The court summons a separate panel of jurors for each capital case. The court determines the number of jurors to be summoned based on the number of defendants, the estimated length of the trial, the pretrial publicity, and other information pertinent to the number likely to be needed to obtain a jury. If additional jurors are needed, they are randomly drawn from the regular panel.96.1
Prospective jurors receive summonses containing the name of the defendant(s), the nature of the charge(s), the estimated length of the trial, an instruction not to read or listen to anything about the case in the news or discuss the case with anyone, along with any other information or instructions that the assigned judge determines will aid in the selection of the jury.96.2
Shortly before the panel is schedule to report for service, the court makes a list of the names of those jurors who have not been disqualified, excused or excluded, giving each juror a randomly generated number. Each juror gets a written notice of their number, and is instructed not to disclose their number to anyone.96.3
The court then determines the order in which jurors will be individually examined by randomly drawing their numbers in open court and in the presence of the parties after the presiding judge’s opening statement to the panel at the beginning of the trial. A list is made of the names and corresponding numbers of the jurors in the order in which the jurors were drawn for individual examination. The court then schedules the jurors’ appearance for individual examination. If groups of jurors are scheduled at designated times for that purpose, the identity of the jurors in each group is kept confidential insofar as practicable. The name of each juror scheduled for individual examination is disclosed to the parties only after the examination of the preceding juror has been completed.96.4
Criminal defendants in capital cases have a right to have prospective jurors questioned individually in order to determine intelligently who should be challenged for cause and who should be challenged peremptorily.97 Each prospective juror must be asked under the direction of the court if he or she has formed any opinion as to the guilt or innocence of the accused. A juror who has formed or expressed an opinion about a case is disqualified unless the juror states to the court’s satisfaction that, notwithstanding such opinion, the juror is able to render an impartial verdict upon the evidence and the law. Each prospective juror must also be asked whether he or she has conscientious scruples against finding a verdict of guilty in a case where the punishment is death, even if the evidence warrants it. A prospective juror is disqualified if that juror has conscientious scruples against finding a verdict of guilty in a case where the punishment is death, even if the evidence so warrants.98
To eliminate the potential for compromising the random nature of jury selection in cases where there is individual voir dire, the order in which the individual prospective jurors are to be called is kept confidential.99 Usually, the name of each prospective juror is pulled blindly from a container. When the name of the first juror pulled is announced, he or she is asked to step into the jury box and be sworn. The court conducts the examination of the potential jurors, although the court may permit the attorneys to supplement the examination or may itself ask questions submitted by counsel if the court deems them to be proper. Questions proposed by counsel must be submitted to the court in writing and served on the other parties before the beginning of the drawing of the jury or at such other time as ordered by the court. Where the need for an additional question arises during the course of the examination, the court may permit it. At the conclusion of the examination, the juror may be challenged for cause. If the challenge is denied, the defendant may be called upon to exercise or decline to exercise a peremptory challenge or to rest content. The State is then called upon to do the same. Announcing that a party is content does not constitute the exercise of a peremptory challenge. If the challenge for cause is upheld or if a peremptory challenge is exercised, the juror is asked to step out of the box and returns to the pool. Otherwise, the juror remains in the case. The same procedure is followed as to each of the other jurors, but alternating as to the party required to exercise the first challenge.100
In capital criminal cases, the State is entitled to twelve peremptory challenges, and the defendant or defendants are entitled to twenty peremptory challenges.101 If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly. For good cause shown, the court may grant the parties such additional peremptory challenges as the court, in its discretion, deems appropriate. Any requests for additional challenges must be made before the beginning of the drawing of the jury or at such earlier time as is ordered by the court.102 Each side is entitled to one additional peremptory challenge if one or two alternate jurors are to be impaneled, two additional peremptory challenges if three or four alternate jurors are to be impaneled, and three additional peremptory challenges if five or six alternate jurors are to be impaneled. These additional peremptory challenges may be used against alternate jurors only, and the other peremptory challenges may not be used against an alternate juror.103
96.1. Superior Court Special Jury Plan for Capital Cases.
96.2. Superior Court Special Jury Plan for Capital Cases.
96.3. Superior Court Special Jury Plan for Capital Cases.
96.4. Superior Court Special Jury Plan for Capital Cases.
97. Dawson v. State, 581 A.2d 1078, 1090 (Del. 1990), vacated on other grounds, remanded, 499 U.S. 946 (U.S. 1992). Individual voir dire is also recommended for non-capital cases involving possible exposure to prejudicial information. Id. at 1090 n.12; Hughes v. State, 490 A.2d 1034, 1043 n.7 (Del. 1985).
98. 11 Del .C. § 3301. See also Manley v. State, 709 A.2d 643, 654 (Del. 1997), cert. denied 525 U.S. 893 (1998); Jackson v. State, 684 A.2d 745, 748-49 (Del. 1996), cert. denied, 520 U.S. 1171 (1997); Hobbs v. State, 538 A.2d 723, 725-26 (Del. 1988); Hooks v. State, 416 A.2d 189, 194-95 (Del. 1980); Steigler v. State, 277 A.2d 662, 667 (Del. 1971), vacated on other grounds, 408 U.S. 939 (1972).
99. Super. Ct. Cr. R. 24(a); Robertson v. State, 630 A.2d 1084, 1092 (Del. 1993).
100. Super. Ct. Cr. R. 24(b)(3)(A).
101. Super. Ct. Cr. R. 24(b)(1); Juror Management Order, Standard 9(d)(i).
102. Super. Ct. Cr. R. 24(b)(2).
103. Super. Ct. Cr. R. 24(c).
© 2010 David L. Finger