Parties are entitled to be tried by a fair and impartial jury. Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 258 (1989). The process by which potential jurors are selected and brought to court is governed by MCL 600.1301 et seq. A random selection process must be used. See MCR 2.511(A)(3); MCL 600.1328.
Juror qualification is governed by both statute and court rule. See MCL 600.1307a and MCR 2.511(E). To qualify as a juror, the individual must:
•be a United States Citizen;
•be 18 years of age or older;
•reside in the county where the trial is being held;
•reside in the district where the trial is being held if the trial is being held in a second or third class district court;
•be able to communicate in the English language;
•be physically and mentally able to serve as a juror1;
•not have served on a petit or grand jury in a court of record within the last 12 months2; and
•not have any felony convictions. MCL 600.1307a(1).
See Section 7.20(E) for information regarding a challenge to a juror’s qualification raised during voir dire.
An individual over 70 years of age may serve as a juror, but is exempt upon submitting a request to be excused from service. MCL 600.1307a(2). Additionally, “[a] nursing mother may claim exemption from jury service for the period during which she is nursing her child and must be exempt upon making the request if she provides a letter from a physician, a lactation consultant, or a certified nurse midwife verifying that she is a nursing mother.” MCL 600.1307a(3).
“An individual who is a participant in the address confidentiality program created under the address confidentiality program act . . . may claim exemption from jury service for the period during which the individual is a program participant.” MCL 600.1307a(4). To obtain an exemption, “the individual must provide the participation card issued by the department of attorney general upon the individual’s certification as a program participant to the court as evidence that the individual is a current participant in the address confidentiality program.” Id.
“An individual who is a service member of the United States Armed Forces may claim exemption from jury service for the period during which the individual is on active duty and must be exempt upon making the request of the court and providing a copy of the service member’s orders.” MCL 600.1307a(5). “An individual who is the spouse of a service member of the United States Armed Forces may claim exemption from jury service for the period during which the individual resides outside of this state or the United States due to the service member’s active duty status”; “[t]he spouse . . . must be exempt upon making the request of the court and providing a copy of the service member’s orders.” MCL 600.1307a(6).
“It is essential to the proper disposition of jury matters that they be submitted to and determined by a jury drawn from an array of qualified jurors. . . . The selection of a jurors list with reference to sex, employment, or age does violence to the fundamental precept of the jury system that juries should be chosen from a fair cross section of the community.” Robson v Grand Trunk W R Co, 5 Mich App 90, 97-98 (1966).
The selection process authorizes “any other fair and impartial method directed by the court or agreed to by the parties.” MCR 2.511(A)(4).
The minimum number of jurors required in a civil case is six, unless the parties agree otherwise. MCL 600.1352; MCL 600.8353; MCR 2.514(A)(1). The court may direct that seven or more jurors be impaneled to sit on the jury. MCR 2.511(B). After the jury instructions are delivered and the case is ready for submission to the jury, the names of all jurors impaneled must be put into a container where the court randomly draws names to reduce the number of jurors to six. Id.3 However, by agreement of the parties, the court may allow all of the impaneled jurors to participate in deliberations. Id.; MCR 2.514(A)(3).4
Access to juror personal history questionnaires is governed by court rule and the court’s local administrative order. See MCR 2.510(C)(2).
“The attorneys must be given a reasonable opportunity to examine the questionnaires before being called on to challenge for cause.” MCR 2.510(C)(2). An “attorney’s right to see the juror questionnaire ends when the trial ends.” Collier v Westland Arena, Inc, 183 Mich App 251, 254 (1990). After the trial, an attorney may view a questionnaire pursuant to a court order. Id.
The press has a qualified right of post verdict access to juror names and addresses, subject to the court’s discretion to consider jurors’ concerns about safety and privacy. In re Disclosure of Juror Names & Addresses, 233 Mich App 604, 630 (1999).
Juror questionnaires must be kept on file for at least three years, unless the chief judge orders them to be kept longer. MCL 600.1315; MCR 2.510(C)(3). The answers on the juror questionnaires are confidential, unless otherwise ordered by the chief judge. MCL 600.1315.
D.Juror Oath Before Voir Dire5
The judge should advise the juror that he or she is about to be sworn in. See M Civ JI 1.04, which provides:
“I will now ask you to swear or affirm to answer truthfully, fully, and honestly all the questions that you will be asked about your qualifications to serve as a juror in this case. Please stand and raise your right hand.
‘Do you solemnly swear or affirm that you will truthfully and completely answer all questions about your qualifications to serve as jurors in this case?’”
“Voir dire is the process by which litigants may question prospective jurors so that challenges to the prospective jurors can be intelligently exercised.” Bynum v ESAB Group, Inc, 467 Mich 280, 283 (2002). Either the court or the lawyers for the parties may conduct voir dire. MCR 2.511(C). If the court examines the prospective jurors, it must permit the attorneys for the parties to ask or submit further questions that the court considers proper. MCR 2.511(C)(1)-MCR 2.511(C)(2). “In a large measure the scope of examination of jurors on voir dire is within the discretion of the trial judge; but it must not be so limited as to exclude a showing of facts that would constitute ground for challenging for cause or the reasonable exercise of peremptory challenges.”Fedorinchik v Stewart, 289 Mich 436, 439 (1939). The court must provide the prospective jurors with sufficient factual information so they can intelligently answer the voir dire questions. Kuisel v Farrar, 6 Mich App 560, 563 (1967).
“Jurors are presumed to be qualified. The burden of proving the existence of a disqualification is on the party alleging it.” Bynum v ESAB Group, Inc, 467 Mich 280, 283 (2002).6 “When the court finds that a person in attendance at court as a juror is not qualified to serve as a juror, the court shall discharge him or her from further attendance and service as a juror.” MCR 2.511(D). See also MCL 600.1337.
F.Noncompliance with Jury Selection Rules
“Failure to comply with the provisions of [Chapter 13 of the Revised Judicature Act] shall not . . . affect the validity of a jury verdict unless the party . . . claiming invalidity has made timely objection and unless the party demonstrates actual prejudice to his cause and unless the noncompliance is substantial.” MCL 600.1354(1).
When information potentially affecting a juror’s ability to act impartially is discovered after the jury has been sworn and the juror is allowed to remain on the jury, the defendant may be entitled to relief on appeal if the defendant can establish that the juror was properly excusable for cause and that the juror’s presence on the jury resulted in actual prejudice. People v Miller, 482 Mich 540, 561 (2008) (a new trial for a violation of the statutory right to a jury free of convicted felons pursuant to MCL 600.1307a(1)(e) was not warranted where “[the] defendant failed to establish that he was actually prejudiced by the presence of a convicted felon on his jury). The Court emphasized that although a defendant has a constitutional right to an impartial jury, he or she does not have a constitutional right to a jury free of convicted felons. Miller, 482 Mich at 547.
G.Challenges for Cause7
Prospective jurors may be challenged for cause under MCR 2.511(E), which states:
“The parties may challenge jurors for cause, and the court shall rule on each challenge. A juror challenged for cause may be directed to answer questions pertinent to the inquiry. It is grounds for a challenge for cause that the person:
(1) is not qualified to be a juror[8];
(2) is biased for or against a party or attorney;
(3) shows a state of mind that will prevent the person from rendering a just verdict, or has formed a positive opinion on the facts of the case or on what the outcome should be;
(4) has opinions or conscientious scruples that would improperly influence the person’s verdict;
(5) has been subpoenaed as a witness in the action;
(6) has already sat on a trial of the same issue;
(7) has served as a grand or petit juror in a criminal case based on the same transaction;
(8) is related within the ninth degree (civil law) of consanguinity or affinity to one of the parties or attorneys;
(9) is the guardian, conservator, ward, landlord, tenant, employer, employee, partner, or client of a party or attorney;
(10) is or has been a party adverse to the challenging party or attorney in a civil action, or has complained of or has been accused by that party in a criminal prosecution;
(11) has a financial interest other than that of a taxpayer in the outcome of the action;
(12) is interested in a question like the issue to be tried.
Exemption from jury service is the privilege of the person exempt, not a ground for challenge.”
In exercising a challenge for cause, the attorney must ascertain the disposition of the prospective juror regarding the subject matter of the case. Poet v Traverse City Osteopathic Hosp, 433 Mich 228, 235 (1989). “The success of a challenge depends upon eliciting information from the juror, as well as from other sources, as to the juror’s state or condition of mind, as will enable a discretionary judgment to be formed by the court as to the juror’s competency.” Id. “[H]owever, the decision to grant or deny a challenge for cause is within the sound discretion of the trial court.” Id. at 236.
The court has the discretion to remove a juror, on its own initiative, for possible bias. Harrison v Grand Trunk W R Co, 162 Mich App 464, 471 (1987) (the trial court did not abuse its discretion when it dismissed two jurors because they indicated that they would have a difficult time being impartial).
“Where a prospective juror expresses a strong opinion but promises to remain impartial, “the trial court’s discretionary function should be balanced against its obligation to fulfill each litigant’s right to a fair trial. By achieving this balance in each case, the act of a trial judge in granting or denying a request to remove a potential juror should represent a decision ever mindful of the constitutional seriousness involved.” Poet, 433 Mich at 236-237. “When balancing discretionary power with a litigant’s right to a fair trial, a trial judge should, in cases where apprehension is reasonable, err on the side of the moving party.” Id. at 238.
Where a challenge for cause is improperly denied and a party is thus compelled to use a peremptory challenge, there is a presumption of prejudice. Poet, 433 Mich at 239-240. In determining whether the degree of prejudice requires a new trial, the Court stated:
“[I]n order to uniformly determine when a trial court’s error in overruling a challenge for cause requires reversal, we will henceforth focus on the causal relationship between an erroneous denial, its effect upon the availability of allotted peremptory challenges, and how each of these factors influenced the ultimate composition of the jury in question.
Accordingly, in the interest of requiring an independent and objective manifestation of actionable prejudice, we hold that in order for a party to seek relief, . . . there must be some clear and independent showing on the record that: (1) the court improperly denied a challenge for cause, (2) the aggrieved party exhausted all peremptory challenges, (3) the party demonstrated the desire to excuse another subsequently summoned juror, and (4) the juror whom the party wished later to excuse was objectionable.” Poet, 433 Mich at 240-241.
A peremptory challenge excuses a juror without cause. MCR 2.511(F)(1). In a civil case, each party typically has three peremptory challenges. MCR 2.511(F)(2). “Two or more parties on the same side are considered a single party for purposes of peremptory challenges. However, when multiple parties having adverse interests are aligned on the same side, three peremptory challenges are allowed to each party represented by a different attorney, and the court may allow the opposite side a total number of peremptory challenges not exceeding the total number of peremptory challenges allowed to the multiple parties.” Id.
Peremptory challenges must be exercised as follows:
“(a) First the plaintiff and then the defendant may exercise one or more peremptory challenges until each party successively waives further peremptory challenges or all the challenges have been exercised, at which point jury selection is complete.
(b) A ‘pass’ is not counted as a challenge but is a waiver of further challenge to the panel as constituted at that time.
(c) If a party has exhausted all peremptory challenges and another party has remaining challenges, that party may continue to exercise their remaining peremptory challenges until such challenges are exhausted.” MCR 2.511(F)(3).
I.Discrimination During Voir Dire
The Equal Protection Clause of the Fourteenth Amendment prohibits discrimination during voir dire. Batson v Kentucky, 476 US 79, 89 (1986). See also Edmonson v Leesville Concrete Co, 500 US 614, 616 (1991) (extending Batson to civil cases and holding that discrimination during civil jury selection is prohibited); Pellegrino v Ampco Sys Parking, 486 Mich 330, 338-339 (2010).
MCR 2.511(G)(1) provides that “[n]o person shall be subjected to discrimination during voir dire on the basis of race, color, religion, national origin, or sex.” Discrimination during voir dire on the basis of any of those factors for the purpose of achieving a balanced, proportionate, or representative jury in terms of those characteristics is not an excuse or justification for a violation of MCR 2.511(G)(1). MCR 2.511(G)(2).
1.Batson Factors
In Batson v Kentucky, 476 US 79, 96-98 (1986), the United States Supreme Court set out a three-step process for determining the constitutional propriety of a peremptory challenge in criminal cases. Later, the Michigan Supreme Court stated that there is “no reason why these standards, developed in the criminal trial context, are not equally applicable in the civil trial context.” Harville v State Plumbing & Heating, Inc, 218 Mich App 302, 319 n 9 (1996). The factors are discussed throughout this subsection.
a.Prima Facie Showing of Discrimination by the Opponent of the Peremptory Challenge
“First, the opponent of the peremptory challenge must make a prima facie showing of discrimination. To establish a prima facie case of discrimination based on race, the opponent must show that: (1) he is a member of a cognizable racial group; (2) the proponent has exercised a peremptory challenge to exclude a member of a certain racial group from the jury pool; and (3) all the relevant circumstances raise an inference that the proponent of the challenge excluded the prospective juror on the basis of race.” People v Knight, 473 Mich 324, 336 (2005) (internal citations omitted), habeas corpus gtd Rice v White, 660 F3d 242 (CA 6, 2011).9
In the first Batson step, the opponent of the challenge is not required to actually prove discrimination. Knight, 473 Mich at 336. Rather, “the sum of the proffered facts [must] give[] rise to an inference of discriminatory purpose[.]” Id. at 336-337 (quotation marks and citation omitted). See also People v Armstrong, 305 Mich App 230, 238 (2014). In Armstrong, the Court of Appeals concluded that the defendant, a member of a cognizable racial group, failed to demonstrate an inference that the challenge excluded a prospective juror on the basis of race where the prospective juror had expressed issues with child care on the record and the prosecutor stated that the juror was excused on that basis. Id. at 234-235, 239. While the juror was the “only black juror in the jury pool,” and the prosecution only exercised one peremptory challenge, no other prospective juror expressed a similar issue with child care. Id. at 239 The Court concluded that given those facts, “the circumstances did not lead to the inference that the prosecutor dismissed [the juror] because of his race.” Id.
b.Race-Neutral Explanation for the Peremptory Challenge by the Challenger
“Once the [opponent of the challenge] makes a prima facia showing, the burden shifts to the [challenger] to come forward with a neutral explanation for challenging [the juror].” Batson v Kentucky, 476 US 79, 97 (1986). Batson’s second step “does not demand an explanation that is persuasive, or even plausible.” Purkett v Elem, 514 US 765, 768 (1995). Rather, the issue is whether the proponent’s explanation is facially valid as a matter of law. Id. “A neutral explanation . . . means an explanation based on something other than the race of the juror. . . . Unless a discriminatory intent is inherent in the prosecutor’s explanation, the reason offered will be deemed race neutral.” People v Knight, 473 Mich 324, 337 (2005) (quotation marks and citation omitted), habeas corpus gtd Rice v White, 660 F3d 242 (CA 6, 2011).10
c.Determination by the Trial Court Whether Opponent of the Challenge has Established Purposeful Discrimination
“Finally, if the proponent [of the challenge] provides a race-neutral explanation as a matter of law, the trial court must then determine whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination. It must be noted, however, that if the proponent of the challenge offers a race-neutral explanation and the trial court rules on the ultimate question of purposeful discrimination, the first Batson step (whether the opponent of the challenge made a prima facie showing) becomes moot.” People v Knight, 473 Mich 324, 337-338 (2005) (internal citations omitted), habeas corpus gtd Rice v White, 660 F3d 242 (CA 6, 2011).11 “In making a finding at step three, the trial court is required to assess the plausibility of the race-neutral explanation ‘in light of all evidence with a bearing on it.’” People v Tennille, 315 Mich App 51, 64 (2016), quoting Miller-El v Dretke, 545 US 231, 251-252 (2005).
2.Caselaw
a.Raising a Batson Challenge
In order to ensure the equal protection rights of individual jurors, a trial court may sua sponte raise a Batson issue after observing a prima facie case of purposeful discrimination through the use of peremptory challenges. People v Bell, 473 Mich 275, 285-287 (2005).
b.Conducting a Batson Hearing
“[T]rial courts must meticulously follow Batson’s three-step test,” and the Michigan Supreme Court “strongly urge[s] [trial] courts to clearly articulate their findings and conclusions on the record.” People v Knight, 473 Mich 324, 339 (2005), habeas corpus gtd Rice v White, 660 F3d 242 (CA 6, 2011).12 In order to preserve the option of reseating a juror who was improperly struck, the court should not release the challenged juror until the challenge is addressed. Knight, 473 Mich at 347.
Committee Tip:
The best practice is to excuse the jury while conducting a Batson hearing.
c.Improper Application of the Batson Factors
In People v Tennille, 315 Mich App 51, 62 (2016), the trial court “failed to afford defense counsel an opportunity to rebut the prosecutor’s stated reason for dismissing [two African-American] jurors” and failed to make any “findings of fact regarding whether the prosecutor’s justification for the strikes[, i.e., the jurors’ show of disgust in reaction to another juror’s assertions that he would give a police officer’s testimony more credence than that of another witness,] seem[ed] credible under all of the relevant circumstances, including whether the jurors actually exhibited the expressions claimed and whether the averred reactions were the real reasons for the strikes.” The trial court “improperly conflated steps two and three of the Batson framework,” by perfunctorily “stat[ing] that it ‘accepted’ the prosecutor’s explanation as ‘a valid race neutral reason’” to deny the challenge, thus, the trial court did not reach step three. Id. at 62, 68, 71, 73 (because “[the] record [did] not permit a conclusion that the prosecutor’s stated reason for the strikes was nondiscriminatory,” it was necessary to “remand to the trial court for an evidentiary hearing during which the trial court [was required to] conduct the third-step [Batson] analysis it omitted at defendant’s trial).
It is important to note the distinction between a Batson error and a denial of a peremptory challenge: “[a] Batson error occurs when a juror is actually dismissed on the basis of race or gender,” whereas “a denial of a peremptory challenge on other grounds amounts to the denial of a statutory or court-rule-based right to exclude a certain number of jurors.” People v Bell, 473 Mich 275, 293 (2005). A Batson error is of constitutional dimension, and is subject to automatic reversal, whereas an improper denial of a peremptory challenge is not of constitutional dimension, and is reviewed for a miscarriage of justice if it is preserved, or for plain error affecting substantial rights if it is unpreserved. Id. at 293-295.
d.Challenges Based on a Juror’s Demeanor
“When a prosecutor’s sole explanation for a strike resides in a juror’s appearance or behavior, the third step bears heightened significance. Explanations for peremptory challenges based solely on a juror’s demeanor are particularly susceptible to serving as pretexts for discrimination.” People v Tennille, 315 Mich App 51, 65 (2016) (quotation marks and citation omitted).
The prosecution’s proffer of a pretextual explanation gives rise to an inference of discriminatory intent. Snyder v Louisiana, 552 US 472, 485 (2008). At that stage, the trial court must weigh the credibility of the prosecutor by considering “not only whether the prosecutor’s demeanor belies a discriminatory intent, but also whether the juror’s demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor.” Id. at 477.
In Snyder, 552 US at 478, the trial court allowed the prosecutor to strike a black juror for the race-neutral reasons that the juror looked nervous, and that, because of a student-teaching obligation, the juror might return a lesser guilty verdict (which would obviate the need for a penalty phase) in order to fulfill his jury duty more quickly. The United States Supreme Court held that the trial court clearly erred in overruling the defendant’s Batson objection to the prosecutor’s strike of that juror, specifically noting that “in light of the circumstances here—including absence of anything in the record showing that the trial judge credited the claim that [the juror] was nervous, the prosecution’s description of both of its proffered explanations as ‘main concern[s],’ and the adverse inference [that the prosecutor declined to use a peremptory strike on a white juror with more pressing work and family obligations]—the record [did] not show that the prosecution would have pre-emptively challenged [the juror] based on his nervousness alone.” Id. at 477-483, 485.
In Thaler v Haynes, 559 US 43, 44 (2010), two different judges presided at different stages of voir dire, and the judge who decided the peremptory challenges was not the same judge who presided when the attorneys questioned the prospective jurors.13 The prosecutor made a race-neutral challenge to a prospective juror because the juror’s “demeanor had been ‘somewhat humorous’ and not ‘serious’ and . . . her ‘body language’ had belied her ‘true feeling.’” Id. In addition, the prosecutor stated that “he believed that [the prospective juror] ‘had a predisposition’ and would not look at the possibility of imposing a death sentence ‘in a neutral fashion.’” Id. The United States Supreme Court disagreed with defendant’s argument on appeal that “‘a trial judge who did not witness the actual voir dire cannot, as a matter of law, fairly evaluate a Batson challenge,’” stating:
“[W]here the explanation for a peremptory challenge is based on a prospective juror’s demeanor, the judge should take into account, among other things, any observations of the juror that the judge was able to make during the voir dire. But Batson plainly did not go further and hold that a demeanor-based explanation must be rejected if the judge did not observe or cannot recall the juror’s demeanor. Nor did we establish such a rule in Snyder.” Thaler, 559 US at 45, 48.
e.Denial of a Peremptory Challenge
A trial court’s decision to include a juror based on race should be treated the same as if the trial court had excluded the juror based on race. Pellegrino v Ampco Sys Parking, 486 Mich 330, 347 (2010). In Pellegrino, the trial court denied the defendant’s peremptory challenge without going through the required Batson analysis and retained a juror because of her race. Id. at 334-336. The Michigan Supreme Court found that by failing to determine whether the defendant’s peremptory challenge was racially motivated under Batson, the trial court violated established constitutional principles and was not justified or authorized to deny the peremptory challenge. Id. at 344. The Court stated:
“The trial court’s refusal to allow defendant to strike [the] prospective juror . . . without finding any Batson violation led to at least one member of the jury having been selected, not pursuant to nondiscriminatory criteria, but precisely on the basis of race. [The juror]’s presence on the jury was thus the result not of being ‘indifferently chosen,’ as required by Batson, but of having been chosen specifically on the basis of race. As asserted in Batson, this inflicts harm on defendant, on the prospective juror who was excluded because of [the juror]’s retention, and indeed on the ‘entire community.’ The trial court’s process transformed the jury from a group of mere citizens into a group in which a person’s racial background became defining, and it transformed the selection process from one that was neutral in terms of race into one that was predicated on race. While this may be the process preferred by the trial court, it is not the process set forth by the federal or state constitutions or by federal or state law.” Pellegrino, 486 Mich at 345.
The Court emphasized that where a Batson violation leads to the unlawful inclusion or exclusion of a juror, automatic reversal is required. Pellegrino, 486 Mich at 348.
f.Proper Exercise of Peremptory Challenge
Defense counsel’s use of “a peremptory challenge to exclude . . . a pregnant, African-American woman” “was not inherently discriminatory, [and survived] plaintiff’s Batson challenge” where the “case involved the tragic death of a seven-month-old baby,” and “[t]he questions that defense counsel asked during voir dire show[ed] that he was trying to impanel a jury that would put aside emotions when deciding the case.” Carlsen Estate v Southwestern Mich Emergency Servs, PC, 338 Mich App 678, 690, 691, 692 (2021) (defense counsel “asked at least seven potential jurors—male and female—whether they made decisions based more on emotion or on logic”). “Furthermore, defense counsel exercised only two peremptory challenges, both of which were used on jurors who admitted to varying degrees that emotions might affect their deliberations” and “[d]efense counsel’s exercise of peremptory strikes [did] not show a pattern of striking jurors on the basis of their gender . . . but on counsel’s estimation of whether there were any indications that a juror, for whatever reason, might not view the facts of the case with the level of dispassion desired by the defense.” Id. at 692.
J.Juror Oath Following Selection14
After being selected, the clerk of the court swears in the entire jury. See MCR 2.511(I)(1), which provides:
“The jury must be sworn by the clerk substantially as follows:
‘Each of you do solemnly swear (or affirm) that, in this action now before the court, you will justly decide the questions submitted to you, that, unless you are discharged by the court from further deliberation, you will render a true verdict, and that you will render your verdict only on the evidence introduced and in accordance with the instructions of the court, so help you God.’”
See also M Civ JI 1.10, which provides essentially the same language.
Although the juror oath following jury selection is mandatory, see MCR 2.511(I)(1), failure to use the precise language of MCR 2.511(I)(1) will not automatically require reversal of a jury verdict, see People v Cain, 498 Mich 108, 128-129 (2015) (the mistaken use of the juror oath given before voir dire “did not seriously affect the fairness, integrity, or public reputation of the judicial proceedings” where “the record reveal[ed] that the jurors were conscious of the gravity of the task before them and the manner in which that task was to be carried out,” and the jurors “stated under oath that they could be fair and impartial, and the trial court thoroughly instructed them on the particulars of their duties”). Although the oath that was administered “was not a perfect substitute for the oath required by [MCR 2.511(I)(1)],” the defendant was not entitled to relief based on the unpreserved error where he “was actually ensured a fair and impartial jury[.]” Cain, 498 Mich at 123, 128-129 (cautioning courts “to take particular care that the error that occurred in this case be avoided in the future”).
K.Alternate Jurors and Removal or Substitution of a Juror at Trial
The court may direct that alternate jurors be impaneled to sit. MCR 2.511(B). “After the instructions to the jury have been given and the action is ready to be submitted, unless the parties have stipulated that all the jurors may deliberate, the names of the jurors must be placed in a container and names drawn to reduce the number of jurors to 6, who shall constitute the jury.” Id. The court may retain the alternate jurors during deliberations, with the instruction that the alternate jurors may not discuss the case with anyone until the jury has been discharged. Id. If a substitution of jurors occurs “after the jury retires to consider its verdict,” the judge must instruct the reconstituted jury to begin deliberations anew. Id.
When a judge is substituted after voir dire, the defendant must show actual prejudice to justify reversal. Brown v Swartz Creek VFW, 214 Mich App 15, 21 (1995).
A judge’s decision on the scope of voir dire is reviewed for an abuse of discretion. White v City of Vassar, 157 Mich App 282, 289 (1987).
A trial court’s underlying factual findings regarding the first Batson step (whether the opponent of the challenge has made a prima facie showing of discrimination) are reviewed for clear error, and questions of law are reviewed de novo. People v Knight, 473 Mich 324, 345 (2005). A trial court’s determination regarding the second Batson factor (whether the proponent of the peremptory challenge articulates a race-neutral explanation as a matter of law) is reviewed de novo. Id. A trial court’s determination regarding the third Batson step (whether the race-neutral explanation is a pretext and whether the opponent of the challenge has proved purposeful discrimination) is reviewed for clear error.” Id.