Challenge at time of trial.

- Composition of jury can be brought into issue by challenge to array at the time of trial. Georgia v. Birdsong, 428 F.2d 1223 (5th Cir. 1970).

Challenge to array is objection to all jurors collectively because of some defect in the panel as a whole. Bryan v. State, 124 Ga. 79, 52 S.E. 298 (1905).

Challenge to the poll is one peremptory or for cause addressed to an individual juror, while a challenge to the array is a challenge or objection to all of the jurors collectively because of some defect in the panel as a whole, such as, for example, that the names of the jurors were drawn from the grand jury box, or were not drawn in open court or some other reason running to the whole of the panel. Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973), cert. denied, 419 U.S. 877, 95 S. Ct. 140, 42 L. Ed. 2d 117 (1974).

Challenge to array differs from challenge to the poll, in that the latter is directed solely to an individual juror. Humphries v. State, 100 Ga. 260, 28 S.E. 25 (1897).

Rules regarding challenges to the array apply to both felony and misdemeanor cases. Thompson v. State, 109 Ga. 272, 34 S.E. 579 (1899); Whitworth v. State, 155 Ga. 395, 117 S.E. 450 (1923).

This section furnishes sole remedy for objecting to the entire panel. Ivey v. State, 4 Ga. App. 828, 62 S.E. 565 (1908); Williams v. State, 31 Ga. App. 173, 120 S.E. 131 (1923).

If the panel does not contain the requisite number of jurors when the panel is put upon the defendant, this section is defendant's sole remedy; defendant may challenge the array. Felker v. Johnson, 53 Ga. App. 390, 186 S.E. 144 (1936); Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973), cert. denied, 419 U.S. 877, 95 S. Ct. 140, 42 L. Ed. 2d 117 (1974).

Fair cross section requirement applicable to jury lists does not extend to ensure that the jury array itself likewise represents a fair cross section of the community to the fullest extent possible. Williams v. State, 213 Ga. App. 458, 444 S.E.2d 831 (1994).

Determination of census data to be used for jury array.

- Defendant's fair cross-section challenge to the jury array, under the Sixth Amendment, was denied because the balancing of cognizable groups to match the then most recent Decennial Census, instead of a more recent U.S. Census Bureau's 2008 American Community Survey, was justified by a sufficiently-significant state interest. Greene v. State, 312 Ga. App. 666, 722 S.E.2d 77 (2011), cert. denied, No. S12C0516, 2012 Ga. LEXIS 670 (Ga. 2012).

No objection to array if challenge is to individual jury members.

- If there is objection to individual members of the panel of jurors, the challenge should be to the poll, and not to the array. Thompson v. Buice, 162 Ga. 556, 134 S.E. 303 (1926).

Challenge confined to four jurors is not broad enough to vitiate array, although otherwise good. Blackman v. State, 80 Ga. 785, 7 S.E. 626 (1888), overruled on other grounds, Corbin v. State, 211 Ga. 400, 86 S.E.2d 221 (1955).

Defendant was not entitled to 42 jurors in the array rather than 30 jurors as now provided; the right to additional jurors is not a substantive right and the defendant's challenge to the array was not in writing. Landrum v. State, 210 Ga. App. 275, 436 S.E.2d 40 (1993).

Cited in Harris v. State, 191 Ga. 243, 12 S.E.2d 64 (1940); Reece v. State, 208 Ga. 165, 66 S.E.2d 133 (1951); Heard v. State, 210 Ga. 523, 81 S.E.2d 467 (1954); Reece v. State, 211 Ga. 339, 85 S.E.2d 773 (1955); Vanleeward v. State, 220 Ga. 135, 137 S.E.2d 452 (1964); McGinnis v. State, 135 Ga. App. 843, 219 S.E.2d 485 (1975); Tuzman v. State, 145 Ga. App. 761, 244 S.E.2d 882 (1978); Spencer v. Hopper, 243 Ga. 532, 255 S.E.2d 1 (1979); Newby v. State, 161 Ga. App. 805, 288 S.E.2d 889 (1982); Walls v. State, 161 Ga. App. 235, 291 S.E.2d 15 (1982); Morgan v. Zant, 582 F. Supp. 1026 (S.D. Ga. 1984); Adams v. State, 180 Ga. App. 546, 349 S.E.2d 789 (1986); Guest v. State, 186 Ga. App. 318, 367 S.E.2d 105 (1988); Simmons v. State, 186 Ga. App. 886, 369 S.E.2d 36 (1988); Parrott v. State, 190 Ga. App. 784, 380 S.E.2d 343 (1989); Lancaster v. Newsome, 880 F.2d 362 (11th Cir. 1989); Edmonds v. State, 196 Ga. App. 190, 395 S.E.2d 566 (1990); Wells v. State, 243 Ga. App. 629, 534 S.E.2d 106 (2000).

If sheriff was disqualified.

- In regard to the action of a sheriff in summoning members of the jury, and in selecting bailiffs who served subpoenas upon the jury, if the sheriff was disqualified as alleged, then objection should have been made in the nature of a challenge to the array of jurors. Morakes v. State, 201 Ga. 425, 40 S.E.2d 120 (1946).

Irregularity in drawing not ground for challenge.

- Irregularity in drawing which cannot affect right to trial by fair and impartial jury is not ground for challenge. McNeal v. State, 5 Ga. App. 368, 63 S.E. 224 (1908); Governor v. State, 5 Ga. App. 357, 63 S.E. 241 (1908); Worley v. State, 21 Ga. App. 787, 95 S.E. 304 (1918).

Mere fact of prior jury service not ground for challenge. Green v. State, 246 Ga. 598, 272 S.E.2d 475 (1980), cert. denied, 450 U.S. 936, 101 S. Ct. 1402, 67 L. Ed. 2d 372 (1981).

Screening those not compensated by employer not grounds or screening in such manner as to excuse persons who would not be compensated by their employer during jury service was not grounds for challenge. Butler v. State, 134 Ga. App. 131, 213 S.E.2d 490 (1975).

Mere fact that name of a juror was not on the jury list, when the point was raised for the first time after the verdict, and if the fact would constitute a valid ground of objection under any circumstances, it should have been raised by a challenge to the poll, and not to the array. Fudge v. State, 190 Ga. 340, 9 S.E.2d 259 (1940).

Defendant may appear without handcuffs.

- Prisoner being tried for escape on a plea of not guilty is entitled to make an appearance free from handcuffs so long as there are no circumstances which dictate the use of that restraint. McKenzey v. State, 138 Ga. App. 88, 225 S.E.2d 512 (1976).

Handcuffs are not ground for challenge to array.

- Mere fact that handcuffed defendant is seen by jurors or prospective jurors is not ground for automatic grant of challenge to the array of jurors or of mistrial. Carter v. State, 155 Ga. App. 840, 273 S.E.2d 417 (1980).

Challenge to array is improper method of contesting possible prejudice by jury member. Bias, if bias exists, may be discovered and properly disposed of by questions propounded on voir dire or by a challenge to the poll. Hill v. Dutton, 440 F.2d 34 (5th Cir.), cert. denied, 404 U.S. 845, 92 S. Ct. 145, 30 L. Ed. 2d 81 (1971).

Prejudicial remark by judge.

- Challenge to the poll is the proper procedure to be followed to disqualify jurors on the ground that the trial judge had made a prejudicial remark in the jurors presence. Cauley v. State, 130 Ga. App. 278, 203 S.E.2d 239 (1973), cert. denied, 419 U.S. 877, 95 S. Ct. 140, 42 L. Ed. 2d 117 (1974).

Striking all potential black jurors.

- Prosecution's striking of all potential black jurors denied the defendant the right to a jury of defendant's peers and constituted reversible error. Mincey v. State, 180 Ga. App. 263, 349 S.E.2d 1 (1986), aff'd, 256 Ga. 636, 353 S.E.2d 814 (1987).

Statement by prospective juror that the juror co-owned robbed store.

- Trial court did not err by refusing to grant a continuance so that another jury could be empaneled after a prospective juror answered the question propounded by the court as to whether any of the jurors knew the defendant by stating that the juror was the co-owner of the store that the defendant robbed. This answer did not link defendant to other criminal violations on defendant's part which were complete and separate from the offense for which defendant was being tried, and the other jurors indicated by their lack of response to the court's inquiry that they had not been affected by the remark, as well as by their verdict of guilty after specific direction to acquit the defendant if they had been influenced in any manner by the statement. Austin v. State, 180 Ga. App. 226, 348 S.E.2d 746 (1986).

Time for challenge.

- Challenge to an array must be made when the array is put upon the defendant. Mitchell v. Hopper, 538 F. Supp. 77 (S.D. Ga. 1982), supplemented by 564 F. Supp. 780 (S.D. Ga. 1983), aff'd in part, rev'd in part sub nom. Ross v. Kemp, 756 F.2d 1483 (11th Cir. 1985), aff'd in part sub nom. Mitchell v. Kemp, 762 F.2d 886 (11th Cir.), rev'd in part sub nom. Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986), cert. denied, 483 U.S. 1026, 107 S. Ct. 3248, 97 L. Ed. 2d 774 (1987), 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727 (1991).

Under O.C.G.A. § 15-12-162, a criminal defendant must raise a challenge to the jury array at or before the time that the jury array is seated and voir dire commences, and the challenge must be in writing; defendant's challenge to the jury array was not preserved for appeal, and was meritless as the jury array was based on census data available at the time of the trial. Usher v. State, 258 Ga. App. 459, 574 S.E.2d 580 (2002).

Defendant's two oral challenges to the jury array for failure to include sufficient Latino jurors and defendant's written challenge all made after the jury had already been selected were untimely under O.C.G.A. § 15-12-162 and therefore could not be considered on appeal. Guzman v. State, 287 Ga. 759, 700 S.E.2d 340 (2010).

Challenge waived by failure to raise it.

- Defendant who fails to raise challenge to array of the jury when panel is put upon defendant waives the challenge once and for all. Derryberry v. Higdon, 116 Ga. App. 381, 157 S.E.2d 559 (1967); Dixon v. Hopper, 407 F. Supp. 58 (M.D. Ga. 1976), overruled on other grounds, Jarrell v. Balkcom, 735 F.2d 1242 (11th Cir. Ga. 1984); Rogers v. State, 143 Ga. App. 306, 238 S.E.2d 245 (1977); Stewart v. Ricketts, 451 F. Supp. 911 (M.D. Ga. 1978).

If no question is raised as to the "make-up" of the jury until after the verdict, such contention is deemed to have been waived and the trial court does not err in denying the prisoner's prayers for relief based upon this ground. Moore v. Dutton, 223 Ga. 585, 157 S.E.2d 267 (1967).

Defendant's failure to comply with this state's procedural rule constituted a waiver of the defendant's right to challenge the jury composition in a federal habeas corpus proceeding. Smith v. Kemp, 715 F.2d 1459 (11th Cir. 1983).

Claim that a juror was absent from jury selection was not supported by the record, and, to the extent the defendant failed to object to the absence, if any, of the juror and failed to file a written challenge to the array, the claim was waived, under O.C.G.A. § 15-12-162, and there was no error, under O.C.G.A. § 15-12-160, as the record showed without dispute that the defendant was not denied a full panel of 30 qualified jurors from which 12 jurors were selected. Nelson v. State, 278 Ga. App. 548, 629 S.E.2d 410 (2006).

Because defendant orally challenged jury array but refused to participate in voir dire or jury selection and failed to set forth any facts showing that the jury was not properly composed, the purported challenge was waived. Allen v. State, 273 Ga. App. 227, 614 S.E.2d 857 (2005).

Rulings on challenges not grounds for new trial.

- Rulings on challenge to array of trial jurors cannot be properly asserted as grounds of motion for new trial. Hargroves v. State, 179 Ga. 722, 177 S.E. 561 (1934); Ivey v. State, 84 Ga. App. 72, 65 S.E.2d 282 (1951).

Appellant cannot raise challenges to the grand and traverse juries for the first time in appellant's motion for new trial. Griffin v. State, 245 Ga. 345, 265 S.E.2d 20 (1980).

Unless lack prior opportunity.

- Challenge to the array may be raised by a new-trial motion or by a habeas corpus proceeding when the person accused was not afforded the opportunity to make appropriate objections before the indictment or during the progress of the trial. McKenzey v. State, 138 Ga. App. 88, 225 S.E.2d 512 (1976); Morgan v. State, 161 Ga. App. 484, 287 S.E.2d 739 (1982).

If the defendant orally challenged the array after voir dire, but before selection of the jury, and included the challenge in defendant's written motion for new trial, the defendant did not waive the defendant's challenge to the jury composition. Anthony v. State, 213 Ga. App. 303, 444 S.E.2d 393 (1994).

Statement of accused that the accused waived nothing is not a challenge to the array. Schumpert v. State, 9 Ga. App. 553, 71 S.E. 879 (1911).

Right to demand full panel lost when defendant merely selects jury. Ivey v. State, 4 Ga. App. 828, 62 S.E. 565 (1908).

Defendant has burden of showing jury discrimination in challenging the array. Estes v. State, 232 Ga. 703, 208 S.E.2d 806 (1974).

Motion must be in writing.

- Challenge to the array, for any cause going to show that the array was not fairly or properly empaneled, must be in writing. Thompson v. Buice, 162 Ga. 556, 134 S.E. 303 (1926); Porch v. State, 207 Ga. 645, 63 S.E.2d 902, cert. denied, 341 U.S. 954, 71 S. Ct. 1005, 95 L. Ed. 1376 (1951); Smith v. State, 151 Ga. App. 697, 261 S.E.2d 439 (1979); Sexton v. State, 189 Ga. App. 12, 374 S.E.2d 824 (1988).

If a claim of systematic exclusion of women and blacks from the grand and petit juries is not asserted by a written challenge to the array, the trial court may properly overrule the motion for a change of venue. Coley v. State, 231 Ga. 829, 204 S.E.2d 612 (1974).

Under O.C.G.A. § 15-12-162, a challenge to the jury array must be in writing. Terrell v. State, 201 Ga. App. 628, 411 S.E.2d 779 (1991).

When defendant claimed that the alphabetical organization of the jury pool from which the defendant's jury was drawn resulted in an improper jury panel, the defendant did not assert this challenge in writing, as required, nor did the defendant show that there was any systematic exclusion of a cognizable group. Hernandez v. State, 274 Ga. App. 390, 617 S.E.2d 630 (2005).

In a federal habeas proceeding, an evidentiary hearing was necessary to determine whether the petitioner had satisfied the "cause and prejudice" requirements so as to exempt the petitioner from the operation of the state procedural waiver rule requiring a timely challenge to the composition of the jury, to establish that the constitutional defects in the jury composition were not reasonably discoverable by petitioner's counsel at the time of trial, and that the decision not to challenge the composition at that time was a deliberate bypass. Amadeo v. Kemp, 773 F.2d 1141 (11th Cir. 1985), rev'd on other grounds, 486 U.S. 214, 108 S. Ct. 1771, 100 L. Ed. 2d 249 (1988).

Defendant must challenge jury composition prior to voir dire.

- Since a jury is "put upon" a defendant at the time that the jury array is seated and voir dire commences, in order to avoid waiving any right to challenge the composition of a jury on appeal, a defendant must raise such a challenge prior to the commencement of voir dire. Spencer v. Kemp, 781 F.2d 1458 (11th Cir. 1986), cert. denied, 500 U.S. 960, 111 S. Ct. 2276, 114 L. Ed. 2d 727 (1991).

Defense counsel's motion for a continuance on the basis that the district attorney's striking of all potential black jurors denied the defendant the right to a jury of defendant's peers was a sufficient method of challenging the jury array. Mincey v. State, 180 Ga. App. 263, 349 S.E.2d 1 (1986), aff'd, 256 Ga. 636, 353 S.E.2d 814 (1987).

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, §§ 216 et seq., 280.

C.J.S.

- 50A C.J.S., Juries, § 357 et seq.

ALR.

- Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case, 52 A.L.R. 919.

Proof as to exclusion of or discrimination against eligible class or race in respect to jury in criminal case, 1 A.L.R.2d 1291.

Bias, prejudice, or conduct of individual member or members of jury panel as ground for challenge to array or to entire panel, 76 A.L.R.2d 678.

Juror's presence at or participation in trial of criminal case (or related hearing) as ground of disqualification in subsequent criminal case involving same defendant, 6 A.L.R.3d 519.

Propriety, on voir dire in criminal case, of inquiries as to juror's possible prejudice if informed of defendant's prior convictions, 43 A.L.R.3d 1081.