4.4 Selection of the Petit Jury

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

4.4 SELECTION OF THE PETIT JURY

The venire is transformed into the petit jury by the granting and denial of challenges for cause and by the exercise of peremptory challenges. The procedure for selection of petit juries in criminal cases is governed by sections 8.01-358 and 19.2-262 of the Virginia Code and Rule 3A:14 of the Rules of the Supreme Court of Virginia. Prospective jurors are sworn and examined on voir dire, either individually or in groups of such size as the judge directs. ⁷⁶

4.401 Voir Dire. The court is required to ask prospective jurors a series of questions ⁷⁷ designed to ascertain whether a juror is related to any of the parties, ⁷⁸ has an interest in the case, has acquired pretrial information

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that would affect his or her impartiality, ⁷⁹ has formed an opinion as to guilt or innocence, or has any bias or prejudice against any of the parties. Thereafter, the court and counsel ⁸⁰ may question jurors on any matter relevant to qualification as an impartial juror. In capital cases, this examination will include questioning about whether the attitude of the prospective juror either favoring or opposing imposition of the death penalty constitutes grounds for a challenge for cause.

Voir dire examination ⁸¹ and rulings on challenges for cause continue until a panel of twenty qualified jurors is selected. ⁸² Thereafter, beginning with the attorney for the Commonwealth, the parties alternately exercise peremptory challenges totaling four each, leaving a jury of twelve to hear the case. In capital cases, the court often orders selection of one or two alternate jurors pursuant to section 8.01-360 of the Virginia Code. The selection process is the same, and the Commonwealth and the defendant are permitted one additional peremptory challenge of the alternate jurors. ⁸³ Although not ruling on the issue, Parker v. Commonwealth⁸⁴ noted that "[a]n overwhelming majority of courts that have considered the question have concluded that the presence of an alternate juror at any time during jury deliberations is a fundamental irregularity requiring a mistrial." ⁸⁵

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A trial court need not conduct a mid-trial hearing into every allegation of potential bias or misconduct by a juror. Instead, "the trial court should consider the totality of the circumstances and determine whether a party presented credible allegations of bias that undermine the prior determination of impartiality reached by the court at the conclusion of the voir dire process." ⁸⁶

For a litigant to be entitled to a mistrial based on jury misconduct on voir dire, "the honesty of the juror's response is to be gauged by whether the juror gave an incorrect answer intentionally or accidentally. Only an intentionally incorrect response may provide a basis for the granting of a mistrial." ⁸⁷

Salmon v. Commonwealth⁸⁸ held that "[b]ecause the Office of the commonwealth's attorney is a criminal justice agency, and because the 'administration of justice' includes the prosecution of criminal cases, Code § 19.2-389(A)(1) authorizes the commonwealth's attorney to review the criminal background records of prospective jurors." The court did not consider whether the defendant has a "due process right to review the information as well."

There are two recurring problems with existing voir dire practices in Virginia, problems that are worthy of further examination by trial counsel and all courts.

A. Counsel-Conducted Voir Dire. On its face, section 8.01-358 gives counsel the right to question any person called as a juror. In Charity v. Commonwealth, ⁸⁹ however, the trial judge limited defense counsel to submitting voir dire questions for the court to ask. The Court of Appeals acknowledged that this was clear error and that "the error in this case is troubling, not simply because it denied appellant's statutory right to counsel-conducted voir dire, but also because it may have been committed in deliberate disregard of a known statutory directive." Nonetheless, the court held

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that "a trial court's error in refusing to allow counsel-conducted voir dire is harmless if it plainly appears that the jury panel remained impartial and that the defendant was not otherwise prejudiced by the jury selection process the court employed."

In dicta, Charity indicated that "counsel-conducted voir dire is a statutory, not a constitutional, right," and the court also noted that the defendant had not raised a constitutional claim. The existence and nature of a constitutional right to counsel-conducted voir dire remains to be resolved. In United States v. Evans, ⁹⁰ the Fourth Circuit stated that a "voir dire that has the effect of impairing a defendant's ability to exercise intelligently his challenges, whether for cause or peremptory, is a ground for reversal, irrespective of prejudice."

B. Judicial Rehabilitation of Jurors. Overly aggressive questioning by a trial judge raises questions about the reliability of juror responses. In McGill v. Commonwealth, ⁹¹ the Court of Appeals warned that "[a] trial judge who actively engages in rehabilitating a prospective juror undermines confidence in the voir dire examination. . . . The trial judge should rule on the propriety of counsel's questions and ask questions or instruct only where necessary to clarify and not for the purposes of rehabilitation." A juror may not be rehabilitated with leading questions. ⁹²Gosling v. Commonwealth⁹³ added that "evidence of the requisite qualifications for impartial service must emanate from the juror, unsuggested by leading questions." Despite such strong language from the appellate courts, a number of trial judges continue to engage in overly aggressive efforts to rehabilitate jurors. The persistence with which these cases arise ⁹⁴ cautions all counsel and trial judges to be more alert to the clear mandate from the appellate courts.

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4.402 Challenges for Cause. Jurors "must stand indifferent in the cause," and the purpose of voir dire examination is to determine whether a prospective juror is free from partiality and prejudice. ⁹⁵ "The test for seating a juror who has a preconceived viewpoint which would otherwise be disqualifying is whether the juror can disabuse his mind of the preconceived opinions or misconception and decide the case on the evidence submitted and the law as propounded in the court's instructions." ⁹⁶ A prospective juror's preconceived viewpoint must be a "deep and abiding conviction," not a mere "casual impression." The burden is on counsel to distinguish these possibilities by posing additional questions to jurors who initially indicate they have a preconceived viewpoint about some issue in the case. The failure to ask additional questions and develop the record on this matter precludes appellate review of whether "the prospective jurors were unable to decide the facts of the case fairly and impartially." ⁹⁷

The grounds for a challenge for cause are normally developed by questioning the prospective juror, but counsel is entitled to introduce evidence in support of the challenge. ⁹⁸ Virginia's appellate courts have stated that any reasonable doubt as to a juror's qualifications should be resolved in favor of disqualification. ⁹⁹ In Green v. Commonwealth, ¹⁰⁰ which overturned a capital

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murder conviction because of error in seating two jurors, the court stated that "even though circuit courts have wide latitude in the seating of jurors, courts must be mindful that if any reasonable doubt exists regarding whether a juror stands indifferent in the cause, that doubt must be resolved in favor of the defendant." "Public confidence in the integrity of the judicial system, as a ground for excluding a juror for cause, must be raised in the trial court or that issue is waived." ¹⁰¹

A prospective juror whose qualifications are in doubt may be rehabilitated by the court or the commonwealth's attorney, but proof that a prospective juror is impartial cannot be based on mere assent to persuasive suggestions. ¹⁰² Failure to exclude a juror who is properly subject to challenge for cause is prejudicial error, and the error is not cured if the defendant or the prosecution must exercise a peremptory challenge to excuse that juror. ¹⁰³

Although the defendant is not entitled to inquire into all forms of racial bias, ¹⁰⁴ a special rule applies in capital cases. "A capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." ¹⁰⁵ The Virginia Court of Appeals suggested that "the trial court should readily accede to the defendant's request" to pose voir dire questions related to racial bias. ¹⁰⁶ "No Supreme Court or Fourth Circuit decision has held that capital defendants accused of crimes against victims of their own race have a right to question prospective jurors on the issue of racial bias." ¹⁰⁷

The right to an impartial jury also applies to the question of punishment, which is discussed below.

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A. Voir Dire: Life/Death Qualification. Jurors are subject to challenge for cause if they are irrevocably committed to voting against the death penalty no matter how strong the evidence supporting it. ¹⁰⁸ Jurors also are subject to challenge for cause if they are biased in favor of the death penalty and would not consider voting for life imprisonment no matter how strong the evidence supporting it. ¹⁰⁹ The trial court's refusal to inquire into such bias is prejudicial error, which invalidates the sentence but not the finding of guilt. ¹¹⁰

Uttecht v. Brown¹¹¹ succinctly states the principles governing death qualified juries:

First, a criminal defendant has the right to an impartial jury drawn from a venire that has not been tilted in favor of capital punishment by selective prosecutorial challenges for cause. Second, the State has a strong interest in having jurors who are able to apply capital punishment within the framework state law...