Ariz. R. Crim. P. 18.5

As amended through December 8, 2022

Rule 18.5 - Procedure for Jury Selection

(a)Swearing the Jury Panel. Each prospective juror must swear or affirm that the answers provided in response to the case-specific written questionnaire are truthful. Before oral voir dire, each prospective juror must swear or affirm that they will truthfully answer all questions concerning their qualifications.

(b)Explanation of Voir Dire. At the beginning of any written or oral examination, the court must provide information on the purpose of voir dire, how the court and the parties will use the prospective jurors' information, and who may have access to the information prospective jurors provide. Any case-specific written questionnaires used should include this information in an introduction.

(c)Case-Specific Written Questionnaires. Unless the court orders otherwise, the court should require each prospective juror to complete a case-specific written questionnaire in a manner and form approved by the court. The written questionnaire should include questions about the prospective juror's qualifications to serve in the case, any hardships that would prevent the prospective juror from serving, and whether the prospective juror could render a fair and impartial verdict.

(d)Calling Jurors for Examination.The court must conduct voir dire orally. During oral examination, the court may call to the jury box a number of prospective jurors equal to the number to serve plus the number of alternates. Alternatively, and at the court's discretion, all members of the panel may be examined.

(e)Inquiry by the Court; Brief Opening Statements. Before orally examining the prospective jurors, the court must identify the parties and their counsel and, briefly outline the nature of the case The court must then ask any necessary questions about the prospective jurors' qualifications to serve in the case. With the court's permission and before oral voir dire examination, the parties may present brief opening statements to the entire jury panel.

(f)Voir Dire Examination. In courts of record, voir dire examination must be conducted on the record. The court must conduct a thorough oral examination of the prospective jurors and control the voir dire examination. Upon request, the court must allow the parties sufficient time, with other reasonable limitations, to conduct a further oral examination of the prospective jurors. A party's failure to submit questions to the court prior to examination should not be grounds to deny a party the opportunity to conduct an oral examination. Nothing in this rule precludes submitting written questionnaires to the prospective jurors or examining individual prospective jurors outside the presence of other prospective jurors. The court retains the discretion to manage voir dire, including to preclude improper, excessive, or abusive questioning.

(g)Scope of Examination. The court must ensure the reasonable protection of the prospective jurors' privacy. Questioning must be limited to inquiries designed to elicit information relevant to asserting a possible challenge for cause.

(h)Challenge for Cause. Challenges for cause must be on the record and made out of the hearing of the prospective jurors. The party challenging a juror for cause has the burden to establish by a preponderance of the evidence that the juror cannot render a fair and impartial verdict. In making its determination, the court must consider the totality of a prospective juror's conduct and answers given during voir dire as stated on the record by the trial court. If insufficient prospective jurors remain on the list, the court must add a prospective juror from a new panel.

(i)Stipulation to Remove a Prospective Juror for Cause. The court may excuse a prospective juror upon stipulation of the parties that, in their good faith belief, the prospective juror cannot render a fair and impartial verdict..

(j)Selection of Jury; Alternate Jurors.

(1)Trial Jurors. After the completion of the procedures in (g), the prospective jurors remaining in the jury box or on the list of prospective jurors constitute the trial jurors.

(2)Selection of Alternates and Instruction. Just before the jury retires to begin deliberations, the clerk or court official must determine the alternate juror or jurors by lot or stipulation. When the jury retires to deliberate, the alternate or alternates may not participate, but the court must instruct the alternate juror or jurors to continue to observe the admonitions to jurors until the court informs them that a verdict has been returned or the jury has been discharged.

(3)Replacing a Deliberating Juror. If the court excuses a deliberating juror due to the juror's inability or disqualification to perform the required duties, the court may substitute an alternate juror to join the deliberations, choosing the alternate from among the qualified alternates in the order previously designated. If an alternate joins the deliberations, the court must instruct the jury to begin its deliberations anew.

(k)Deliberations in a Capital Case.

(1)Retaining Alternates. In a capital case, alternate jurors not selected to participate in the guilt phase deliberations must not be excused if the jury returns a guilty verdict of first-degree murder. This rule governs their continued participation in the case.

(A) Aggravation Phase. During the aggravation phase, the alternate jurors must listen to the evidence and argument presented to the jury. When the jury retires to deliberate on aggravation, the alternate or alternates may not participate, but the court must instruct the alternates to continue to observe the admonitions to jurors until the court informs the alternates that they are discharged.

(B) Penalty Phase. If the jury returns a verdict finding one or more aggravating factors, the alternate jurors must listen to the evidence and argument presented at the penalty phase. When the jury retires to deliberate on the penalty, the alternate or alternates may not participate, but the court must instruct the alternates to continue to observe the admonitions to jurors until the court informs the alternates that they are discharged.

(2)Replacing a Deliberating Juror.

(A) Generally. If a deliberating juror is excused during either the aggravation or penalty phases due to the juror's inability or disqualification to perform required duties, the court may substitute an alternate juror to join the deliberations, choosing from among the qualified alternates in the order previously designated.

(B) Scope of Deliberations. If an alternate or alternates are substituted during the aggravation or penalty deliberations, the jurors must begin their deliberations anew only for the phase that they are currently deliberating. The jurors may not deliberate anew a verdict already reached and entered.

Ariz. R. Crim. P. 18.5

Added August 31, 2017, effective 1/1/2018; amended Aug.30, 2021, effective 1/1/2022; amended Dec. 8, 2021, effective 1/1/2022; amended August 29, 2022, effective 8/29/2022.

COMMENT [as amendment 2022]

2022 Comment to Rule 18.5(c). To allow the process of challenging jurors for cause to work effectively, Rule 18.5(b) encourages the use of case-specific questionnaires during voir dire where feasible, deferring to the court on the method and manner of their administration. Courts may use paper or electronic questionnaires, administer questionnaires in advance of trial or immediately prior to oral voir dire, or use general or case-specific questions.

1995 Comment Rule 18.5(d) (formerly Rule 18.5(b)) [as amended 2022]. Before a 1995 amendment, Rule 18.5(b) was interpreted to require trial judges to use the traditional "strike and replace" method of jury selection, where only a portion of the jury panel is examined, the remaining jurors being called upon to participate in jury selection only upon excusing for cause a juror in the initial group. A juror excused for cause leaves the courtroom, after which the excused juror's position is filled by a panel member who responds to all previous and future questions of the potential jurors.

As currently drafted, the trial judge is allowed to use the "struck" method of selection if the judge chooses. This procedure is thought by some to offer more advantages than the "strike and replace" method. See T. Munsterman, R. Strand and J. Hart, The Best Method of Selecting Jurors, THE JUDGES' JOURNAL 9 (Summer 1990); A.B.A. Standards Relating to Juror Use and Management, Standard 7, at 68-74 (1983); and "The Jury Project," Report to the Chief Judge of the State of New York 58-60 (1994).

The "struck" method calls for all of the jury panel members to participate in voir dire examination by the judge and counsel.

Whether using strike and replace or the struck method, the rules do not prescribe a method for replacing an excused prospective juror in the juror jury box with a member of the panel, deferring to the court's discretion on the appropriate method.

2022 Comment Rule 18.5(f). When feasible, the court should permit liberal and comprehensive examination by the parties, refrain from imposing inflexible time limits, and use open-ended questions that elicit prospective jurors' views narratively. The court should refrain from attempting to rehabilitate prospective jurors by asking leading, conclusory questions that encourage prospective jurors to affirm that they can set aside their opinions and neutrally apply the law.

HISTORICAL AND STATUTORY NOTES

Former Rule 18.5, relating to procedure for selecting a jury, was abrogated effective January 1, 2018.