O.C.G.A. § 15-12-132 (2019)

Annotations

Editor’s notes. - Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: ‘‘This Act shall be known and may be cited as the ‘Jury Composition Reform Act of 2011.’ ’’

Law reviews. - For article surveying developments in Georgia criminal law from mid-1980 through mid-1981, see 33 Mercer L. Rev. 95 (1981).

JUDICIAL DECISIONS Purpose. - This section was added so as to make mandatory the administration of an oath to jurors to compel the jurors to give a truthful answer to questions asked during the voir dire of all cases. Ates v. State, 155 Ga. App. 97, 270 S.E.2d 455 (1980). Failure to adhere to procedure of this section is fatal error, but the record must reflect that this occurred. Whisenhunt v. State, 156 Ga. App. 583, 275 S.E.2d 82 (1980). Oath to be administered before voir dire. - Use of the word ‘‘shall’’ in former Code 1933, §§ 59-704.1 and 59-709 (see now O.C.G.A. §§ 15-12-132 and 15-12-139) and the specification in the latter that the judge or clerk shall administer the oath to the jurors indicate that the legislature intended that the judge be required to administer the oath to the jurors prior to voir dire examination. Ates v. State, 155 Ga. App. 97, 270 S.E.2d 455 (1980). Administration of oath by district attorney. - If the oath was administered

to panels of jurors on voir dire by the district attorney rather than the trial judge in violation of this section, the case will be remanded for retrial, despite defendant’s failure to show any harm as it is no answer to the violation of a mandatory rule to say that the record does not show any harm to have resulted. Ates v. State, 155 Ga. App. 97, 270 S.E.2d 455 (1980). Permitting prosecuting arm of state to administer oath is presumptively prejudicial. Tyson v. State, 150 Ga. App. 569, 278 S.E.2d 150 (1981). Defendant was not deprived of fair trial, prior to the effective date of the section, by prosecutor’s swearing in jury. Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985), aff ’d sub nom. Godfrey v. Kemp, 836 F.2d 1557 (11th Cir.), cert. dismissed, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988), aff ’d sub nom. Godfrey v. Kemp, 836 F.2d 1557 (11th Cir. 1988), cert. dismissed sub nom. Zant v. Godfrey, 487 U.S. 1264, 109 S. Ct. 27, 101 L. Ed. 2d 977 (1988). Administration in defendant’s absence. - Voir dire oath prescribed by

O.C.G.A. § 15-12-132 is not a stage of the trial, and is not a critical stage of the proceedings such as would require reversal based on the defendant’s absence since no motion to have the oath administered to the prospective jurors was timely made. Gilreath v. State, 247 Ga. 814, 279 S.E.2d 650 (1981), cert. denied, 456 U.S. 984, 102 S. Ct. 2258, 72 L. Ed. 2d 862 (1982). Defendant may forfeit defendant’s right to voir dire conducted under oath by failing to timely assert that right. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981); Spivey v. State, 186 Ga. App. 236, 366 S.E.2d 838 (1988). Defendant may forfeit the right to a voir dire conducted under oath by failing to timely assert that right and harm is not presumed from a failure to give the oath required under O.C.G.A. § 15-12-132. Defendant did not receive a new trial after defendant did not show that defendant could have challenged for cause a juror who had untruthfully answered a voir dire question had the juror answered the question truthfully. Taylor v. State, 264 Ga. App. 665, 592 S.E.2d 148 (2003). Failure to give oath. - Absent any showing of actual prejudice, the Court of Appeals is not inclined to reverse a conviction because the voir dire was not conducted under oath since no objection was made below. Gober v. State, 247 Ga. 652, 278 S.E.2d 386 (1981). Since the trial transcript was certified pursuant to O.C.G.A. § 15-14-5, the court must presume that the garbled version of the voir dire oath contained in the transcript truly, completely, and correctly represented the oath actually given by the trial court. However, even if the court presumes that trial counsel was ineffective for failing to object to the improper oath, the defendants failed to show that the defendants were prejudiced by such ineffectiveness. Hargett v. State, 285 Ga. 82, 674 S.E.2d 261 (2009). Pledge of Allegiance. - The United States of America did not prejudice a

non-citizen defendant nor indicate that the jurors were pro-state; rather, a juror’s willingness to recite the Pledge of Allegiance, with its reinforcement of the concepts of ‘‘liberty and justice for all,’’ showed no bias, either for the state, or for one who was charged by the state with a crime, and, in fact, was more likely to remind a juror of his or her obligations in the pursuit of justice. Robles v. State, 277 Ga. 415, 589 S.E.2d 566 (2003). Waiver by failing to object in a timely manner. - Defendant waived the O.C.G.A. § 15-12-132 appellate issue by not timely objecting that the trial court had not given the required oath to the jurors before the voir dire questioning began. Hill v. State, 268 Ga. App. 642, 602 S.E.2d 348 (2004). Driver waived the driver’s objection to the trial court’s failure to put prospective jurors under oath when pre-qualifying the jurors as to any prohibited relationship with an insured’s automobile insurance carrier because the driver knew the prospective jurors were being pre-qualified as to their relationship with the insurance carrier prior to entering the courtroom, yet the driver made no inquiry into whether the jurors were under oath when the jurors were pre-qualified and made no timely objection to the pre-qualifying procedure. Sibley v. Dial, 315 Ga. App. 457, 723 S.E.2d 689 (2012). Cited in Altman v. State, 156 Ga. App. 185, 273 S.E.2d 923 (1980); Hampton v. State, 158 Ga. App. 324, 280 S.E.2d 158 (1981); Aldridge v. State, 158 Ga. App. 719, 282 S.E.2d 189 (1981); Walls v. State, 161 Ga. App. 235, 291 S.E.2d 15 (1982); Godfrey v. Francis, 251 Ga. 652, 308 S.E.2d 806 (1983); Godfrey v. Francis, 613 F. Supp. 747 (N.D. Ga. 1985); Brooks v. Kemp, 762 F.2d 1383 (11th Cir. 1985); Foster v. State, 258 Ga. App. 601, 574 S.E.2d 843 (2002); Mathis v. State, No. A09A0215; No. A09A0308; No. A09A0358, 2009 Ga. App. LEXIS 586 (May 20, 2009); Fedd v. State, 298 Ga. App. 508, 680 S.E.2d 453 (2009).

RESEARCH REFERENCES Am. Jur. 2d. - 47 Am. Jur. 2d, Jury, § 167.

C.J.S. - 50A C.J.S., Juries, § 477. ALR. - Effect of juror’s false or errone-

ous answer on voir dire in personal injury or death action as to previous claims or

actions for damages by himself or his family, 38 ALR4th 267.