Jury Selection

• Jurisdiction: Maryland

IV. Jury selection

A. Step one of the two-step jury selection process

Step one of the two-step jury selection process has nothing to do with the judge, the prosecutor, the defense counsel, or the defendant. Step one involves (1) the creation of the jury system; and (2) the selection of the pool of potential jurors, from that jury system, for a given day, a given courtroom, and a given trial. Selection of the jury for a given trial is typically the process of selecting about 75 individuals from a jury system that may exceed 250,000 people. Step one is the implementation of the fair cross-section requirement of the Sixth Amendment right to trial by jury.

Both Maryland case law and statute provide that the defendant is entitled to a jury consisting of a fair cross section of the community. See Md. Code Ann., Cts. & Jud. Proc. §§ 8-206 and 8-207. In Wilkins v. State, 270 Md. 62 (1973), the Court of Appeals held: "It is not necessary, of course, that the jury actually selected be representative of the community. However, it is a constitutional mandate that the source of names of prospective jurors and the selection process be reasonably designed to produce a fair cross-section." Id. at 65 (internal citations, quotations, and alterations omitted)). Accord Williams v. State, 246 Md. App. 308 (2020).

1. Creation of the jury system

The first phase in step one is the creation of the jury system. This is a list of all individuals within that venue, i.e., that political subdivision, who are at least 18 years old. Most venues use registered voters and/or those with a driver's license. Md. Code Ann., Cts. & Jud. Proc. § 8-206(b). Some venues also use telephone directories and/or public rolls. In a venue of 700,000, the jury system may contain 300,000 individuals. The defendant has the right to inspect and copy the jury lists to prepare cross-section challenge. Md. Rule 2-512.

2. Selection of the jury pool, jury venire, and/or jury list

The second phase in step one is the selection, on a given day, of the pool of potential jurors. In a venue of 700,000, the daily jury pool may contain 500 potential jurors, which is less than 0.1% of the potential jurors. A neutral system is used to determine which potential jurors will be called to jury duty that day. This system usually includes a juror qualification form. See Md. Code Ann., Cts. & Jud. Proc. § 8-302. Those potential jurors are randomly assigned jury numbers.

For a given jury trial, in a given courtroom, the potential jury pool is usually referred to as the jury venire or jury list, which contains about 75 potential jurors. A neutral system, e.g., jury number order, is used to determine which potential jurors for that day are called to a particular courtroom.

3. Requirement for jurors to believe in the existence of God is unconstitutional

Md. Decl. of Rights art. 36 provides: "[N]or shall any person, otherwise competent, be deemed incompetent as a witness, or juror, on account of his religious belief, provided, he believes in the existence of God, and that under His dispensation such person will be held morally accountable for his acts, and be rewarded or punished therefor either in this world or the world to come." Md. Decl. of Rights art. 37 provides "[t]hat no religious test ought ever to be required as a qualification for any office of profit or trust in this State, other than a declaration of belief in the existence of God . . .").

In Schowgurow v. State, 240 Md. 121, 125 (1965), the defendant, a Buddhist, challenged his conviction under the Fourteenth Amendment because "every member of the grand jury which indicted the [defendant] and of the petit jury which tried him was required, as part of his oath or affirmation, to declare a belief in God, as a condition of his taking office." The Court of Appeals held that the exclusion of those that did not believe in God was unconstitutional, holding: "We can see no difference, under the Federal Constitution, in the position of a defendant who is a member of a class excluded from the jury for lack of belief in God from that of a defendant tried by a jury from which members of his race have been excluded." Id. at 128. The Court stated:

[T]he provisions of the Maryland Constitution requiring demonstration of belief in God as a qualification for service as a grand or petit juror are in violation of the Fourteenth Amendment, and that any requirement of an oath as to such belief, or inquiry of prospective jurors, oral or written, as to whether they believe in a Supreme Being, is unconstitutional.

Id. at 131.

4. Sixth Amendment right to trial by jury requires a jury that is a fair cross-section of the community

A defendant is entitled to a jury that represents a fair cross-section of the community. Md. Code Ann., Cts. & Jud. Proc. § 8-104, provides: "Each jury for a county shall be selected at random from a fair cross section of the adult citizens of this State who reside in that county." Section 8-102(b) provides: "A citizen may not be excluded from jury service due to color, disability, economic status, national origin, race, religion, or sex." Id. § 8-102(b). In Smith v. Texas, 311 U.S. 128 (1940), the Supreme Court held:

It is part of the established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community. For racial discrimination to result in the exclusion from jury service of otherwise qualified groups not only violates our Constitution and the laws enacted under it, but it is at war with our basic concepts of a democratic society and a representative government. . . . The Fourteenth Amendment requires that equal protection to all must be given—not merely promised.

Id. at 130.

In Peters v. Kiff, 407 U.S. 493 (1972), the Supreme Court held that a state cannot exclude African Americans from either a grand or petit jury, stating:

[A] State cannot, consistent with due process, subject a Defendant to indictment or trial by jury that has been selected in an arbitrary and discriminatory manner, in violation of the Constitution and laws of the United States. Illegal and unconstitutional jury selection procedures cast doubt on the integrity of the whole judicial process.

Id. at 502. In Taylor v. Louisiana, 419 U.S. 522 (1975), the Supreme Court held that a state statute that allowed for women on juries only if they filed a written declaration of their desire to so serve, which resulted in a very small proportion of women serving on juries, was unconstitutional The Court held:

We accept the fair-cross-section requirement as fundamental to the jury trial guaranteed by the Sixth Amendment and are convinced that the requirement has solid foundation. The purpose of a jury is to guard against the exercise of arbitrary power—to make available commonsense judgment of the community as a hedge against the overzealous or mistaken prosecutor and in preference to the profession or perhaps overconditioned or biased response of a judge. This prophylactic vehicle is not provided if the jury pool is made up of only special segments of the populace or if large, distinctive groups are excluded from the pool. Community participation in the administration of the criminal law, moreover, is not only consistent with our democratic heritage but is also critical to public confidence in the fairness of the criminal justice system. Restricting jury service to only special groups or excluding identifiable segments playing major roles in the community cannot be squared with the constitutional concept of a jury trial.

Id. at 530.

In Hernandez v. Texas, 347 U.S. 475 (1954), the Supreme Court held that a jury selection process that was not discriminatory on its face, but in practice excluded Mexican Americans, was unconstitutional, stating:

Circumstances or chance may well dictate that no person in a certain class will serve on a particular jury during some particular period. But it taxes our credulity to say that mere chance resulted in their being no members of this class among over six thousand jurors called in the past 25 years. The result bespeaks discrimination, whether or not it was a conscious decision on the part of any jury commissioner.

Id. at 482.

In Duren v. Missouri, 439 U.S. 357, 364 (1979), the Supreme Court held that, in order to challenge the fair cross-section of the jury system, pool, venire, or list, the defendant must prove that (a) the group alleged to have been excluded is a large "distinctive" group within the community; (b) representation of members of that group is not fair and reasonable in relation to the number of such persons in the community; and (c) under-representation of that group is due to systematic exclusion of that group in the jury selection process.

Nonetheless, even though a defendant is entitled to a jury that is composed of a fair cross-section of the community, the Fourteenth Amendment does not require "proportional representation of all component ethnic groups of the community on every jury. . . ." Hernandez, 347 U.S. at 482. See Kidder v. State, 475 Md. 113 (2021) (jury selection process did not "exclude" members from jury, as would implicate the defendant's right to venire drawn from fair cross-section of community, in violation of constitutional rights to impartial jury). In Wilkins, 270 Md. 62, the Court of Appeals held:

The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, contemplates an impartial jury drawn from a cross-section of the community. This does not mean, of course, that every jury must contain representatives of all economic, social, religious, racial, political, and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury

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