Request By:
Mr. Dell Wallen Littrell
Attorney at Law
32 Lynnway Drive
Winchester, Kentucky 40391
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You raise two questions concerning qualifying as a juror in civil cases.
Question No. 1:
"Whether a potential juror in a civil matter should be disqualified for cause if he is related by blood to a partydefendant that will be a witness in the action and said juror recognizes the kinship?"
For statutory disqualification, not involving this specific situation, see KRS 29.025 and 29A.080. It is our opinion that this situation is not automatically a basis for a disqualification for cause. However, on voir dire, questions could be directed to the potential juror concerning whether, for purposes of a possible disqualification for cause, he is willing to rid his mind of predilections and whether he is able to conscientiously give to the litigants a fair and impartial trial according to the evidence and the instructions of the court. Counsel must be given an opportunity to question prospective jurors on voir dire to discover whether or not any of them have bias or prejudice in the case to be tried.
Temperly v. Sarrington's Administrator, Ky., 293 S.W.2d 863 (1956) 868. If such bias or prejudice is discovered upon such voir dire examination, the trial judge can rule accordingly in dismissing the juror for such cause.
The statutes are silent as to what specifically constitutes challenge for cause [the subjective element], this being left to the court under the system of challenging for cause, each cause being determined, when the question is properly raised, on the basis of each individual juror. The purpose of the right of challenge for cause is to prevent an incompetent, partial, biased and otherwise disqualified person from serving as a juror. Thus the court's power to reject for cause is not confined to enumerated grounds of challenge, but may be exercised for any cause which the court in its discretion deems sufficient to disqualify.
Halleron v. Carrithers Creamery, Ky., 239 S.W.2d 92 (1951) 94. See KRS 29.270 and 29.290, providing for challenges for cause and peremptory challenges. In ruling upon challenges for cause, the court has a wide discretion, and his ruling will not be disturbed upon appeal in the absence of an abuse of his discretion.
Wilder v. Louisville Railway Company, 157 Ky. 17, 162 S.W. 557 (1914). See the annotation at 85 ALR2d 851, dealing with the juror's relationship to a witness, in a civil case, as a ground of disqualification. In 47 Am.Jur.2d, Jury, § 217, it is written that in the absence of a statute declaring otherwise, all ordinary objections based upon a disqualification of jurors in a civil case must be taken at the beginning by challenge, and the failure to question the juror on this in support of a challenge constitutes a waiver of the cause for challenge. See CR 47.01, dealing with the procedural aspects of voir dire examination of prospective jurors.
Question No. 2:
"Whether a potential juror in a civil matter is disqualified for cause if his uncle has the identical type case pending with the same party-plaintiff in same circuit court?"
Our answer is the same as for question no. 1. It is a matter for possible challenge for cause under the principles outlined above.