CHAPTER 27

SELECTING AND EMPANELLING THE JURY

§ 27.01 Assembling the Jury Venire

§ 27.02 Voir Dire Examination

§ 27.03 - Background Information

§ 27.04 - The Scope of Examination

§ 27.05 - Individual and Segregated Voir Dire

§ 27.06 Challenges

§ 27.07 - Challenges for Cause

§ 27.08 - Preserving Claims of Error

§ 27.09 - Late-Disclosed Grounds for Challenge

§ 27.10 - Peremptory Challenges

§ 27.11 - Limits on Use of Peremtory Challenges

§ 27.12 Preserving Jury Integrity After Voir Dire - Jury

Sequestration

§ 27.13 - Delays Between Voir Dire and Trial

§ 27.01

Assembling the Jury Venire

Selection of the jury venire, the group of potential jurors, is the responsibility of county jury commissions made up of the superior court clerk and the two side judges,{1} and the process is governed in detail by statutes{2} and court rules.{3} The Franklin County procedures described in State v. Pelican{4} are typical:

The Franklin County Jury Commission composes a "Master List" of 1500 names of potential jurors who are randomly drawn from the voter registration lists of towns within the county and a list of residents over eighteen years old with driver's licenses. The Master List provides the names of potential jury panels and is updated every two years. . . . Once the Master List of 1500 names was complete, the Commission assigned a number to each name. Tags were marked with these numbers and deposited in a rotating canister called a "wheel." When the Franklin District Court requested jurors, the Commission would draw at random 200 to 250 tags from the wheel in order to extract a pool of 150 qualified jurors. Once the tags were pulled and matched with the corresponding names, those people were sent jury questionnaires. In response to its requests the Franklin District Court Clerk received a list of 142 qualified jurors in July of 1988 and a list of 147 qualified jurors in January of 1989.{5}

The district court clerk then summons a jury venire of about fifty potential jurors from these lists, in the hope that about forty will actually show up.

The venire is supposed to represent a fair cross section of the community, a subject which is discussed in another section.{6}

§ 27.02

Voir Dire Examination

From the assembled venire the clerk draws the names of twelve potential jurors, who are seated in the jury box and examined.{7} Six "replacement" jurors may also be seated with the original twelve and examined with them.{8}

Voir dire is a critical stage of trial at which the defendant has a right to be present and to the assistance of counsel; the judge should accordingly avoid ex parte communications with members of the venire.{8.5}

In Vermont voir dire is conducted by the attorneys under court supervision; the judge can ask additional questions but can conduct the voir dire himself or herself only by stipulation of the parties.{9} The judge does have sua sponte power to exclude potential jurors who may not be impartial.{10}

Experienced trial lawyers stress the function of voir dire, not only in putting together a sympathetic jury, but also as an early forum of advocacy. Voir dire is a major subject in itself,{11} and lawyers working with social scientists have developed sophisticated techniques for selecting favorable juries on the basis of demographic information and general attitudes.{12}

§ 27.03

- Background Information

Counsel has access to the jury questionnaires, which contain important demographic information: date of birth, address, employment, education, marital status (single, married, widowed, or divorced), number of children, and spouse's name and occupation. A sample questionnaire is included in an appendix.{13} Additional information may be implicit in the answers: home address, occupation, and education should be good indicators of income and social class; name and address may be clues to ethnicity, etc.

Counsel can supplement the official questionnaire with their own and send it directly to the members of the venire or (with the other side's and the court's consent) arrange to have the mailing done through the court clerk's office - which is likely to produce a better response rate. In either case the addressee should be advised that responses are optional. Questions can ask for background facts (e.g., whether the juror or anyone close to them has been a crime victim) or general statements of opinion.{14} The technique has proved useful in ferreting out expressions of bias and in avoiding lengthy voir dires.

§ 27.04

- The Scope of Examination

V.R.Cr.P. 24, carrying forward pre-rules law, gives the parties the right to "conduct the examination under the supervision of the court. . . ."{15} In a pre-rules decision the Vermont Supreme Court wrote that the scope of questioning was "within the discretion of the trial court[,]" but that the inquiry should not "be confined to matters directly affecting the legal qualifications of the juror, and, ordinarily, considerable liberality is and should be indulged - to the end that the [defendant] may possess himself of sufficient information regarding the jurors to guide him properly in the exercise of his right of challenge."{16} This standard, such as it is, should assure the right to ask questions about the jurors' statutory qualifications,{17} knowledge of facts in issue, relationships with the defendant or witnesses at the trial, and any facts bearing on possible bias.

Questioning about legal concepts such as reasonable doubt and the presumption of innocence is also permissible, to probe the juror's "willingness to follow the court's instructions on the subject[,]" but the judge can prevent a lawyer from asking jurors to define reasonable doubt.{18}

Although the judge has broad discretion to limit questioning, there are some inquiries which the defense has a constitutional right to insist on. Voir dire, as a constitutional matter, is "a necessary part of trial by jury."{19} In Hamm v. South Carolina,{20} the United States Supreme Court held that in certain factual contexts the defense has a due process right to question prospective jurors about their racial prejudice, but subsequent cases limited this right to a few racially charged cases.{21} In Mu'Min v. Virginia{22} the Court held that a defendant has no sixth amendment right to ask what jurors have read or heard about a high publicity case. The result is hard to square with the general rule that voir dire should be broad enough to "guide [defense counsel] properly in the exercise of the right of challenge."{23} And the Vermont Supreme Court's fair press/free trial decisions, favoring press access and emphasizing the value of voir dire in ferreting out jurors who have been exposed to prejudicial publicity,{24} point to a more generous state rule.

§ 27.05

- Individual and Segregated Voir Dire

In the standard voir dire, twelve people chosen at random by the clerk are seated in the jury box and questioned.{25} Voir dire questioning that probes into private matters may be awkward and unproductive in this setting, and some subjects (such as exposure to pretrial publicity) cannot be gone into publicly without exposing other jurors to prejudicial matter. For these purposes the judge will usually allow counsel to conduct all or part of the voir dire one juror at a time, generally in chambers. Like the scope of questioning, the decision is left to the judge's discretion,{26} although it may be required in some cases.

§ 27.06

Challenges

Voir dire gives the state and the defense the right to challenge potential jurors, but the right of challenge "is a right of rejection, not one of a selection of a juror."{27} Until the jury has been empanelled the defendant has no right to insist that anyone be included on the panel.

§ 27.07

- Challenges for Cause

The state and the defense can challenge any number of jurors for cause; and for-cause challenges can be made any time before the jury is impanelled.{28} Challenges for cause may be made on the basis of a statutory disqualification,{29} but when "statutory grounds of per se disqualification for potential bias do not exist, the question becomes whether the juror entertains a fixed bias, or whether he can decide the case solely on the evidence[,]" a question that is entrusted to the judge's discretion.{30} For-cause challenges should be sustained in the following cases:

A juror who indicates a predisposition to believe or disbelieve a particular witness,{31} although a juror's knowledge of a witness does not automatically require removal,{32} nor does familiarity with an earlier trial on the same charge, so long as the juror asserts an ability to be impartial.{33}

A juror who expresses a belief that the defendant has an obligation to prove his innocence, and whose responses show that he is "not comfortable with the presumption of innocence;{34} a juror who "has a belief that a defendant carries any burden whatsoever of proving his innocence. . . ."{35}

A juror who questions her ability to be impartial in view of the nature of the offense.{36

a. Implied Bias

A juror's claims of impartiality notwithstanding her knowledge of facts, or her asserted willingness to set aside pre-voir-dire opinions and follow instructions, will often defeat a challenge for cause, but a statement that the juror will try} to be fair or to overcome preconceptions is not good enough.{37} In any event, the case law is clear that even unhedged assertions of impartiality "are not dispositive on the question of fixed bias."{38} Some of the statutory exclusions can be seen as categories of implied bias, which no professions of impartiality will be allowed to rebut.{39}

The Vermont Supreme Court found implied bias in a case where two potential jurors were former patients of the defendant in a malpractice action (because of the "powerful trust that a patient may have in his physician's professional judgment[.]"){40} Implied bias may depend on the type of case: in a prosecution for assaulting a prison guard the Vermont court held that a juror whose nephew was a prison guard should not have been seated.{41} In a sexual assault case, by contrast, the court refused to find implied bias where the daughter of a potential juror had been a rape victim.{42}

Exposure to prejudicial pretrial publicity will not raise a presumption of bias except in extreme circumstances.{43}

§ 27.08

- Preserving Claims of Error

The Vermont Supreme Court has formulated clear rules for preserving claims of error in the denial of challenges for cause, which it rigidly adheres to. The test has two parts. First, the defendant must show that a challenge for cause was denied and the defendant thereafter exhausted all her peremptory challenges. There is no requirement that the defendant use her peremptory on the same juror.{44} Second, "the record must reflect that, had the party had an additional peremptory challenge available, the party would have used it to strike another juror."{45} It satisfies the second part of the test if jurors who were unsuccessfully challenged for cause eventually sit on the jury.{46}

§ 27.09

- Late-Disclosed Grounds for Challenge

In In re Nash{47} a superior court judge vacated a conviction on the ground that a juror had withheld material information - prior knowledge of a witness and disputed facts - "capable of producing prejudice" at the voir dire. Reversing on the ground that the new information did not show bias (and that the superior court's contrary view was "clearly erroneous"), the Vermont Supreme Court nevertheless indicated that the defendant would be entitled to relief in such a case if the undisclosed information would have justified a challenge for cause. "The controlling issue is whether the evidence establishes a bias on the part of [the juror] or whether she could decide the case solely on the evidence presented at trial. . . . If bias is established, [the juror] must be disqualified, and the case retried."{48}

A challenge of this sort can be lost if the later-disclosed information could have been ferreted out at voir dire by reasonable diligence.{49}

§ 27.10

- Peremptory Challenges

When a juror is excused for cause her place is taken by a new prospective juror or by one of the six "replacements,"{50} who is then questioned in turn. When twelve potential jurors have been provisionally seated, the parties exercise their peremptory challenges. Each party has six peremptories, and they are exercised "one by one, alternatively [sic], with the state exercising the first challenge."{51} If both sides "pass" on their peremptories, the judge can empanel the jury, no matter how many challenges each side has remaining.{52}

In cases with multiple defendants each defendant has six challenges,{53} the order of exercise being determined by the court.{54}

The judge should allow the parties to exercise their peremptories in a way that does not let the jury know which side is challenging which juror.{55} Challenged jurors should be removed at the end of the selection process or in groups.{56}

§ 27.11

- Limits on Use of Peremptory Challenges

Peremptories by definition require no reason or justification, except that neither side may use its challenges for the purpose of removing racial groups, or perhaps other "cognizable" groups (e.g., women or men), from the jury.{57} Peremptories that have that effect and apparent purpose can be objected to, and the burden shifts to the challenging party to show a neutral reason.{58}

§ 27.12

Preserving Jury Integrity After Voir Dire - Jury Sequestration

Whether a jury, once selected, can be permitted to "pass from under the eye of the officer having them in charge"{59} depends on the type of case. In felonies jury sequestration is mandatory unless the defendant waives it, while in misdemeanors the court need not order sequestration, and usually does not.{60}

§ 27.13

- Delays Between Voir Dire and Trial

In felonies, whether or not the jury has been sequestered, the trial must go forward at once unless the parties agree to a delay.{61}

In misdemeanors the court can either proceed to trial immediately after jury drawing (a "pick-and-go" jury) or schedule trial for a later date. Lengthy delays run the risk that unsequestered jurors will be exposed to publicity or other prejudicial influences, and the Vermont Supreme Court has expressed strong reservations about the practice.{62} A delay of sixty-two days was held to be prejudicial as a matter of law,{63} but lesser delays have been approved, at least when the defense is given a second chance to voir-dire the panel before trial, and in the absence of any specific showing of prejudice.{64}

1. 4 V.S.A. § 951.

2. See generally 4 V.S.A. §§ 951-961.

3. Qualification, List, Selection and Summoning of All Jurors.

4. 154 Vt. 496 (1990).

5. State v. Pelican, 154 Vt. 496, 498-99 (1990).

6. See chapter 19, supra.

7. V.R.Cr.P. 23(a).

8. V.R.Cr.P. 24(e).

8.5. Rushen v. Spain, 464 U.S. 114, 117 and n. 2.

9. V.R.Cr.P. 24(a). The court's supplemental questions can precede counsel's. State v. Calloway, 157 Vt. 217, 219-20 (1991).

10. State v. Calloway, 157 Vt. 217, 220 (1991).

11. See National Jury Project, Jurywork: Systematic Techniques (1992).

12. Id., chapter 10.

13. App. 13.

14. E.g.: "Some people think that the main purpose of the criminal justice system ought to be to prosecute and punish criminals. Other people think that it's equally important to protect the rights of people accused of crime. Which statement best suits how you feel?" A questionnaire used by the Caledonia County public defenders is included as App. 15, courtesy of Sleigh and Williams, St. Johnsbury, Vt.

15. V.R.Cr.P. 24(a); State v. Bernier, 157 Vt. 265, 266 (1991).

16. State v. Turley, 87 Vt. 163, 166 (1912).

17. See § 27.07, supra.

18. State v. Bernier, 157 Vt. 265, 266 (1991).

19. Swain v. Alabama, 380 U.S. 202, 219 (1965). See also Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981).

20. 409 U.S. 524 (1973).

21. See Ristaino v. Ross, 424 U.S. 589 (1976).

22. 111 S. Ct. 1899 (1991).

23. State v. Turley, 87 Vt. 163, 166 (1912).

24. State v. Schaefer, 157 Vt. 339, 352 and n. 4 (1991), and id. at 358 (Allen, C.J., concurring) (citing Mu'Min).

25. V.R.Cr.P. 24(a).

26. See Woodmansee v. Stoneman, 133 Vt. 449, 456 (1975) (judge did not abuse discretion by refusing to allow separate voir dire for each juror).

27. State v. Calloway, 157 Vt. 217, 220 (1991) (quoting Lattrell v. Swain, 127 Vt. 33, 36 (1967)). Cf. State v. Villeneuve, 155 Vt. 360, 363 (1990); State v. Corey, 151 Vt. 325, 330 (1989) (once impanelled, defendant has a protected interest in trial by a particular jury).

28. V.R.Cr.P. 24(b). A challenge for cause coming at the end of the voir dire, after the juror has been removed by a peremptory challenge, may be too late. State v. Percy, 156 Vt. 468, 480-81 (1990).

29. See 12 V.S.A. §§ 61, 64, 65. The principal statutory grounds are blood relationship with a party (within the fourth degree of consanguinity), interest in the outcome (12 V.S.A. § 61(a)), or having served a term of imprisonment for a felony (12 V.S.A. § 64).

30. State v. Percy, 156 Vt. 468, 478 (1991); State v. Hohman, 138 Vt. 502, 510 (1980). See also State v. Holden, 136 Vt. 158, 161 (1978) (juror who shows "a state of mind evincing a fixed opinion, bias or prejudice" is challengeable for cause).

31. State v. Doleszny, 146 Vt. 621, 622 (1986). Cf. State v. Percy, 156 Vt. 468, 480-81 (1991) (juror said he would be more prone to believe police officers than other witnesses; challenge held waived).

32. State v. Doleszny, 146 Vt. 621, 622 (1986).

33. State v. Doleszny, 146 Vt. 621, 622 (1986); State v. Hohman, 138 Vt. 502, 511 (1980).

34. State v. Holden, 136 Vt. 158, 161 (1978). See also State v. Santelli, No. 91-531, slip op. 4 (Vt. Dec. 18, 1992) (juror thought DUI suspect's refusal to take breath test proved him guilty).

35. State v. Holden, 136 Vt. 158, 161 (1978).

36. State v. McQuesten, 151 Vt. 267 (1989).

37. State v. Doleszny, 146 Vt. 621, 622 (1986) ("I certainly could try to be impartial but I'm not saying that I could.").

38. Murphy v. Florida, 421 U.S. 794, 800 (1975); State v. Percy, 156 Vt. 468, 478 (1991) (quoting State v. Hohman, 138 Vt. 502, 510-11 (1980)); Jones v. Shea, 148 Vt. 307, 309 (1987).

39. See State v. Hohman, 138 Vt. 502, 510 (1980) (some of the statutory grounds "are merely specific enumerations of circumstances that give rise to an inference of bias").

40. Jones v. Shea, 148 Vt. 307, 310 (1987).

41. State v. Kelly, 131 Vt. 358, 360-61 (1973).

42. State v. Percy, 156 Vt. 468, 478-79 (1991).

43. See, e.g., Murphy v. Florida, 421 U.S. 794, 800 (1975); State v. Searles, No. 91-038, slip op. 6-7 (Vt. Jan. 15, 1993) (jurors who read prejudicial article said they could be fair).

44. State v. Santelli, No. 91-531, slip op. 3 (Vt. Dec. 18, 1992); State v. Percy, 156 Vt. 468, 477 (1990); Jones v. Shea, 148 Vt. 307, 308 (1987).

45. State v. Percy, 156 Vt. 468, 477 (1991); Jones v. Shea, 148 Vt. 307, 309 (1987).

46. Jones v. Shea, 148 Vt. 307, 309 (1987). Federal review of a denied challenge for cause may be available only if the challenged juror sat on the case, Ross v. Oklahoma, 487 U.S. 81 (1987), but the Vermont court rejected that test in State v. Santelli, No. 91-531, slip op. 4-5 (Vt. Dec. 18, 1992).

47. No. 88-484 (Vt. Jan. 21, 1991).

48. In re Nash, No. 88-484, slip op. 7-8 (Vt. Jan. 21, 1991). A juror's inadvertent misinformation may not have the same effect. Id. at 6 (Dooley, J., dissenting) (citing State v. Bevins, 146 Vt. 129, 134 (1985) (inadvertent failure to disclose prior employment relationship with alleged accomplice)).

49. In re Nash, No. 88-484, slip op. 10-11 (Vt. Jan. 21, 1991).

50. V.R.Cr.P. 24(b),(e).

51. V.R.Cr.P. 24(c)(2),(3).

52. See Masterson v. State, 139 Vt. 106, 107 (1980) (describing the identical practice under the civil rules).

53. V.R.Cr.P. 24, Reporter's Notes (contrasting the practice under the civil rules).

54. V.R.Cr.P. 24(c)(2).

55. Palmisano v. Rheem, 133 Vt. 549, 550 (1975).

56. Palmisano v. Rheem, 133 Vt. 549, 550-51 (1975).

57. Batson v. Kentucky, 476 U.S. 79 (1986); Georgia v. McCollum, 112 S. Ct. 2348 (1992) (Batson applies to defendant's use of peremptories to exclude racial group); Powers v. Ohio, 111 S. Ct. 1364 (1991) (Batson protection may be invoked by white defendant).

58. Batson v. Kentucky, 476 U.S. 79, 97 (1986).

59. State v. Anderson, 119 Vt. 355, 361 (1956). See 12 V.S.A. § 5808 (court officer's oath); State v. Bartlett, 137 Vt. 400, 404 (1979) (real test is whether juror "passes from the attendance and control of the court officer").

60. State v. Brisson, 124 Vt. 211, 213 (1964). Waiver of sequestration in felony cases is the sort of "tactical" decision which can be made by the attorney and does not require an affirmative personal waiver by the defendant. State v. Bailey, 144 Vt. 86, 101-03 (1984).

61. V.R.Cr.P. 23(d); State v. Fortier, 149 Vt. 599, 602 (1988).

62. State v. Dapo, 143 Vt. 610, 613 (1983); State v. Stevens, 137 Vt. 473, 476 (1979).

63. State v. White, 129 Vt. 220 (1971).

64. State v. Fortier, 149 Vt. 599, 602 (1988) (47 days); State v. Dapo, 143 Vt. 610 (1983) (37 days); State v. Stevens, 137 Vt. 473, 475 (1979) (16 days).