§62-3-3. Selection of jury in felony cases; striking jurors; alternate jurors.
In a case of felony, twenty jurors shall be drawn from those in attendance for the trial of the accused. If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from exception, be completed, from which panel the accused may strike off six jurors and the prosecuting attorney may strike off two jurors. The prosecuting attorney shall first strike off two jurors, and then the accused six. If the accused failed to strike from such panel the number of jurors this section allows him to strike, the number not stricken off by him shall be stricken off by the prosecuting attorney, so as to reduce the panel to twelve, who shall compose the jury for the trial of the case.
Whenever, in the opinion of the court the trial is likely to be a protracted one, the court may direct that not more than four jurors, in addition to the regular jury, be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to one peremptory challenge in addition to those otherwise allowed by law if one or two alternate jurors are to be impanelled, and two peremptory challenges if three or four alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by this section may not be used against an alternate juror.
Notes of Decisions
State of West Virginia v. Timothy Ray Sutherland, 745 S.E.2d 448 (W. Va. 2013).
· cites it 38× “A trial court’s failure to remove a biased juror from a jury panel, as required by W. Va. Code § 62-3-3 (1949) (Repl. Vol. 2010), does not violate a criminal defendant’s right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike.”
O'DELL v. Miller, 565 S.E.2d 407 (W. Va. 2002).
· cites it 10× “If a sufficient number of jurors for such panel cannot be procured in this way, the court shall order others to be forthwith summoned and selected, until a panel of twenty jurors, free from exception, be completed, from which panel the accused may strike off six jurors and the…”
State v. Newcomb, 679 S.E.2d 675 (W. Va. 2009).
· cites it 10× “Nevertheless, W.Va.Code § 62-3-3 (1949) requires a panel of twenty jurors "free from exception.”
State v. Phillips, 461 S.E.2d 75 (W. Va. 1995).
· cites it 8× “[27] In fact, pursuant to W.Va. Code, 62-3-3 (1949), a defendant is entitled to a panel of twenty jurors, free from exception, before he or she is called upon to exercise peremptory challenges.”
State Ex Rel. Kitchen v. Painter, 700 S.E.2d 489 (W. Va. 2010).
· cites it 6× “The most that the appellant can show is a violation of his right to a jury panel of twenty jurors free from exception under W. Va.Code § 62-3-3 (1949). 19 But as this Court ex *296 plained in State v.”
State of West Virginia v. Gary Lee Rollins, 760 S.E.2d 529 (W. Va. 2014).
· cites it 6× ““A trial court’s failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal defendant’s right to a trial by an impartial jury if the defendant removes the juror with a peremptory strike.”
State v. White, 722 S.E.2d 566 (W. Va. 2011).
· cites it 2× “White used his peremptory challenges to remove the two jurors; however, he correctly observes that [t]he language of W. Va.Code, 62-3-3 (1949), grants a defendant the specific right to reserve his or her peremptory challenges until an unbiased jury panel is assembled.”
State of West Virginia v. Christopher Wayne Bowling, 753 S.E.2d 27 (W. Va. 2013).
· cites it 4× “In our Sutherland decision, we held: A trial court’s failure to remove a biased juror from a jury panel, as required by W. Va.Code § 62-3-3 (1949) (Repl.Vol.2010), does not violate a criminal defendant’s right to a trial by an impartial jury if the defendant removes the juror…”
State v. Hutchinson, 599 S.E.2d 736 (W. Va. 2004).
· cites it 3× “Nevertheless, W.Va.Code § 62-3-3 (1949) requires a panel of twenty jurors “free from exception.”
State v. Mills, 566 S.E.2d 891 (W. Va. 2002).
· cites it 3× “We note at the outset that although Venireman Billings was not struck by the trial court for cause, the defendant exercised a peremptory challenge against him so that he was not on the jury that convicted the defendant.”
Davis v. McBride, 654 S.E.2d 364 (W. Va. 2007).
· cites it 5× “In felony criminal cases, however, where an individual’s liberty interests are at stake, additional factors must be considered to ensure that the defendant receives a fair trial by an impartial jury of his/her peers.”
— W. Va. Code § 62-3-3(1949) — 1 case
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