Challenging the Initial Assembling of the Jury Panel

[Administrator]

Challenging the Initial Assembling of the Jury Panel

The only method for challenging jury selection is a motion to stay under 28 U.S.C. 1867; U.S. v. Ovalle, 136 F.3d 1092, 1098-1099 [6th Cir.1998]; Morro v. City of Birmingham, 117 F.3d 508, 518-19 [11th Cir.1997]; U.S. v. Flores-Rivera, 56 F.3d 319, 326 [1st Cir.1995]; U.S. v. Young, 38 F.3d 338, 342 [7th Cir.1994]. Strict compliance with the procedural requirements of the statute is essential. U.S. v. Phillips, 239 F.3d 829, 841 [7th Cir.2001] [Failure to make a timely motion and provide the required sworn statement of evidence precluded statutory challenge]; U.S. v. Young, 38 F.3d 338, 342 [7th Cir.1994] [Statutory challenge waived by failing to timely raise objection]; U.S. v. Contreras, 108 F.3d 1255, 1266 [10th Cir.1997] [Procedural requirements are designed to give courts an opportunity to evaluate the alleged non-compliance and correct it before wasting judicial resources].

Any statutory challenges to irregularities in jury selection must be made before voir dire begins. Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205 [5th Cir. 1992] [Miss.]. When basis for challenge to juror is timely shown, failure to object constitutes waiver of right to attack composition of jury. Id.

A motion to stay the proceeding because the jury was not selected in compliance with the statute must be made before voir dire or within seven days after the party either discovered or could have discovered the noncompliance, whichever is earlier. 28 U.S.C. 1867[c]; Morro v. City of Birmingham, 117 F.3d 508, 518-19 [11th Cir.1997]. In most cases, the challenge must be made before voir dire, or else it is waived. Morro v. City of Birmingham, 117 F.3d 508, 518-19 [11th Cir.1997]; U.S. v. Young, 38 F.3d 338, 342 [7th Cir.1994]; Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 209 [5th Cir.1992]. Counsel's actions during voir dire are critical. If counsel was on notice of possible prejudice but failed to follow up with appropriate questions during voir dire, there will be no post-trial interview. Hampton v. Kennard, 633 So.2d 535, 536-537 [Fla. 2d DCA 1994]; Blaylock v. State, 537 So.2d 1103, 1107 [Fla. 3d DCA 1988]; Petroleum Carriers Corp. v. Summerlin, 112 So.2d 12, 14-15 [Fla. 2d DCA 1959] ].

Permitting juror interviews is within the court's broad discretion. Williams v. State, 689 So.2d 393, 397-398 [Fla. 3d DCA 1997]; Schofield v. Carnival Cruise Lines, 461 So.2d 152, 155 [Fla. 3d DCA 1984]; State v. Hamilton, 574 So.2d 124, 130-131 [Fla. 1991]; Sentinel Star Co. v. Edwards, 387 So.2d 367, 374 [Fla. 5th DCA 1980] ]. An inquiry is permissible whenever the trial court entertains ''serious doubt'' over the existence of juror misconduct. Baptist Hosp. of Miami, Inc. v. Maler, 579 So.2d 97, 100 [Fla. 1991]; State v. Hamilton, 574 So.2d 124, 130-131 [Fla. 1991]. The appellate courts, naturally, will only reverse decisions whether to hold juror interviews when it appears that the trial court abused its discretion. City of Winter Haven v. Allen, 589 So.2d 968, 969 [Fla. 2d DCA 1991]. Examples: In a personal injury action, a juror failed to disclose in voir dire that he had once been a defendant in a personal injury action. Gray v. Moss, 636 So. 2d 881, 882 [Fla. 5th DCA 1994]; Bernal v. Lipp, 562 So.2d 848, 849 [Fla. 3d DCA 1990]. Also, in a personal injury action arising from a traffic accident, a juror failed to disclose on voir dire that he had once had a policy with one of the defendants, an insurance carrier. The juror had made a claim against the carrier, who denied it, and the juror did not renew the policy. Industrial Fire & Cas. Ins. v. Wilson, 537 So.2d 1100, 1103 [Fla. 3d DCA 1989]. Also, in a personal injury action against a county bus line after a collision, a juror gave a false response when asked whether any of his family had ever been injured in an accident. In fact, his daughter had been hurt in a traffic accident. Minnis v. Jackson, 330 So. 2d 847, 848 [Fla. 3d DCA 1976].

The motion must be in writing and include a sworn statement of facts that, if true, would
constitute a substantial failure to comply with the provisions of the statute. 28 U.S.C. 1867[d]; U.S. v. Contreras, 108 F.3d 1255, 1267-1268 [10th Cir.1997]. Compare: U.S. v. Calabrese, 942 F.2d 218, 222 [3d Cir.1991] [Oral motion sufficient because defendant presented sworn testimony of clerk about exclusionary practices].

The motion must state that the district’s jury selection plan does not comply with statutory or constitutional requirements either in its substance or in its application. 28 U.S.C. 1867[c]. An objection to the selection process generally alleges a systematic exclusion of a distinctive group in the community. Groups based on race, gender, or ethnic origin are distinctive groups in the community. Lockhart v. McCree, 476 U.S. 162, 175, 106 S.Ct. 1758, 1766 [1986]. A prima facie case consists of the following elements:

**The excluded group is a distinctive group in the community. U.S. v. Hardwell, 80 F.3d 1471, 1486 [10th Cir.1996]; U.S. v. Cannady, 54 F.3d 544, 546-547 [9th Cir.1995] [African-Americans, Hispanics, and Asians are minorities recognized as distinctive groups]; U.S. v. McKinney, 53 F.3d 664, 671 [5th Cir.1995]; U.S. v. Purdy, 946 F.Supp. 1094, 1100 [U.S.D.C. Conn.1996] [While noting that African-Americans and Hispanics constitute distinctive groups, court declined to consider under representation of African-Americans and Hispanics combined into a single group].

**The group is not represented fairly in relation to its numbers in the community. U.S. v.
Hardwell, 80 F.3d 1471, 1486 [10th Cir.1996]; U.S. v. Cannady, 54 F.3d 544, 546-47 [9th
Cir.1995].

The party is entitled to a hearing on the motion. 28 U.S.C. 1867[d]. The party can present any relevant evidence, which may include the testimony of the jury commissioner or clerk and any records and papers used by the commissioner or clerk. Id.

To successfully challenge the selection process successfully, the party must show a substantial failure to comply with the U.S. Constitution or the provision of the JSS Act. Floyd, 996 F.2d at 949; Timmel v. Phillips, 799 F.2d 1083, 1085-86 [5th Cir.1986].

If the party successfully challenges the selection process, the proceedings will be stayed until a jury is selected that conforms to the statute. 28 U.S.C. 1867[d]. This is the only remedy; the statute does not contemplate a new trial. Dawson v. Wal-Mart Stores, Inc., 978 F.2d 205, 209 [5th Cir.1992].