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10.1 Jury Selection: Procedural Issues

    10.1.1 Jury Selection: Juror Anonymity
    10.1.2 Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions
    10.1.3 Duty Of Court To Question Prospective Jurors Regarding Racial Bias
    10.1.4 Voir Dire Of Jurors As To Opinion Of Insanity Defense
    10.1.5 False Answers Or Concealment On Voir Dire As Structural Error
    10.1.6 Jury Selection: Challenge For Cause Based On Juror's Views On Capital Punishment
    10.1.7 Jury Selection: Written Questionnaires
    10.1.8 Jury Selection: Right To Public Trial
    10.1.9 Voir Dire: Improper To Limit Voir Dire Disclosure To Matters Which The Prospective Jurors Believe Would Preclude Impartiality
    10.1.10 Jury Selection: Constitutionality Of Court's Efforts To Secure Racially And Religiously Representative Jury
    10.1.11 Jury Selection: Defense Request For Closed Voir Dire

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    See NCJIC 17.4 [Juror Anonymity].

See also Capital Punishment Handbook [2.6.1 Voir Dire Procedure Generally].

See A Manual On Jury Trial Procedures [2.9.1 Anonymous Juries: General Principles].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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     10.1.2    Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions

PRACTICE NOTE: It is well settled that the accused has the right to be present at the examination and selection of the jury. (Wharton’s Criminal Procedure (West, 13th ed. 1989) § 429.) Error may be predicated on such absence notwithstanding waiver. (See State v. Muse (TN 1998) 967 SW2d 764, 766 [voir dire in defendant's absence violated right to be present; defendant had no opportunity to give advice or make suggestions to his lawyer, observe prospective jurors concerning their responses to personal and general matters, or participate in the peremptory challenges].)

    Even if the defendant is not totally excluded from jury selection, there may still be issues as to the presence of the defendant at sidebar or bench discussions. To the extent that these discussions involve jury selection issues, exclusion of the defendant may be reversible error. (See Wharton’s Criminal Procedure (West, 13th ed. 1989) § 429, pp. 799-804.)

    Hence, a defendant's absence from bench or sidebar discussions during voir dire may violate his or her federal (5th, 6th and 14th Amendments) constitutional rights to due process, trial by jury and public trial. (See People v. Antommarchi (NY 1996) 80 NY2d 247, 250; People v. Roman (NY 1996) 643 NYS2d 10, 14; see also Diaz v. U.S. (1912) 223 US 442, 455 [32 SCt 250; 56 LEd2d 500] [right to personal presence extends to "every stage of trial, inclusive of impaneling of the jury..."].)

    See  NCJIC 10.1.8 [Jury Selection: Right To Public Trial].

    See also NCJIC 300.15 [Presence Of Defendant At Trial].

Annotation, Validity Of Jury Selection As Affected By Accused’s Absence From Conducting Of Procedures For Selection And Impaneling Of Final Jury Panel For Specific Cases, 33 ALR4th 429.

Presence Of Defendant At Examination And Selection Of Jury. Wharton’s Criminal Procedure (West, 13th ed. 1989) § 429.

Presence Of Defendant During Jury Selection. Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) p. 1:6.

See also Capital Punishment Handbook [2.6.1 Voir Dire Procedure Generally].

See also Manual On Recurring Problems In Criminal Trials [1. Challenges For Cause].

See also Manual On Recurring Problems In Criminal Trials [2. Peremptory Challenges].

See also Manual On Recurring Problems In Criminal Trials [5a. Bench Conferences: General Principles].

See also Manual On Recurring Problems In Criminal Trials [9i. Right Of Confrontation: Defendant Has Right To Be Present During Jury Selection].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See 8th Circuit Model Jury Instructions - Criminal 1.07.

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PRACTICE NOTE: In cases where racial issues are likely to be inextricably bound up with the conduct of the trial (e.g., black defendant, white victim) the court should conduct voir dire on the issue of racial bias. Such cases "are the type of special circumstance in which 'an impermissible threat to the fair trial guaranteed by due process is posed by a trial court's refusal to question prospective jurors specifically about racial prejudice during voir dire.' [Citation.]" (People v. Wilborn (CA 1999) 70 CA4th 339, 347 [82 CR2d 583].)

See Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See Capital Punishment Handbook [2.6.3 a. Inquiry Into Racial Attitudes Of Jurors].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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PRACTICE NOTE: Jurors may have a personal objection to returning a not guilty be reason of insanity verdict against defendant. Hence, it has been held that where the defendant indicates that an insanity defense may be raised, the judge should inquire individually of each potential juror to determine whether the juror has an opinion that will prevent him or her from returning a verdict of not guilty by reason of insanity. (Commonwealth v. Seguin (MA 1995) 656 NE2d 1229, 1233.)

See Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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RATIONALE: It is necessary to emphasize to jurors that the are required to fully disclose any information regarding which they are queried during voir dire. Without such instruction, there is a danger that one or more jurors may withhold information which would prompt a challenge from counsel, or exclusion from the jury pool by the court. Such concealment impairs the meaningful exercise of peremptory challenges and may deny the defendant’s right to be tried by an impartial jury.

POINTS AND AUTHORITIES: Juror concealment of information on voir dire may be misconduct, especially if the concealment is intentional. (See e.g., Maldonado v. Missouri Pacific Ry. Co., (5th Cir. 1986) 798 F2d 764 [trial courts may receive testimony and may grant a new trial, if apprized of concealment on voir dire]; U.S. v. Vargas (1st Cir. 1979) 606 F2d 341, 344-46 [concealment of a criminal record by a juror on voir dire has been found not prejudicial to the defense in numerous cases]; see also O’Malley, Grenig & Lee, FEDERAL JURY PRACTICE AND INSTRUCTIONS 4.07 [Examination Of Jurors] (West, 5th ed. 2000).)

    To dismiss a seated juror or to obtain a new trial based on failure to disclose on material matters, it must be shown that: (1) the juror failed to honestly or correctly answer a material question and (2) a correct response would have provided a valid basis for a challenge for cause. (McDonough Power Equipment v. Greenwood (1984) 464 US 548, 556 [104 SCt 845; 78 LEd2d 663]; see also Alexander, MAINE JURY INSTRUCTIONS MANUAL 2.6 [Mistaken Responses] (Lexis, 1999); Grover v. Minnette-Mills, Inc. (ME 1994) 638 A2d 712; Dodson v. Kentucky (1986) 476 US 79 [106 SCt 1712; 90 LE2d 69]; J.E.B. v. Alabama (1994) 511 US 127 [114 SCt 1419; 128 LE2d 89]; see also Hollander & Bergman, Everytrial Criminal Defense Resource Book (West, 1999) § 2:4.)  When a juror gives a knowingly false response to a material question on voir dire the defendant is entitled to a new trial if the false answers would have been the basis for a for-cause challenge and also support a theory of implied bias.  (Williams v. Netherland (E.D. Vir. 2002) 181 FSupp2d 604, 616-17.)  Such an error is structural and harmless error analysis does not apply.  (Ibid.)

RESEARCH NOTES:

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Manual On Recurring Problems In Criminal Trials [1. Challenges For Cause].

See also Manual On Recurring Problems In Criminal Trials [2. Peremptory Challenges].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

FEDERALIZATION: To federalize this request, click here. [Constitutional Macro 7.5].

    You will be asked certain questions before we decide which of you will be part of the actual jury in this case. You must fully and truthfully disclose any information regarding anything you are asked. Do not give incomplete answers, or answers which are inaccurate or in any way misleading. It is essential that you fully and accurately answer all the questions which are put to you, to assure that an impartial jury is selected to hear this case.

[Source: NCJIC.]

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PRACTICE NOTE: General objections to the death penalty, or conscientious or religious scruples regarding the death penalty are not sufficient to excuse a juror for cause. (Witherspoon v. Illinois (1968) 391 US 510, 521-22 [88 SCt 1770; 20 LEd2d 776].) A juror may be challenged for cause, however, if the juror’s views on capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." (Wainwright v. Witt (1985) 469 US 412, 424 [105 SCt 844; 83 LEd2d 841], quoting Adams v. Texas (1980) 448 US 38, 45 [100 SCt 2521; 65 LEd2d 581].)

    In addition to being willing to consider imposition of a death sentence, if warranted, a juror must also be willing to consider the alternative sentence of life imprisonment. Morgan v. Illinois (1992) 504 US 719, 735 [112 SCt 2222; 119 LEd2d 492] held that a trial court’s refusal to inquire into whether a potential juror would automatically impose the death penalty upon conviction of a defendant was a violation of the Federal Constitution. (See also Ross v. Oklahoma (1988) 487 US 81, 84-85 [108 SCt 2273; 101 LEd2d 80] [juror who stated that he would vote to impose death automatically if jury decided that the defendant was guilty should have been removed for cause].)

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also Capital Punishment Handbook [2.6.1.1 Individual Voir Dire: Authorities].

See also Capital Punishment Handbook [2.6.2.2  Remedy For Witherspoon Violations: General Principles And Authorities].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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PRACTICE NOTE: Generally, prospective jurors are asked questions in court during jury selection. However, there are circumstances in which written questionnaires may be appropriate to preserve juror anonymity and the defendant’s right to a fair trial. (See e.g., U.S. v. Thai (2d Cir. 1994) 29 F3d 785, 801; U.S. v. Faulkner (5th Cir. 1994) 17 F3d 745, 758, fn 14; U.S. v. Salvatore (DC 1997) 110 F3d 1131,1143; U.S. v. Childress, (DC 1995) 58 F3d 693, 703-06; State v. Britt (WI 1996) 553 NW2d 528, 531; U.S. v. Edmond (1990) 730 FSupp 1144, 1149-51; Alexander, MAINE JURY INSTRUCTIONS MANUAL section 2-7 [Individual Voir Dire] (Lexis, 1999).)  In State v. Flournoy (MN 1995) 535 NW2d 354, 361-362, the court required the jurors to fill out extensive questionnaires in order to protect them from possible violence regarding the murder trial.

    See also NCJIC 10.2.9 [Voir Dire/Jury Not To Consider Penalty: Whether Jury Should Be Informed That Noncapital Murder Case Does Not Involve The Death Penalty].

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also A Manual On Jury Trial Procedures [1.10A. Pre-voir Dire Jury Panel Questionnaires: Prescreening Questionnaires Prior To Reporting For Jury Duty].

See also A Manual On Jury Trial Procedures [1.10B. Pre-voir Dire Jury Panel Questionnaires: Questionnaires Immediately Prior To Voir Dire].

See also A Manual On Jury Trial Procedures [1.10C. Pre-voir Dire Jury Panel Questionnaires: Confidentiality Of Questionnaires].

See also A Manual On Jury Trial Procedures [1.10D. Pre-voir Dire Jury Panel Questionnaires: Practical Suggestions: Use Of Questionnaires].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

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RESEARCH NOTES:

Annotation, Exclusion Of Public And Media From Voir Dire Examination Of Prospective Jurors In State Criminal Case, 16 ALR5th 152.

See also Capital Punishment Handbook [2.6.1  Voir Dire Procedure Generally].

See also A Manual On Jury Trial Procedures [2.7.1 Closed Voir Dire: General Principles].

See also Benchbook For U.S. District Court Judges [2.05.1 Jury Selection-Criminal: General Principles].

See also NCJIC 10.1.2 [Jury Selection: Right Of Defendant To Be Present At All Phases Of Jury Selection Including Bench Or Sidebar Discussions].

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PRACTICE NOTE:  The trial judge is charged with the impaneling of the jury and must determine, in the final analysis, the fitness of the individual venire persons. (Dingle v. State (MD 2000) 759 A2d 819.) "Because the task of the trial judge is to impanel a fair and impartial jury and, for the achievement of that purpose, he or she has been entrusted with broad discretion in the conduct of voir dire, it is clear that it is the trial judge that controls the process: the trial judge determines the content and scope of the questions on voir dire; how voir dire will be conducted, i.e. whether, and when, to allow counsel to ask follow-up questions; and whether, and when, a prospective juror is dismissed for cause. It follows, therefore, that it is the trial judge that must decide whether, and when, cause for disqualification exists for any particular venire person. That is not a position occupied, or a decision to be made, by either the venire or the individual venire persons. In short, the trial judge is the focal point in the process." (Dingle, 759 A2d at 825.)

    In Dingle, the trial court conducted a voir dire in which venire members were asked to disclose only those experiences or associations they believed would preclude impartiality. "The effect [of this method of voir dire] on the petitioner is particularly egregious: as we have seen, the party who would challenge a venire person for cause has the burden of presenting facts demonstrating the disqualification. As already pointed out, ‘the strike for cause process encompasses the situation where the motion to strike is made on the basis of information developed during the voir dire process, not simply where the prospective juror admits an inability to be fair and impartial.’ [Citation.] Without adequate voir dire, there simply can be no such showing. The ability to challenge for cause is empty indeed if no way is provided for developing or having access to relevant information. ... 'When the inquiries that constitute proper voir dire are restrictively interpreted, so that the voir dire process does not produce any information other than that which is automatically disqualifying, the defendant may be deprived of the right to a fair and impartial jury; he or she is completely at the mercy of the good faith, objectivity, and astuteness of the individual venirepersons. I believe that it is an abuse of discretion for the court to so restrict the voir dire process.' [Citation.]"  (Dingle, at 828.)

    Therefore, voir dire inquiry requiring response from the prospective juror, only if that juror believes he or she can be impartial, usurps the trial court’s role in jury selection.

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PRACTICE NOTE:  Race-conscious jury selection may not be condoned, however laudable the trial court's motives may be.  (U.S. v. Nelson (2nd Cir. 2002) 277 F3d 164.)  The Nelson case involved African American defendants and a Jewish victim; the district court judge took unusual steps to secure an empaneled jury containing both African Americans and Jews in a racial and religious balance that the court believed would cause the public to "understand," so that "nobody [could] complain whatever the result."  (Nelson, 277 F3d at 172.)  Defense counsel and the defendants agreed to the judge's method of jury selection.  However, the defendant's consent did not cure the trial court's errors in rejecting a valid challenge for cause and passing over an alternate for race-conscious reasons.  The convictions were reversed on the grounds that "a biased juror was seated and ... the consent given to the selection of that juror was invalid, since it was obtained in exchange for the improper impaneling of a jury chosen partly on the basis of race and religion ...."  (Nelson, 277 F3d at 201.)  

    "What the district court did in its effort to achieve a racially and religiously balanced jury was unquestionably highly unusual. It was also improper. The error is made plain by the reasoning behind Batson v. Kentucky (1986) 476 US 79, 89 [106 SCt 1712; 90 LEd2d 69] and Georgia v. McCollum (1992) 505 US 42, 59 [112 SCt 2348; 120 LEd2d 33], in which the Supreme Court held that neither prosecutors nor defendants could, without violating the Equal Protection Clause, exercise peremptory strikes on the basis of race. After these cases it is beyond peradventure that the racial and religious reconstruction of the jury that occurred in this case could not constitutionally have been achieved at the instigation of the parties. And what the district court could not allow the parties to do, it also could not do of its own motion even with the consent of the parties. Indeed, the violation of equal protection that occurs when a person is excluded from a jury on the basis of his race (or religion) would seem only to be made more serious when the exclusion occurs at the behest not just of the parties but of the court itself, whose duties under the Equal Protection Clause are particularly strong. And, although the motives behind the district court's race- and religion-based jury selection procedures were undoubtedly meant to be tolerant and inclusive rather than bigoted and exclusionary, that fact cannot justify the district court's race-conscious actions. The significance of a jury in our polity as a body chosen apart from racial and religious manipulations is too great to permit categorization by race or religion even from the best of intentions."  (Nelson, 277 F3d at 207-208.)  

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