I decided that this morning we are going to have jury selection by what has commonly been referred to as hot box. That means we are going to call 12 people into the jury box who will be examined by the Court and by counsel. All other people will remain in the gallery and be able to listen to court proceedings. At the time that 12 people have been passed for cause, then each party will have the opportunity to exercise a peremptory challenge and the State will go first, if you wish to exercise one or you may pass. Then the defendant will have the opportunity to exercise a peremptory challenge or may pass, until such time as both parties have either passed, leaving 12 people in the jury box, or each party has exercised six peremptory challenges, then we will have our jury.On appeal, Mr. Crabb argued that this procedure violated K.S.A. 22-3411a, which provides that the district court shall cause enough jurors to be called, examined, and passed for cause before any peremptory challenges are required. The COA agreed:
Based on Mitchell, it is clear that the district court erred by using the hot-box method of jury selection over Crabb's objection, as opposed to using the statutory method of jury selection. Both jury selection methods allow the parties to exercise all the peremptory challenges allowed by statute. See K.S.A. 2014 Supp. 22-3412. However, the statutory method of jury selection is superior to the hot-box method for at least two reasons. First, as the Mitchell court noted, the hot-box method requires counsel to exercise their peremptory challenges piecemeal rather than in comparison to the entire panel. How can a party properly exercise a peremptory challenge to strike a juror when the next juror seated by the court may be even worse, from that party's perspective, than the juror who was initially challenged? The statutory method of jury selection allows counsel to examine all prospective jurors before any peremptory challenges are required, thereby allowing counsel to compare all prospective jurors before deciding how the peremptory challenges should be exercised.The COA went on to find that the error was not harmless and therefore ordered a new trial.
Second, under the hot-box jury selection method, after the parties have exercised all peremptory challenges and the final juror is seated in the jury box, that final juror may only be removed for cause. There is no remaining peremptory challenge for the final juror seated by the court. Thus, unless a party is successful in striking the final juror for cause, the final juror will remain on the jury. And a party may not want to run the risk of offending the final juror by challenging that juror for cause, in case the trial judge should overrule the challenge.
[Update: the state did not file a PR and the mandate issued on March 12, 2015]