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E.
Trial by Jury

Either party to a civil suit in magistrate's court is entitled to a trial by a jury. A party desiring a jury trial in a civil case must make a written request at least five working days prior to the original date set for trial. (Rule 13, SCRMC) Upon the proper demand for a jury trial by either party, the magistrate must impanel a jury of six people, following the procedure in § 22-2-80 through § 22-2-140, who will determine the outcome of the case. If neither party requests a jury trial, the magistrate may hear and decide the case himself.

1. Jury Selection

The chief magistrate of the county is required to forward to each magistrate a precinct-by-precinct list of qualified electors in the district or vicinity of each magistrate's court. During the first thirty (30) days of each calendar year, these names must be placed in the jury box prepared as provided in § 22-2-60. Section 22-2-80 provides the manner of selection of the jury list for a single trial. Subsection (A) provides, “a person appointed by the magistrate who is not connected with the case for either party must draw. . .at least thirty (30) names, but not more than one hundred (100) names, from the jury box, and this list of names must be delivered to each party, or to the attorney for each party. Section 22-2-80 also provides that, “if a court has experienced difficulty drawing a sufficient number of jurors from the qualified electors of the area, and, before implementing a process pursuant to this subsection, seeks and receives the approval of South Carolina Court Administration, the person selected by the presiding magistrate may draw at least one hundred (100) names, but not more than a number determined sufficient by Court Administration for the jury list, and shall deliver this list to each party, or the attorney for each party. §22-2-80 (B). Request for prior approval must be in writing.

Section 22-2-90 provides an additional procedure for drawing jury lists for courts having scheduled terms of court. Under this section, “[n]ot less than ten nor more than forty-five days before a scheduled term of jury trials, a person selected by the presiding magistrate must draw at least 40 jurors but not more than one hundred jurors to serve one week only.” Section 22-2-90 provides that the courts which schedule terms for jury trials may receive prior approval from South Carolina Court Administration to “draw at least one hundred names but not more than a number determined sufficient by Court Administration to serve one week only” if the court has experienced difficulty in drawing a sufficient number of jurors. § 22-2-90 (C). Request for prior approval must be in writing. “Immediately after such jurors are drawn, the magistrate shall issue his writ of venir facias for such jurors regarding their attendance on the first day of the week for which they have been drawn and such writ shall be forthwith delivered to the magistrate’s constable or the sheriff of the county concerned.” § 22-2-90 (D).

Section 22-2-100 provides that “[t]he names drawn pursuant to either Section 22-2-80 or Section 22-2-90 must be placed in a hat or box and individual names randomly drawn out one at a time until six jurors and four alternates are selected. Each party has a maximum of six (6) peremptory challenges as to primary judges and four (4) peremptory challenges as to alternate jurors, and other challenges for cause as the court permits. If for any reason it is impossible to select sufficient jurors and alternates from the names drawn, names must be drawn randomly from Compartment ‘A’ until sufficient jurors and alternates are selected.” If at the time set for the trial, there are not sufficient jurors to proceed because one or more have failed to attend, have not been summoned, or have been excused or disqualified by the court, additional jurors must be selected from the remaining names or in the manner provided in Section 22-2-80 or Section 22-2-100.”

2. Voir Dire

Once the six jurors are chosen but prior to their being sworn, the magistrate should conduct an informal "voir dire." Voir dire means "to speak the truth" in Anglo-French, and is a short inquiry by the judge to determine whether bias or prejudice exists in the minds of any of the jurors. The magistrate may ask his own questions or may solicit questions from the parties, or their attorneys. Based on the answers to the inquires, the magistrate should determine, in his discretion, whether each juror can serve impartially or should be disqualified. Parties to actions may request specific questions be asked jurors during this process. Approval or disapproval of those questions is within the sole discretion of the trial judge and will not be grounds for reversal absent an abuse of discretion. The following are typical "voir dire" questions, but are, by no means, exhaustive:

1. Are you related by blood or marriage to either party?

2. Have you any special interest in this action?

3. Have you read an account of this action in the newspaper?

4. Have you discussed this action with anyone or has it been discussed in your presence?

5. Have you formed or expressed an opinion as to the outcome of this action?

(5a) If you have such an opinion, is it so fixed that if selected as a juror, you could not leave that opinion behind and reach your verdict based solely upon the testimony and other evidence presented at trial, and the law as it will be charged to you?

6. Do you hold any bias or prejudice, for or against either party to this action?

7. Do you know of any reason why you could not give a fair and impartial trial to any of the parties to this action?

If a juror should answer "yes" to one or more of these questions, the magistrate should examine that juror carefully to see if he should be disqualified. If it appears that disqualification is necessary, the magistrate should summon other prospective jurors until six jurors are chosen.

3. Disqualification, Exemption, and Excuse of Jurors

In South Carolina, there are several grounds for disqualifica­tion, exemption, or excuse from jury service. The following show the allowances in each category:

Disqualifications: You may not serve as a juror: If you have been convicted in a State or Federal court of a crime punishable by more than one year; or if you are unable to read, write, speak, or understand the English language; or if you are unable to render jury service due to mental or physical infirmity; or if you have less than a 6th grade (or equivalent) education; or if you are a County officer or court employee. (See §§ 14-7-810 and 14-7-820).

Exemptions: Section 14-7-840 provides: "No person is exempt from service as a juror in any court of this State except men and women over sixty-five years of age. A person exempt under this section may be excused upon telephone confirmation of date of birth and age to the clerk of court or chief magistrate. Notaries public are not considered state officers and are not exempt under this section." Please Note that this is an “exemption,” not a “disqualification,” from jury service. Many individuals over the age of 65 wish to serve on a jury and are constitutionally entitled to that duty. These individuals are entitled to serve and must be issued a juror summons if a court draws their name.

Section 24-3-930 provides that “[a]ll guards, keepers, employees and other officers employed at the Penitentiary shall be exempted from serving on juries…”

Note: Please Note that these are exemptions, not disqualifications from jury service. These individuals are entitled to serve and must be issued a juror summons if a court draws their name.

Excuses: You may be excused from jury service if you can show good and sufficient excuse, by application, as to why you should not have to serve; or if you are a person with legal custody of children under the age of seven years and you show by affidavit that you cannot provide adequate care while serving as a juror. Typical reasons may include temporary or permanent physical disabili­ty or women with legal custody of children under the age of seven years. Section 14-7-860 provides that, “upon submitting an affidavit to the clerk of court requesting to be excused from jury duty, a person either may be excused or transferred to another term of court by the presiding judge if the person performs services for a business, commercial, or agricultural enterprise, and the person’s services are so essential to the operations of the business, commercial, or agricultural enterprise that the enterprise must close or cease to function if the person is required to perform jury duty.” Section 14-7-860 further provides that a person who is the primary caretaker of a person sixty-five years of age or older or a severely disabled person who cannot care for himself or cannot be left unattended may be excused from jury duty by the presiding judge.

Postponement: A public or private school student or school employee, a person primarily responsible for the elementary or secondary education of a child in a home or charter school, or a person who is an instructor at an institution of higher learning including a technical college, selected for jury service during the school term may request a postponement to a date that does not conflict with the school term. For purposes of this subsection, a "student" is a person enrolled in high school or an institution of higher learning, including technical college. A "school employee" is a person employed as a teacher, certified personnel at the building level, or bus driver by a school, a school system, or a school district offering educational programs to grades K-12 and to institutions of higher learning, including technical colleges. "School term" means the instructional school year, generally from September first until May thirtieth for not more than one hundred eighty days. (§§ 22-2-85 and 14-7-845). The provisions of §14-7-870 require that postponed juror's names be placed on the succeeding panel of the same term, next term, or subsequent term court. However, the provisions of this section do not apply to any juror who has a child less than seven years of age, is the primary caretaker of a person sixty-five or older, or is the primary caretaker of a severely disabled person who is unable to care for himself or cannot be left unattended.

4. Disobedience to Juror Summons

Section 22-2-130 permits the magistrate to punish any properly summoned prospective juror who fails to respond to the summons. If the disobedient juror fails to contact the magistrate and offer a sufficient reason for his delinquency within 48 hours, he shall pay a civil penalty not exceeding $100.00. Should that person fail or refuse to pay the civil penalty, the magistrate may find that person in contempt and punish him according to § 22-3-950. No person shall serve on a magistrate's court jury more than once every calendar year.

5. Miscellaneous Jury Matters

Individuals serving on a magistrate's court jury or on a coroner's jury are entitled to receive $10 per day, plus mileage. The county in which the jury sits is responsible for the payment of this compensation. (§ 22-2-160).

The mileage and compensation should be determined at the end of trial after final determination.

6. Preliminaries to Jury Trial

Once the six jurors have been drawn, the magistrate should administer the oath. A suggested form is: "Do each of you solemnly swear or affirm that you will well and truly try this cause and render a true verdict according to the law and evidence produced before you, so help you God?"

However, if for any reason, religious or otherwise, a juror who wishes to serve has objection to the making of the oath, the juror may make a solemn and conscientious affirmation and declaration of his duty to serve and render a true verdict, and this is sufficient to constitute a valid oath. (§ 14-7-1130).

The magistrate, at this point, may appoint a foreman from the six jurors impaneled, or he may allow the jury to retire and choose their own. (§ 14-7-1310).

7. Introductory Remarks

After the jurors are seated, the magistrate should make some introductory remarks, with the purpose of informing the jury about the general nature of a trial and the specific nature of the trial which they are to hear. A brief outline of the steps to be followed during the trial which could be helpful to the jury might be covered as below:

"The parties, or their attorneys, will make an opening statement of the case as they see it, the plaintiff making his statement first and the defendant following; this opening statement is purely a matter of choice and no conclusions should be drawn by you (the jury) if one party or both prefer not to make an opening statement."

"The opening statement is not evidence, but merely a statement by the party as to how they view the case."

"After the opportunity for making the opening statements ends, the plaintiff will present his case in chief, in which he offers witnesses or whatever other forms of evidence he deems necessary to prove his case; when the plaintiff rests his presentation, the defendant then will present his case in chief, and if the defendant has a counterclaim, he must present any evidence to support it at that time."

"The parties next will be given an opportunity to offer evidence to rebut that of the opposing party, but this is their choice."

"The parties will make their closing arguments; which are merely their summations of the case and are not to be considered as evidence." (1)
"You will then be given your instructions, or the charge, by me regarding the law governing the case; you must take the law and apply it to the facts of the case as you interpret them."

"Finally, you will retire to deliberate on the case and render your verdict."

Aside from the explanation of the trial procedure, some of the following instructions, where appropriate, may be made:

"It is your duty to determine the facts of the case from the evidence, and from reasonable inferences arising from such evidence. You must not indulge in guesswork or speculation."

"The evidence which you are to consider is the testimony of the witnesses and exhibits admitted into evidence as well as any admissions or stipulations."

"A witness is a person who testifies in a case."

"At certain times during the trial, there may be objections to evidence. The admission of evidence is governed by rules of law. When an objection is made, you must not draw any inference because of the objection or from the fact that the question was asked."

"You must not consider any evidence that I instruct you to disregard. You must not infer that I am leaning in favor of either party because of that ruling. You are reminded that opening statements and closing arguments, if offered, are only for the purpose of assisting you in understanding the evidence in applying the law, but do not constitute either law or evidence."

"It is your duty to carefully examine and weigh the testimony of the witnesses and the evidence as a whole. You are the sole judge of the credibility of a witness, and the weight to be given to the testimony of a witness. You may consider the interest or lack of interest of the witness in the result of this trial, the bias or prejudice of the witness if any has been shown, the conduct and demeanor of the witness, the witness' recollection and opportunity for observation, the reasonableness of the testimony, and all the facts and circumstances that either tend to support or discredit the testimony of the witness. You may give to the testimony of each witness such weight and credit as you believe it is fairly entitled to receive."

"In your deliberations, you must not be influenced by sympathy, passion, prejudice or bias, or your personal feelings for or against the parties or their counsel. It is your duty to follow the instructions given to you at the end of the case concerning the governing law."

"Until this case is submitted to you at the time you are instructed to begin your deliberations, you must not discuss the case with anyone, or remain in the hearing of anyone discussing the case, and you must not read any newspaper accounts, or listen to any radio or television broadcasts discussing it. Once the case is submitted, you may only discuss the case in the jury room and only with all jurors present. You must keep an open mind and not reach a decision on any issue until it is submitted for your deliberation under the instructions."

"If any person tries to discuss the case with you, you are to advise them you are a juror in the case and cannot discuss it and then you must report that incident to me."

8. Counterclaims

The existence of a counterclaim in an on-going action requires special attention by the judge and jury to insure its proper consideration. As the counterclaim is the defendant's claim of entitlement separate from the claim of the plaintiff's, it must receive similar consideration by the jury at some point in the trial proceeding.

The judge should clearly state at the outset of the trial what the issues of the claim and counterclaim are, thereby apprising the jury of its responsibility to ultimately render separate verdicts on the claim and counterclaim. A simple instruction to the jury should be included in these initial charges where such a counterclaim exists. Please be reminded that if the amount of a counterclaim exceeds your jurisdictional limit, the case should be transferred to circuit court.

9. Contempt

The power of a magistrate to punish for contempt is bestowed by § 22-3-950. This section permits the magistrate to punish for contempt of court by imposition of sentences up to the limits imposed on magistrates' courts in § 22-3-550, which is currently a fine of five hundred dollars, thirty days imprisonment, or both. Actions under this section punishable by contempt are persons insulting the magistrate or a juror or anyone willfully guilty or unduly disturbing a court proceeding.

Op. Att'y Gen., No. 78-191, states that, "Pursuant to Section 22-3-950, magistrates may punish all behavior within the definition of contemptuous done in their presence while performing the duties of their office as contempt of court. This would include contemptuous actions during bond proceedings, preliminary examinations, and warrant issuing proceedings."

A judge's contempt power is limited to when he or she is in the courtroom while court is in session. Extreme discretion should be used when contemplating a contempt citation. See: In the Matter of Kenneth Edwards, 319 S. C. 57, 459 S. E. 2d 837 (1995). State v. King, 306 S.C.335, 412 S.E.2d 375 (1991). State v. Harper, 297 S. E. 257, 376 S. E.2d 272 (1989). Spartanburg County DSS v. Linda Padgett In re Karen K. Rogers, 296 S. C. 79, 370 S. E.2d 872 (1988).

Section 40-5-510 should be consulted when finding an attorney in contempt. This section provides: "Attorney, solicitors and counsellors may be removed or suspended and also, in aggravated cases, imprisoned, not exceeding twenty-four hours, by the several courts in which they have been admitted to practice, if, in the presence of such court, they are guilty of any disorderly conduct causing an interruption of business or amounting to an open and direct contempt to the court, its authority or person."


1. Although the order of closing arguments is not set by statute or court rule, the traditional order of the closing arguments is Plaintiff-Defendant-Plaintiff.