jurors when appropriate. It is likely this will occur primarily in cases where potential jurors are questioned about sensitive matters. By substantially reducing the audience present when the juror must answer such questions, jurors should be more candid and feel that their privacy is respected. This rule mirrors existing Criminal Procedure Rule 24(a).

Amended Rule 47.02 permits the trial court to use one of two alternative methods for selecting and impaneling additional jurors in civil cases. The rule parallels the existing system set out in Criminal Procedure Rule 24(e) governing jury trials in criminal cases. In adopting the two alternative methods, Amended Rule 47.02 essentially formalizes current practice in civil cases, under which individual trial courts already use either of these methods.

Rule 47.02(1), the first alternative method, eliminates the distinction between regular and alternate jurors. If the court decides to seat extra jurors in case a regular juror becomes unable to serve, the additional jurors are combined with the other jurors for all purposes during the trial. Thus, if a court decides to use twelve jurors plus two additional jurors, all fourteen jurors are considered to be the jurors during the entire trial. Under this alternative, before the jury retires to deliberate the court will randomly deselect the additional jurors, leaving the desired number of jurors, ordinarily twelve. The deselected jurors are then discharged when the remaining jurors retire to deliberate.

Rule 47.02(2), the second alternative method, provides for the more traditional practice of selecting the regular jurors and then selecting additional jurors, who are designated as alternate jurors. Under this method, an alternate juror would replace a regular juror who becomes unable or disqualified to perform his or her duties; an alternate juror who does not replace a regular juror is discharged when the jury retires to consider its verdict.

Rule 47.02, as amended, also modifies the use of peremptory challenges in the selection of additional jurors by reducing the number of peremptory challenges per additional juror from two to one. The amendment, however, specifically authorizes the practice of “backstriking” by which peremptory challenges, including those authorized for the additional juror(s), may be used against any juror. This procedure should provide lawyers with more flexibility in the exercise of peremptory challenges. Under prior law, the extra challenges could only be used against an alternate juror.

This rule must be read in conjunction with Tenn. Code Ann. § 22-3-105 (Editor’s Note: we believe the correct statute is Tenn. Code Ann. § 22-3-104) , which places a limit on the total number of peremptory challenges in a civil case. Under this statute, each side in a civil case, irrespective of the number of parties on that side, is limited to a maximum of eight peremptory challenges. That maximum number is not changed by additional peremptory challenges for additional jurors. For example, under Tenn. Code Ann. § 22-3-105 a civil plaintiff is entitled to four peremptory challenges. If an additional juror is seated, that plaintiff is now entitled to five peremptory challenges (four under Tenn. Code Ann. § 22-3-105 and one for the additional juror). If there are two plaintiffs, under the statute each is entitled to four peremptory challenges. If the court seats additional jurors, no additional peremptory challenges are given to the two plaintiffs since the statutory maximum of eight peremptory challenges per side has been reached.

The new procedure in Rule 47.03 adopts the procedure long used in Tennessee criminal cases and required by Criminal Procedure Rule 24(c). It provides a well-tried and widely adopted method of exercising peremptory challenges in a way that does not divulge which lawyer excluded the juror. Under this model, lawyers for all parties write their decision whether to exercise a peremptory challenge on a piece of paper, which is given to the judge. The judge then announces the result. No one should be able to detect which lawyer exercised the peremptory challenge. If more than one counsel excludes a particular juror, each counsel is charged with one peremptory challenge. Peremptory challenges may be used against any regular or additional juror, pursuant to Rule 47.02.

Advisory Commission Comment [2018]

The 2018 amendment corrects and outdated statutory cross-reference in the 2003 Advisory Commission Comment; as a result of 2008 Tenn. Pub. Acts, ch. 1159, the statutory limit on peremptory challenges now appears at Tenn. Code Ann. §22-3-104; and so the three cross-references in the penultimate paragraph of the 2003 Advisory Commission Comment now should be to “Tenn. Code Ann. §22-3-104,” instead of to “Tenn. Code Ann. §22-3-105.”