223.2Jury Selection
Key Concepts
- The jury pool as a whole must be a fair cross-section of the larger community, but this does not mean that the jury selected for any one particular trial has to match the demographics of the county.
- Individual jurors must meet minimum qualifications to serve such as residency, age, and the ability to understand English.
Qualifications: Venire (Jury Pool)
The defendant is entitled to a trial by jury which is drawn from a “fair cross-section” of community. See Taylor v. Louisiana, 419 U.S. 522 (1975); State v. McNeill, 326 N.C. 712 (1990). As a general rule, the venire is generated from a list of registered voters and people with driver’s license records in the county, and then the clerk’s office creates a randomized list of names from that group who are summoned to come to court and serve. See G.S. 9-1 to 9-7, 9-10. Jury service is “the solemn obligation of all qualified citizens,” and it shall only be excused on the grounds of compelling personal hardship or when it would be contrary to public welfare, health, or safety. G.S. 9-6(a).
The fact that the venire may not be an exact proportional representation of the race or gender composition found in the larger community is not prima facie proof that defendant’s right to a “fair cross-section” was violated. To establish a cross-section violation, the burden is on the defendant to show:
- That the group alleged to be excluded is a “distinctive” group in the community;
- That the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and
- That this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
See Duren v. Missourri, 439 U.S. 357 (1979); State v. Williams, 355 N.C. 501 (2002); see also G.S. 15A-1211(c) (procedure for challenging jury panel). This evaluation must be made on a case-by-case basis; there is not a specific number or percentage that conclusively demonstrates under-representation. See State v. Golphin, 352 N.C. 364 (2000) (no prima facie case of systemic under-representation where community population was 32% black, but jury pool was only 17.5% black). The defendant must show that “systematic exclusion” by state action caused the disproportionate jury pool (e.g., due to the clerk’s office ‘redlining’ the neighborhoods from which potential jurors are called). See Duren v. Missouri, 439 U.S. 357 (1979); State v. Jackson, 215 N.C. App. 339 (2011) (defendant who offered no evidence as to racial make-up of community or errors in the selection process failed to meet his burden, even though only 3 of 60 potential jurors were African-American).
Furthermore, defendant’s right to a fair cross-section of prospective jurors in the larger venire does not mean the defendant is guaranteed a proportional representation as to the particular jurors who are called up for questioning, nor as to the final twelve jurors who are selected. See Holland v. Illinois, 493 U.S. 474 (1990); Lockhart v. McCree, 476 U.S. 162 (1986). The clerk of court must comply with the statutory directive that the selection of jurors from the pool be random. See G.S. 15A-1214(a) (clerk must call jurors by a system of random selection which precludes advance knowledge of next name that will be called).
And the next juror is…
“Advance knowledge of the identity of the next juror to be called” does not come up often in practice, but it could happen in cases where the court has divided the venire into smaller “panels” to manage the selection process, or in cases that are called for trial later in the session after a large number of jurors have already been seated in other trials or dismissed from service. If only one or two potential jurors are left in the courtroom, then the parties arguably can reasonably anticipate who would likely be called up as a replacement if a currently seated juror were to be excused, in violation of G.S. 15A-1214(a). See State v. Wiley, 355 N.C. 592 (2002) (defendant asserted constitutional and statutory error on grounds that "when only one prospective juror remains, all parties know the identity of the next person called into the jury box" but court held the issue was not properly raised and preserved at trial); State v. Cummings, 353 N.C. 281 (2001) (similar argument involving panels of jurors; not preserved for review).
To avoid this issue, the prosecutor should make sure that a sufficiently large jury pool has been assembled before starting the selection process. Alternatively, the court can call for additional jurors to be sent to the courtroom if needed, and have their names randomly combined with the remaining members of the first set of prospective jurors. See State v. Tirado, 358 N.C. 551 (2004) (“The statute neither prescribes nor proscribes any particular method of achieving random selection.”); see also G.S. 9-11(b) (authorizing judge to order that additional jurors be selected from the master list in the same manner as provided for the selection of regular jurors).
G.S. 9-11(b) also permits the trial judge, in his or her discretion, to direct that additional jurors be summoned to supplement the original venire if it appears that the original pool will not be sufficient. See State v. White, 6 N.C. App. 425 (1969). If absolutely necessary, the judge may even direct the sheriff to go to a public place and locate additional potential jurors, as long as the people selected are otherwise qualified to serve. See G.S. 9-11(a) ("If necessary, the court may, without using the jury list, order the sheriff to summon from day to day additional jurors to supplement the original venire"). There is no particular method of selection required for raising supplemental jurors under this provision, but it must be done impartially. See State v. Nolen, 144 N.C. App. 172 (2001). The court is also empowered to have a special venire brought in from another county, or change venue for the purpose of conducting jury selection in another county, when necessary to ensure a fair trial. See G.S. 9-12; State v. Golphin, 352 N.C. 364 (2000).
Qualifications: Individual Jurors
The qualifications for an individual to serve as a juror are found in G.S. 9-3. The trial judge determines the competency and fitness of jurors. See G.S. 9-14; 15A-1211(b). To serve on a jury, a person must satisfy each of the following criteria:
- Citizen of the state, and resident of the county. See State v. Emery, 224 N.C. 581 (1944) (“we have held, quite recently, that a jury composed of eleven citizens and one alien was not a lawful jury”).
- Eighteen years of age. There is no maximum age for jury service, as long as the person is otherwise competent, but persons over age 72 can ask to be excused based on age. See G.S. 9-6.1(a) (may submit excusal request based on age in writing at any time 5 business days for date summoned to appear); State v. Rogers, 355 N.C. 420 (2002) (judge has discretion to allow or deny the request based on age, but may not adopt a blanket policy of excusing all elderly jurors who request to be excused).
- Physically and mentally competent; must not have been adjudged non-compos mentis. The trial judge has broad discretion to excuse a juror on these grounds. See G.S. 9-3; G.S. 9-6.1(b); State v. Neal, 346 N.C. 609 (1977) (excused for medical problems and valium addiction); State v. Carter, 338 N.C. 569 (1994) (excused due to being 8 months pregnant).
- Able to understand English. This requirement is constitutional, and inquiries into the person’s ability to speak and understand English should be done in English. See State v. Smith, 352 N.C. 531 (2000) (error, but no prejudice, in case where juror was asked in Spanish if he understood English well enough to participate).
- Must not have been convicted of a felony, or have pled no contest to a felony without having citizenship restored. In North Carolina, once a person is unconditionally discharged from prison, his or her rights are automatically restored. See G.S. 13-1(1).
- Must not have served as juror during preceding two years (or as a grand juror in the past six years) in either state or federal court. This requirement applies only if juror was actually sworn in on the prior case, not just summoned or questioned. See G.S. 9-3 (must “have not served as jurors during the preceding two years or who have not served a full term of service as grand jurors during the preceding six years”); State v. Berry, 35 N.C. App. 128 (1978) (“it is actual service as a juror rather than a mere summons for jury duty which disqualifies him for service for the next two years”).
