Jury selection in magistrate court

In State v. Johnson, decided January 4, 2012, the S.C. Court of Appeals held that section 22-2-90 of the South Carolina Code does not require that a minimum of 40 jurors be present in the jury pool in magistrate court. This is an issue that comes up frequently, particularly in the smaller counties where people tend to not show up for jury duty and the courts never notice enough potential jurors – generally the magistrates have held that where there are enough present to select a jury, meaning we don’t run out of potential jurors before all are seated, there is no problem.
The Court of Appeals held that section 22-2-90 requires that a minimum of 40 jurors be summoned for the jury pool, but not that 40 jurors be present at jury selection:

We agree with the State that there is no provision in Chapter 2 of Title 22 specifically establishing a minimum number of jurors required to be present in the jury pool before jury selection can proceed. The plain wording of section 22-2-90 requires only that a person selected by the presiding magistrate draw a minimum of forty jurors to serve for a one week term. It does not require that forty jurors be present and available in the jury pool before jury selection can proceed for a trial.
Further, section 22-2-100 mandates the individual names be randomly drawn until six jurors and four alternates are selected, with each party being allowed a maximum of six peremptory challenges as to primary jurors and four peremptory challenges as to alternate jurors. Thus, as noted by the State, allowing for the maximum number of primary (six) and alternate (four) jurors along with the maximum number of combined peremptory challenges (twenty), thirty jurors would be sufficient to meet such needs

Basically, if enough potential jurors are present to account for the number of jurors to be selected and the number of strikes allowed to each side, there’s enough jurors. The opinion says 30 is enough, accounting for 6 jurors, 6 strikes for each side, 4 alternates, and 4 strikes for each side as to the alternates. Typically we only seat one alternate in the magistrate court, which means that in actual practice 21 jurors is enough – 6 jurors, 6 strikes for each side, 1 alternate, and 1 strike for each side as to the alternate.

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