PROCEDURE FOR SELECTING A JURY POOL
The master list of prospective jurors includes all persons in the county who are over 18 and have a license, all those persons on the county’s voter registration lists, and all those persons whose tax returns show them to be residents of the county. AOC must create a master list “at least annually.” Administrative Procedure of the Court of Justice, APCJ II, Sec. 2, KRS 29A.040(2). The AOC then uses a computer to generate a randomized list of potential jurors from the master list, and the chief circuit judge then takes as many names as needed off the list in sequence. APCJ II, Sec. 3 and 5. The people are then summonsed and become the jury pool for that county.
Failure to Follow the Procedure – This can require dismissal of the indictment when it involves a grand jury, Gill v. Com., 374 S.W.2d 848 (Ky.1964), Fugate v. Com., 233 S.W.2d 1019 (Ky.1950), or the granting of a new trial when it involves a petit jury, Williams v. Com., 71 S.W.2d 626 (Ky.1934).
RCr 9.34 requires that, “A motion raising an irregularity in the selection or summons of the jurors or formation of the jury must precede the examination of the jurors.” This rule applies to grand juries as well as petit juries. Com. v. Nelson, 841 S.W.2d 628 (Ky.1992). The exception is when the defendant could not have discovered the irregularities by due diligence prior to the time of trial. Allen v. Com., 901 S.W.2d 881 (Ky.App.1995), Bartley v. Loyall, 648 S.W.2d 873 (Ky.App.1982).
Note: In both Com. v. Nelson, 841 S.W.2d 628 (Ky.1992) and Allen v. Com., 901 S.W.2d 881 (Ky.App.1995), the courts ruled that a judge cannot delegate the responsibility of reviewing juror qualification forms and disqualifying those jurors who fall under the criteria of KRS 29A.080(2). At the time of those decisions, both APCJ II, Sec. 8 and KRS 29A.080 required the determination to be made by a judge. However, KRS 29A.080(1) was amended in 2002 and now allows those determinations to be delegated to court administrators and clerks. (APCJ II, Sec. 8 still requires judges to do the job.)
Objecting to the Procedure Itself - A defendant has a Sixth Amendment right to a jury which represents a fair cross-section of his community. Duren v. Missouri, 439 U.S. 357, 99 S.Ct. 664, 58 L.Ed.2d 579 (1979). An objection to the composition of a jury pool based on the due process right to a fair cross-section must show that: (1) the group allegedly excluded is a distinctive group in the community, (2) the representation of that group in the venires from which the jury is selected is not fair and reasonable in relation to the numbers of other persons in the community, and (3) the under-representation is due to the systematic exclusion of the group in the jury selection process. Ford v. Com., 665 S.W.2d 304 (Ky.1984), cert denied, 469 U.S. 984, 105 S.Ct. 392, 83 L.Ed.2d 325; Smith v. Com., 734 S.W.2d 437 (Ky. 1987).
A defendant also has an equal protection right to a jury in which there is no substantial under-representation of a racial or other identifiable group. This applies to petit juries as well as grand juries. Castaneda v. Partida, 430 U.S. 482, 97 S.Ct. 1272, 51 L.Ed.2d 498 (1977), Swain v. Alabama, 380 U.S. 202, 85 S.Ct. 824, 13 L.Ed.2d 759 (1965).
Nevertheless, a master list is not unconstitutional just because it may fail to include some potentially eligible voters. A fair cross-section complaint cannot be established by merely comparing the composition of the jury to that of the community, because the composition of the community also includes ineligible voters. Ford, supra, at 308.
Improperly Excusing Jurors - Note, however, that even if the master list is unobjectionable, the court may be so liberal in granting excuses or otherwise so lax in following up on jurors who simply do not respond to being summonsed, that a drastic reduction in the available jury pool results nevertheless. For a thorough review of these issues, see Tim Arnold and Gail Robinson, “Jury Pool Issues,” The Advocate, vol. 26, no. 3, May 2004, pp. 10-15. In the course of representing a murder defendant, the authors discovered that out of 500 people summonsed for service in the defendant’s circuit, only 91 of them were left to serve as potential jurors on circuit, district and grand juries after one accounted for all those who never responded to the summons (178), were disqualified (48) or simply excused (183). See, e.g., Sanborn v. Com., 754 S.W.2d 534, 548 (Ky.1988), “The trial court erred in the jury selection procedures, in that the judge excused a number of prospective jurors without recording a reason for the excuses on the jury qualification form.,” and Ward v. Com., 695 S.W.2d 404, 406-7 (Ky.1985), “It is undisputed that the trial judge had not complied with the statute [KRS 29A.100] prior to the motion to be furnished with the list.”
From the Arnold and Robinson article, p 13, including the checklist below:
“KRS 29A.080(1) and 29A.100(2), as amended in 2002, permit the chief judge to delegate decisions concerning disqualification, excuse from service for 10 days or less and postponement of service for less than a year to another judge, court administrator, or clerk. However, decisions involving excuses for “undue hardship, extreme inconvenience or public necessity” for more than 10 days must still be made by the judge. KRS 29A.100(3). If the local authorities are not following the law concerning jury selection a motion to quash the indictment and/or a motion to dismiss the petit jury panel should be made. Such a motion must be made prior to examination of the jurors. See RCr 9.34
“It is important to realize that merely making an oral objection prior to voir dire is not sufficient to preserve the error. In Grundy v. Commonwealth, Ky., 25 S.W.3d 76 (2000), the court considered a situation...where a surprisingly low number of jurors appeared for trial. Trial counsel asked to postpone the proceedings until the no-show jurors appeared, and the court denied the motion. On appeal, Grundy alleged that the court violated Nelson by improperly excusing an excessive number of jurors. The Supreme Court held that the claim was unpreserved, because trial counsel had not made a sufficient record to permit the appellate court to rule on whether the excuses were or were not proper.
“The accused has a right to make a record sufficient to permit appellate review of alleged errors. See Powell v. Commonwealth, Ky., 554 S.W.2d 386, 390 (1977). Consequently...counsel should object to any juror being absent who was not excused pursuant to the procedures set forth in KRS Chapter 29A and APCJ, Part II. Counsel should then ask the court to allow him or her to review the excuses for any “no show” jurors. If the court permits that, counsel should put those excuses in the record for appellate review. If, on the other hand, the judge wishes to proceed to trial without allowing counsel to review the excuses, counsel should make an oral motion on the record asking the court to put the excuses in the record as an avowal.”
CHECKLIST FOR INVESTIGATING A JURY PANEL
1) When did the chief circuit judge last ask AOC to select jurors for the current term?
2) Did he ask for a sufficient number of names from AOC?
3) Is the list being used to summons jurors for this term fresh or stale?
4) Is the chief judge asking the clerk to summons a sufficient number of jurors?
5) If the letters including the jury summons and qualification forms don’t reach the jurors, is the chief circuit judge having the sheriff attempt personal service?
6) Is the chief judge or someone he’s properly designated reviewing forms and deciding if jurors are disqualified?
7) Is the reason for disqualification being entered on the form?
8) Is the judge following the strict standard on permanent medical exemptions?
9) As far as excuses, is the chief circuit judge acting or designating someone listed in the statute to act only as permitted (excused up to 10 days, postponement up to 12 months)?
10) Is the judge following the strict standard for excuses (undue hardship, extreme inconvenience, public necessity)?
11) When does the judge grant excuses and does counsel have any input?
12) If jurors have appeared for orientation but don’t appear for trial, does the judge require them to explain themselves?
13) Have you attended the orientation and listened to what the judge tells the jurors?
OTHER OBJECTIONS TO THE JURY PANEL
Other problems might arise once the jurors have been called to sit on the jury and voir dire has begun. A few cases have addressed some of these situations. Generally speaking, it is rare that any occurrence during voir dire will require dismissal of the entire jury panel.
Remarks Made During Voir Dire - In Tabor v. Com., 948 S.W.2d 569 (Ky.App.1997), a prospective juror said during voir dire that she believed she recognized the defendant and then asked out loud if he had been in the “West Kentucky Correctional Center.” The trial court then excused the juror after a conference with her outside the hearing of the rest of the jurors, leaving the unmistakable impression that the juror had been right about the defendant. The Court of Appeals ruled that this response tainted the entire venire. What was crucial in this case was the fact that, although the defendant did have a prior felony conviction, he could not have been impeached with it during trial because the conviction was still on appeal. Thus, the juror gave the other jurors access to information concerning the defendant which would not have come into evidence during trial.
The Kentucky Supreme Court declined to grant relief in a similar situation in Hall v. Com., 2003 WL 21254856 (Ky.2003), unpublished. In that case, a prospective juror said during voir dire that he knew the defendant and then added, “I used to be deputy jailer in Whitesburg.” The trial court struck the juror for cause but did not grant the defendant’s motion for a mistrial. The Supreme Court ruled that a mistrial was not necessary because there were any number of reasons why a deputy jailer might have known the defendant other than because he had been in jail. For instance, said the court, the other prospective jurors could have assumed he had worked there, or had delivered supplies there, or had been in law enforcement.
The Court of Appeals also declined to follow Tabor in a case very similar to Hall. In Bryant v. Com., 2003 WL 22110576 (Ky.App.2003), unpublished, a prospective juror also said during voir dire that he knew the defendant from jail. In that case, unlike in Tabor, the defendant took the stand and was impeached with his prior felonies. The court ruled that the error was therefore harmless and a mistrial was not necessary.
Juror a Victim of Similar Crime - In Jett v. Com., 862 S.W.2d 908, 910-11 (Ky.App.1993), the defendant on trial for trafficking moved to set aside the jury panel when one prospective juror stated, in the presence of the entire panel, that a drug trafficker had killed his daughter. Instead, the trial court struck the prospective juror. The Court held it was not error to refuse to strike the entire panel because the defendant had proven no prejudice. A prejudicial remark by a juror does not necessarily require striking the entire panel.
Where the defendant was on trial for robbery, the fact that two prospective jurors had been robbery victims was not sufficient to render prospective jurors unqualified. Stark v. Com., 828 S.W.2d 603, 608 (Ky.1991), overruled on other grounds. Also, where the defendant was on trial for assault and burglary and knew the victim, it was not error for the trial court to fail to strike for cause a juror who had been raped at her home three months before by a perpetrator who she did not know and who had not yet been caught. Butts v. Com., 953 S.W.2d 943, 945 (Ky.1997).
Juror Also a Witness in the Case - In Hellard v. Com., 829 S.W.2d 427 (Ky.App.1992), overruled on other grounds, the defendant was charged with theft by deception and forgery based on a forged rental agreement with a video store. The owner of the video store was a member of the jury pool. The defendant moved for a continuance of her trial until a new jury pool was called. The Kentucky Court of Appeals held that, even though the issue had not been preserved, it was palpable error for the trial court to deny the motion for continuance because the “possibility of a jury according the testimony of a witness greater weight than it otherwise would have received is just too great when the witness is a member of the same jury pool.” Furthermore, the court did “not feel that Hellard was required to show bias or prejudice under these circumstances.” Id. at 429. Compare, Colwell v, Com., 37 S.W.3d 721 (Ky.2001), in which the complaining witness was also a member of the jury pool but no reversible error ocurred because the witness was excused before the day of trial and therefore did not mingle with other jurors prior to trial.
In Jones v. Com., 737 S.W.2d 466 (Ky.App.1987), a member of the juror pool was also a witness in the defendant’s trial. The juror was removed from the jury pool before trial began and the defendant was allowed to voir dire on the issue of the weight other jurors might place on the witness’s testimony. It was not error to deny a continuance when all the remaining jurors answered they would not be unduly influenced by the testimony of the former juror.
Juror Convicted a Co-Defendant – In Pelfrey v. Com., 842 S.W.2d 524 (Ky.1993), the defendant moved for a continuance until a new jury pool could be empanelled because the jury that had convicted the defendant’s companion one month earlier had been selected from this same jury pool. The trial court denied the continuance motion.
On appeal, the Court held the trial court had not abused its discretion in denying the continuance motion because “there were adequate safeguards in place to assure an unbiased jury” (i.e., for-cause and peremptory challenges). Id., 525 Furthermore, the defendant had conducted a thorough voir dire examination and had not challenged any prospective jurors for cause, and the trial court had admonished the jurors to consider only what they heard from the witness stand.
The Kentucky Supreme Court further held that because the defendant had not challenged any of the prospective jurors for cause “we can only assume that he was satisfied with the jury.” And that, “a continuance motion for a new panel is not the equivalent of individually challenging jurors for cause. Once trial counsel’s [continuance] motion was denied, his method for reviewing the bias issue was to specifically challenge jurors. Without doing so, counsel clearly waived his jury challenge.” Id.
See also Hicks v. Com., 805 S.W.2d 144 (Ky.App.1990), in which the defendant failed to show that he could not receive a fair trial from a jury drawn from the same pool of jurors who had previously convicted an alleged accomplice. And see also U.S. v. Dempsey, 733 F.2d 392 (6th Cir.1984), in which members of the panel called to try the defendant’s case had been members of the same panel from which jurors were selected for the prior trial of the co-defendant, and three had actually served on the jury which had tried and convicted the co-defendant. The U.S. Court of Appeals ruled there was no error when the trial court did not remove the entire panel but did remove those jurors who had served on the co-defendant’s panel.
Juror Had Participated in Voir Dire in Previous Trials Against Same Defendant – In Merriweather v. Com., 99 S.W.3d 448 (Ky.2003), the court ruled that it was not reversible error to refuse to strike for cause six jurors who had participated in the voir dire of a previous unrelated assault case against the same defendant when the trial court determined that the jurors had only vague recollections of the nature of the former charges and that the defendant was able to use his peremptories so as to excuse all the jurors in question.
On the other hand, see Miracle v. Com., 646 S.W.2d 720 (Ky.1983), in which it was held to be reversible error for the trial court to try the defendant before jurors who had previously been present when the defendant entered a guilty plea which had subsequently been withdrawn. See also Dickerson v. Com., 174 S.W.3d 451,462 (Ky.2005), in which the court ruled that “the jurors who participated in the voir dire at Appellant’s sodomy trial, and thereby learned he used a handgun to forcibly sodomize a child under twelve years of age, were impliedly biased and should have been excused from serving on the subsequent handgun trial,” when the two charges were related, the defendant exhausted all his peremptories, and three of the biased jurors actually served on the handgun trial.
Jurors Served in a Previous Trial of the Same Defendant – Members of the jury panel who served as jurors in previous trials of the defendant must be disqualified and excused. Gossett v. Com., 426 S.W.2d 485 (Ky.1968). Members of the jury panel who had been empanelled to try the defendant on another charge the previous day, and others who had been in the courtroom during that trial, should have been struck for cause. Brumfield v. Com., 374 S.W.2d 499 (Ky.1964).
CALLING JURORS FROM THE POOL
RCr 9.30 describes the process used for the selection of the jury at trial. The specific procedure for calling names in a random way can be found at APCJ II, Sec. 10. Pursuant to RCr 9.30(2), “The jury selection process shall be conducted in accordance with Part Two (2) of the Administrative Procedures of the Court of Justice.” The procedure used to be in KRS 29A.060(2), but the statute was amended in 2002. Failure to substantially follow the proper procedure requires automatic reversal, and no prejudice need be shown. Robertson v. Com., 597 S.W.2d 864 (Ky.1980). See also Bartley v. Loyall, 648 S.W.2d 873, 874-75 (Ky.App.1982), which held it was reversible error for the clerk to try to equalize the workload by calling the numbers of jurors who had participated in fewer cases before calling the numbers of jurors who had participated in more cases. Remember, too, that RCr 9.34 requires an objection to be made before voir dire.
NUMBER OF JURORS
KRS 29A.280(2) provides for 6 jurors in District Court and 12 jurors in Circuit Court. However, a defendant may agree to have fewer than 12 jurors in Circuit Court, down to as few as 6.
The clerk will initially call a number of jurors equal to the number of jurors who will sit on the jury plus the total number of combined strikes to be exercised by both sides. RCr 9.36(2). For example, for a trial in which there will be a single defendant and a jury with 2 alternates, the clerk would begin by calling 32 prospective jurors: 14 jurors plus 18 total peremptories for both sides. (See “Peremptory Strikes,” below.) As jurors are struck for cause during voir dire, the clerk calls new prospective jurors to replace them, RCr 9.30(1)(a), and the process continues until there are no more motions to strike for cause or until the judge ends the voir dire.
