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EXERCISING PEREMPTORIES
THE ADVOCATE Volume 30, No. 1 January 2008
RCr 9.36 (2) provides: “After the parties have been given the opportunity of challenging jurors
for cause, each side or party having the right to exercise peremptory challenges shall be handed
a list of qualified jurors drawn from the box equal to the number of jurors to be seated plus the
number of allowable peremptory challenges for all parties. Peremptory challenges shall be
exercised simultaneously by striking names from the list and returning it to the trial judge.”
The Commonwealth can give up peremptory strikes if it looks like the remaining jury pool is
getting too small. Fitzgerald v. Commonwealth, 148 S.W.3d 817 (Ky.2004). The defendant,
however, must use all his peremptories or he waives the issue of any biased jurors sitting on the
jury. See, e.g., Baze v. Commonwealth, 965 S.W.2d 817 (Ky.1997). Neither side can hold back
peremptories to first see who the other side has struck. See Baze v. Commonwealth, 965 S.W.2d
817 (Ky.1997).
SWEARING OF THE JURY
Some courts swear the jurors to answer truthfully the questions they will be asked, prior to the
beginning of voir dire. According to RCr 9.36(3), however, administering the actual oath of a
juror found in KRS 29A.300 comes after the strikes for cause and the peremptory strikes, when
the final jury which will try the case is finally sat. KRS 29A.300 says: “The court shall swear the
petit jurors using substantially the following oath ‘Do you swear or affirm that you will impartially
try the case between the parties and give a true verdict according to the evidence and the law,
unless dismissed by the court?’” The swearing of the jury is the moment when double jeopardy
protections attach, and the moment after which no further challenges can be made to the
composition of the jury.
IV. THE COMMONWEALTH’S CASE
ORDER OF TRIAL
The order of the guilt/innocence phase of a trial is governed by RCr 9.42. For the order of trial
in the sentencing phase of a felony cases, see KRS 532.055(2)(c). The PFO statute is KRS
532.080. The death penalty sentencing statute is KRS 532.025. See also “Bifurcation.”
RCr 9.42 allows rebuttal evidence from either party. The rule regarding rebuttal evidence is that
the Commonwealth should present all of its substantive evidence concerning the elements of
the offense in its case-in-chief instead of waiting to present it in rebuttal, especially if the
defense has already rested. It is taking undue advantage of a defendant to withhold important
evidence till rebuttal. See, e.g., Archer v. Commonwealth, 473 S.W.2d 141 (Ky.1971), and Gilbert
v. Commonwealth, 633 S.W.2d 69 (Ky.1982).
In Rowe v. Commonwealth, 50 S.W.3d 216 (Ky.App.2001), it was error for the trial court to allow
the prosecution to introduce evidence of the defendant’s charges involving disorderly conduct
and the use of obscene language in public as rebuttal to the defendant’s assertion that he had
never used obscene language in public. Whether the defendant used obscene language was
entirely collateral to the issue of whether the defendant assaulted the victim.
The defendant’s prior convictions can be used to impeach him on the issue of credibility, or
they can be used to impeach any character witness called by the defendant. But when character
was not at issue, it was improper for the prosecution to offer those convictions in rebuttal in
order to show the bad character of the defendant. The convictions were inadmissible for that
purpose. Hayes v. Commonwealth, 175 S.W.3d 574 (Ky.2005).
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