9.15 Jury Selection

• Library: Virginia Law and Practice: A Handbook for Attorneys (Virginia CLE) (2020 Ed.)

9.15 JURY SELECTION

9.1501 Right to Jury Trial. Virginia is one of a few states where the jury not only determines guilt or innocence but, in the event of conviction, also determines the sentence (albeit a recommendation). Virginia created a jury trial process wherein the determination of guilt or innocence was separated, that is, bifurcated, from the sentencing portion of the trial. ⁵⁶⁸

The Sixth Amendment to the United States Constitution guarantees the right to a trial by jury in all criminal prosecutions. As a result of the United States Supreme Court's decision in Duncan v. Louisiana, ⁵⁶⁹ the states are required to accord this right to the accused in state criminal prosecutions. However, Duncan did not require the states to conform precisely to all the federal procedures for jury trials. In Baldwin v. New York, ⁵⁷⁰ the Court held that the right to jury trial in state courts is limited to cases where the accused faces the possibility of a sentence of more than six months' imprisonment. In Williams v. Florida, ⁵⁷¹ the Court held that 12-person juries were not required in state criminal trials.

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The right to a jury trial is also guaranteed by the Virginia Constitution but only when the case is tried in a court of record on a plea of not guilty. ⁵⁷² The accused has no right to a jury in a court not of record. The Virginia Constitution provides "for the trial of offenses not felonious by a court not of record without a jury, preserving the right of the accused to an appeal to a trial by jury in some court of record having original criminal jurisdiction." ⁵⁷³ This right is codified in Va. Code §§ 16.1-132 and 16.1-136. Since there are non-felonious crimes in Virginia that carry potential sentences in excess of six months, the Virginia system may deprive the accused of his or her rights as guaranteed by Duncan and Baldwin. However, the United States Supreme Court has used the reasoning of Williams (the states do not have to imitate exactly the federal system of criminal procedure) to uphold Virginia's appeal of right and trial de novo procedure as satisfying the Sixth Amendment right to a jury trial. ⁵⁷⁴ This automatic right of appeal to a court of record for a trial de novo effectively guarantees an eventual right to a jury in the trial of any misdemeanor, regardless of the length of the possible maximum sentence.

The right to a jury trial in contempt proceedings is statutorily provided in summary contempt proceedings under Va. Code § 18.2-457 if the penalty exceeds $250 or ten days' imprisonment, or cases of indirect criminal contempt in which the penalty authorized exceeds six months' imprisonment. ⁵⁷⁵

9.1502 Waiver.

A. Standard. Although the accused has a constitutional right to a jury trial, that right is not solely that of the accused. Based on the requirement that the court and the Commonwealth consent to a waiver of a jury, failure or refusal to grant the consent results in the court and the Commonwealth each having the ability to command a jury. In Singer v. United States, ⁵⁷⁶ state-imposed limitations on the right to waive a jury trial were held not to violate the United States Constitution. Only when the

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accused enters a plea of guilty is there an absolute waiver of a jury without the concurrence of the court or the Commonwealth.

Waiver of jury trial on the issue of guilt waives the jury trial on the issue of punishment as well, since the constitutional right to a jury trial refers only to the right to have a jury determine guilt or innocence and not the sentence. ⁵⁷⁷ If a defendant withdraws his or her waiver of a jury trial, the motion should be granted unless accommodating the request would unduly delay the trial or otherwise impede justice. ⁵⁷⁸

B. Procedure. Upon a plea of not guilty, a jury trial may be waived with the consent of the accused, the concurrence of the commonwealth's attorney, and the concurrence of the court. Both the court and the prosecutor thus have the power to require a jury trial by not consenting to waive it. ⁵⁷⁹

The court must determine whether the accused's waiver was voluntarily and intelligently given. ⁵⁸⁰ A proper waiver requires a finding that the defendant knowingly and intelligently waived the right. Without a finding of a valid waiver, the defendant retains an absolute right to a jury trial. However, where the circuit court had determined that the waiver was "voluntarily and intelligently made" and the court entered "in the record the defendant's consent to be tried without a jury[,] . . . the circuit court was not required to enter an order stating a finding that [the] jury trial waiver was voluntary and intelligent." ⁵⁸¹

The accused's consent and the concurrence of the commonwealth's attorney and the court must be entered of record. ⁵⁸² Failure to record the required written consent of all parties is a fatal defect. Something more than mere silence is necessary to give the court jurisdiction to hear the case without a jury. ⁵⁸³ Failure to record the concurrence of the commonwealth's

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attorney on the record also is fatal to the conviction, and it will not be inferred from the court's hearing the case without a jury on the accused's consent. ⁵⁸⁴ For example, an endorsement by the commonwealth's attorney on the reverse side of the indictment is not sufficient since it is not entered of record. The record is the order book that distinguishes courts not of record from the courts of record. Even a record reciting that "the court proceeded to hear and determine the case without intervention of the jury as provided by law" does not meet the required procedure and is fatally deficient. ⁵⁸⁵ The Virginia Code incorporates this requirement for all felony trials ⁵⁸⁶ but omits this language for misdemeanor trials. ⁵⁸⁷ Since the constitutional requirement does not distinguish between felony and misdemeanor trial procedure, the omission in the Virginia Code as to misdemeanors may not relax the requirement.

Where there is coercion, there cannot be a valid waiver of the right to a jury trial. Even if the defendant's request is a stalling tactic, such motivation does not render the right to a jury trial any less fundamental. ⁵⁸⁸

The accused must be advised by counsel before he or she consents to waive a jury trial in a felony case. ⁵⁸⁹ This requirement may be waived by the accused, and the advice of counsel need not appear on the record. ⁵⁹⁰ In a misdemeanor case, if the accused is on bail or recognizance and fails to appear, he or she is deemed to have waived a jury and may be tried in absentia as if a plea of not guilty had been entered. ⁵⁹¹

Whether a defendant who has once waived his or her right to a jury trial may withdraw the waiver is in the sound discretion of the trial court. In the absence of a showing that withdrawal would delay or impede justice, the motion is timely. ⁵⁹²

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9.1503 Number of Jurors.

A. In General. The provision in the Virginia Constitution authorizing the General Assembly to provide for juries of fewer than twelve but not fewer than five ⁵⁹³ for non-felonious offenses was partially invalidated by Ballew v. Georgia, ⁵⁹⁴ where the United States Supreme Court held that a trial before a jury of five members violated the defendant's right to a jury trial as guaranteed by the Sixth and Fourteenth Amendments. The Virginia Code now provides that seven persons from a panel of not less than thirteen will constitute a jury in a misdemeanor case, and twelve persons from a panel of not less than twenty will constitute a jury in a felony case. ⁵⁹⁵ A unanimous vote is required to convict in a jury trial. ⁵⁹⁶ With the exception of a capital murder case, where a non-unanimous sentencing verdict automatically results in a sentence of life, ⁵⁹⁷ the jury sentencing verdict must also be unanimous. ⁵⁹⁸ A defendant, with the concurrence of the court and of the commonwealth's attorney entered of record, may consent to be tried for a felony by a jury of fewer than twelve members. ⁵⁹⁹

B. Alternate Jurors. Alternate jurors may be summoned if, in the opinion of the court, the case may be protracted. ⁶⁰⁰ Their selection and qualifications must be the same in every respect as regular jurors. If, before the case is finally submitted to the jury, a regular juror dies, is discharged, or is excused, the court must order an alternate juror, if there is one, to take his or her place in the jury box. An alternate juror who does not replace a regular juror must be discharged when the jury retires to consider its verdict. ⁶⁰¹

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9.1504 Challenges of Jurors.

A. Exclusion for Cause. One of the most difficult issues a court confronts is whether to strike a juror "for cause." Per se disqualification of jurors is uncommon and disfavored. ⁶⁰² A juror should be excluded "for cause" only if the court finds that the juror does not stand "indifferent in the cause." ⁶⁰³ Whether to exclude a juror "for cause" is in the sound discretion of the trial court. ⁶⁰⁴ The fact that a juror who should have been stricken "for cause" could have been taken off the panel by peremptory challenge does not cure the error. ⁶⁰⁵ Counsel should be afforded the opportunity to challenge jurors for cause out of the presence of the panel. ⁶⁰⁶

The Virginia Court of Appeals has held that "there is no per se rule disqualifying a prospective juror who is related to a prosecution witness on the ground that he is presumed to be biased, or not indifferent to the cause." ⁶⁰⁷ The court noted that the Virginia Supreme Court has acknowledged that "there is a separate and distinct rule that 'has effectively established per se disqualification [of a juror] by [other] limited categories,'"

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including "the per se disqualification of certain jurors in order to maintain public confidence in the judicial system." ⁶⁰⁸

A challenge to a juror for cause on the ground that seating the juror would "undermine public confidence in the verdict" is an argument that must be...