4.3 Jury Selection

• Library: Trial of Capital Murder Cases in Virginia (Virginia CLE) (2019 Ed.)

4.3 JURY SELECTION

A defendant who pleads guilty necessarily waives the right to a trial by jury. ³⁶ But a claim may be made that this outcome is unconstitutional because it deprives the defendant of his or her right to have a jury determine sentencing factors, ³⁷ since a jury cannot be impaneled merely to fix a sentence. ³⁸ Furthermore, and the sentencing judge may have greater discretion to consider victim impact evidence. ³⁹ If the defendant pleads not guilty and desires to waive trial by jury, the waiver must be voluntarily and

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intelligently given after the defendant has been advised by counsel. ⁴⁰ "It is not enough that the accused neglects to demand a jury trial; his waiver must reflect a deliberate, affirmative act." ⁴¹ The right to a jury trial belongs to the Commonwealth as well as to the accused; thus, the commonwealth's attorney or the court may insist upon a jury trial even when the accused wishes to waive trial by jury. ⁴²

Williams v. Commonwealth ⁴³ contains a helpful review of the factors to be considered when a defendant moves to withdraw a waiver of trial by jury. The Virginia Supreme Court has "repeatedly held that a defendant who appeals a judgment of death may not complain of any nonjurisdictional defects that occurred prior to his guilty plea." ⁴⁴

4.301 Selection of the Array. Section 8.01-337 et seq. of the Virginia Code governs the creation of a master jury list from which grand and petit jurors are ultimately selected. Circuit court judges appoint jury commissioners who are responsible for using random selection techniques ⁴⁵ to prepare a list ⁴⁶ of inhabitants of their respective counties or cities who are qualified to serve as jurors. ⁴⁷ The commissioners delete from the list any person disqualified to serve under section 8.01-338 ⁴⁸ or exempted from service under section 8.01-341 or 8.01-342. The remaining persons are identified by name, address and, if available, occupation. This master jury list is then delivered to the clerk of the court.

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Before or during a term of court, the clerk or deputy clerk, in the presence of the judge or judge's appointee, randomly selects ⁴⁹ from the master jury list the number of qualified jurors necessary for the trial of all cases in the term, or the number ordered by the judge. ⁵⁰ The clerk then makes and signs a list of those selected showing name, age, occupation, and employer. This list is available in the clerk's office for inspection by counsel. ⁵¹

4.302 Statutory Challenges. Section 8.01-352 of the Virginia Code governs nonconstitutional challenges to irregularities in jury selection. Before the jury is sworn, these objections may be made without leave of court, but after the jury is sworn, they may be made only with the court's permission. ⁵² The Virginia Code states that relief in the form of selecting a new panel or setting aside a verdict will not be granted unless the irregularity was intentional ⁵³ or likely to cause injustice to the Commonwealth or the accused. For example, in Mighty v. Commonwealth, ⁵⁴ two convicted felons served on the jury, but the defendant was not entitled to a new trial because he failed to offer proof of probable injustice.

4.303 Constitutional Challenges. Unlike statutory challenges to jury selection, constitutional challenges do not require proof of specific prejudice. When the jury selection process violates constitutional standards, particularly with respect to racial disparity, the United States Supreme Court has granted relief without requiring any showing that confidence in the outcome of the trial was undermined. ⁵⁵ Thus, constitutional infirmities in the composition of a grand jury may invalidate a conviction even though the trial jury was legally constituted and guilt was established beyond a reasonable doubt. ⁵⁶

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The Virginia procedure for jury selection, like any procedure, is susceptible to discriminatory manipulation and subject to constitutional challenge. ⁵⁷ The composition of a jury venire is subject to challenge based on both the Equal Protection Clause of the Fourteenth Amendment and the "fair cross-section" requirement implicit in the Sixth Amendment right to an impartial jury. ⁵⁸ Challenges based on either ground must be made before the impaneling of the petit jury or they are waived. ⁵⁹

A. Sixth Amendment Challenges. The Sixth Amendment, applicable to the states through the Due Process Clause of the Fourteenth Amendment, ⁶⁰ guarantees trial by an "impartial jury of the state and district wherein the crime shall have been committed." This provision guarantees an array drawn from a fair cross-section of the community, namely, an array from which no cognizable group has been systematically excluded. ⁶¹

The Sixth Amendment does not guarantee a jury array in which cognizable groups are exactly represented in proportion to their numbers in the community. For example, Simpson v. Commonwealth ⁶² held that "the all-white composition of the venire in this case derived not from design or improper method, but simply from the luck of the draw." Defendants are, however, entitled to a fair opportunity for a representative array, unimpeded by any selection system that operates to exclude members of certain groups.

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United States Supreme Court cases have established a three-pronged test for establishing a violation of the Sixth Amendment's fair cross-section requirement: ⁶³

	1.	The excluded group is a distinctive group in the community. The Court has never provided a comprehensive list of cognizable groups for Sixth Amendment purposes, nor a means of defining them. It is clear that groups defined by race, ethnic background, or gender are cognizable groups. 64 In an early civil case, however, the Court indicated that the policies underlying the requirement of representative juries might make the list much longer and thus forbid the exclusion of economic, social, or religious groups in a community; 65
2.	The representation of the distinct group in jury venires is not fair and reasonable in relation to the number of such persons in the community. This prong of the test requires a showing that the group is substantially under-represented on the jury array. Two statistical methods are used to judge the significance of under-representation. Absolute disparity is the percentage of the group in the jury pool subtracted from the group's percentage in the community. For example, a 20-percent absolute disparity is established when women comprise 50 percent of the community's population but only 30 percent of those called for jury service are women. In the same example, the

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