he will permit the clerk to select the veniremen for the voir dire examination, either in alphabetical or numerical order, or according to the clerk's own discretion. It was their belief that so long as there is no prejudice shown otherwise, when the judge makes certain that each side is satisfied with the jury as seated before they are sworn to try the case, any possible error in seating the jury will have been waived. 3 The split in views in this regard probably stems from the difference between the two basic methods of operating the jury system, that is, the difference between operating under the jury pool system, and operating under the system whereby a limited venire of thirty-five or forty veniremen is drawn and summoned for duty in the court of a particular judge. The different methods of operating are, of course, due largely to local requirements. For example, in the metropolitan multi-judge courts the jury pool system ordinarily is employed, whereas in a majority of the other districts such a system is not used. In some of the districts where the pool system is utilized, the selection of the prospective jurors from the pool is accomplished by the use of a "jury wheel.” Presuming there has been compliance with Section 1864 of Title 28, United States Code, in drawing the names of those making up the pool, a further drawing by the use of a wheel of those who will make up a panel for jury work in a particular trial, of course, amounts to a second drawing by lot of such prospective jurors. To illustrate, Rule 11 of the Calendar Rules of the Southern District of New York (effective January 1, 1960) provides : "Under direction of the chief judge jurors for all trial parts (including the criminal parts) shall be assembled under the supervision of the deputy clerk for jurors. Sufficient numbers drawn from the jury wheel in the office of the deputy clerk for jurors shall be sent by him to each trial part as required." A similar rule in the Northern District of Illinois provides : "Under direction of the emergency motion judge, jurors for all courts shall be assembled in one room and shall be under the supervision of the jury bailiff. Sufficient numbers of jurors whose names are drawn from the jury wheel in the jury bailiff's office shall be sent by the jury bailiff to each court to be empanelled when and as required.” If the writer understands correctly the view of the one group at Monterey, after the prospective jurors have been sent by the jury bailiff to the courtroom in which they are to serve, unless they are called alphabetically or numerically, it would again be necessary to draw by lot from among them those to be seated in the jury box for the voir dire examination. Thus, each will have been drawn by lot a third time before entering the jury box. The recommendation of the Judicial Conference Committee on the Operation of the Jury System seems to bear out the position taken by this group. The Committee recommends that: "The assignment to trial work of jurors reporting for service should be by lot from beginning to end. All jury pools or rotating systems of assigning jurors should operate by lot." " In this regard the Committee sought to ascertain the districts in which the jury pool system is employed, and how jurors are selected from the pool. It also sought to ascertain in what manner the jury is ompaneled, dealing primarily with the manner in which challenges are exercised.' The Report did not set forth the manner in which the prospective jurors are called to be seated in the jury box after they have reported to the courtroom. In its study the Committee found that jurors to be sent to a particular courtroom are selected from a pool by the use of a jury wheel in the District of New Jersey, and as heretofore indicated by reference to the local rules, in the Southern District of New York and the Northern District of Illinois. It found that in the Northern District of Ohio the names are selected by "shuffling jury service See Report of the Judicial Conference Committee on the Operation of the Jury System. The Jury System in the Federal Courts $5, 26 R.F.D. 409, 493 (1960). (Hereinafter sometimes cited as "Report.") 4 N.D. III. R. 29 (effective February 11, 1955). 5 Report 15, 26 F.R.D. at 423, Recommendation XII. 6 Twenty districts use the pool system. Report 85, 26 F.R.D. at 493. "The impanelling of the jury is intimately involved with the voir dire examination itself. Save for the provisions as to challenges and alternate jurors, the trial court is vested with broad discretion as to the manner of impanelling the jury. This broad dis cretion has naturally resulted in the adoption of many different methods." Report 60, 26 F.R.D at 468. cards," and in the Eastern District of Pennsylvania the names are selected from the pool by "drawing tags." In Minnesota, it found that the names are selected from the pool by the use of a box. In the other districts where the jury pool system is used, where a response is indicated to the question of how jurors are selected from the pool in the Appendix to the Committee's Report," i.e., the Northern District of Alabama, the District of Columbia, the District of Maryland, the District of Oregon, and the District of Rhode Island, the names of the prospective jurors for voir dire examination are selected either in the judges' or the clerks' discretion, or in numerical or alphabetical order." It is interesting to note that in the District of Columbia, where perhaps more federal jurors are drawn than in any other district in the nation, save perhaps the Southern District of New York, the prospective jurors are selected from the jury pool by the clerk from the jury list in numerical order. Whether in any of these districts the jurors are seated in the jury box by means of a lot of drawing in the courtroom, we are not informed by the Committee's Report. Assuming that the perferred method is the recommended by the Judicial Conference Committee on the Operation of the Jury System, the question remains whether the failure to select prospective jurors by lot, after intial compliance with Section 1864, in and of itself contravenes a defendant's constitutional right to trial by an impartial jury. There is a dearth of authority bearing directly upon the subject, and after a diligent search no case was found holding that after the initial drawing a further drawing by lot is required. One case was found which holds that "there is no federal statute or rule of court requiring any selection by lot after the first drawing." 10 Whether that single authority would be upheld today, however, is another question. In view of the current interest in the question, the brief digest of cases set forth in the appendix hereto bearing further upon the subject is submitted. From a reading of the cases in the appendix, the writer concludes that the assigning of prospective jurors, duly drawn in compliance with Title 28, United States Code. Section 1864, for jury work by alphabetical or numerical selection, would probably not be in violation of a defendant's constitutional right to an impartial jury, so long as he is allowed the full right of confrontation and challenge. However, the earlier case law, read in the light of the current trend toward greater concern for the individual rights of a defendant, and the recommendation of the Judicial Conference Committee, leads the writer to conclude that a system whereby there is an intercession of independent discretion. either on the part of the judge or the clerk, in assigning prosepective jurors for jury work, would probably be construed as an impingement upon a defendant's right to a fair and impartial trial under article III and the sixth amendment of the Constitution. APPENDIX 1. Unnecessary to have selection by lot after first drawing Albizu v. United States. 88 F.2d 138 (1st Cir.), cert. denied, 301 U.S. 707, 57 S.Ct. 940, 81 L.Ed. 1361 (1937). Clerk selected 28 persons from duly selected panel of 33 qualified jurors from which each party was to select the 12 jurors and two alternates. The court stated that the defendant's contention was that "they should have been selected by lot: but there is no federal statute or rule of court requiring any selection by lot after the first drawing." 88 F.2d at 141. 2. Defendant has no right to examine entire panel Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201. 93 L.Ed. 187 (1948). Clerk followed practice of excusing those who said they did not desire to serve. Contention was that this left government employees and housewives. Held, 8 See Report of the Judicial Conference Committee on the Operation of the Jury System. The Jury System in the Federal Courts. Appendix, pp. 75-80 (1960). Although the summary therein shows twenty districts use a jury pool system, only seventeen districts' affirmative responses are shown in the chart, and only twelve districts' responses to the inquiry as to the method of selection are shown in the chart. This may be explained in part by the fact that only thirteen districts have jurors report to a central jury room. The majority of the remainder have jurors report directly to the courtroom.. Ibid. 10 Albizu v. United States. 88 F. 2d 138, 141 (1st Cir.). cert. denied, 301 U.S. 707, 57 S. Ct. 940, 81 L. Ed. 1361 (1937). CIVIL RIGHTS method was not prejudicial, even though all members of final jury in case were Cain v. United States, 19 F.2d 472, 475 (8th Cir. 1927). "The contention that the defendant was entitled to have a trial jury selected from the entire panel embraced in the venire for the term is, of course, too All he was entitled to was a jury of 12 unbiased frivolous for extensive notice. and unprejudiced jurors out of any part of the regular panel, if there were enough of such panel not engaged in other cases on trial to provide so many Kelly v. United States, 293 Fed. 689, 692–693 (4th Cir. 1923). The trial court eliminated 12 members of the panel who had participated in a trial of defendant on a different charge a few days earlier. This left 18 members, two of whom defendent had peremptorily challenged at the earlier trial, and for this reason, defendant objected. Held, absent a standing rule or special order, "the manner and method of impaneling the jury is within the discretion of The action of the trial court, dismissing the 12 who sat the trial court. as jurors in the earlier case was approved. Tierney v. United States, 280 Fed. 322 (4th Cir.), cert, denied, 259 U.S. 588, 42 S.Ct. 590, 66 L.Ed. 1077 (1922). The trial court divided the jurors into three panels of 12 each at the beginning of the term. One panel would be called, with replacements filled from the other panels. Defendant challenged the entire panel of 12, claiming the right to have 28 qualified jurors presented at one time. The method used by the trial court was approved, the court pointing out that the right to an imparial jury is one of rejection, not selection. The court stated defendant was entitled to a list of jurors, which apparently was furnished. Browne v. United States, 145 Fed. 1, 78 (2d Cir. 1905), cert. denied, 200 U.S. 618, 26 S.Ct. 755, 50 L.Ed. 623 (1906). "The practice suggested [by defendant] that, before peremptory challenging begins, the defendant shall have the opportunity to examine on voir dire not only those whose names have been drawn from the wheel and who have gone into the box, but also the entire panel from whom vacancies caused by challenges may be filled, is certainly novel in this circuit, and we know of no authority which constrains its adoption. The defendant's right of choice as to whom he shall challenge is sufficiently secured by his being provided in advance of the drawing with a list of the names and residences of the jurymen constituting the panel (and the subsequent panel of talesmen) from whom the 12 were to be drawn." NOTE. Title 18 U.S.C. § 3432 requires the refendant be furnished a jury list Hamer v. United prior to trial in capital offenses and charges of treason. Absent a statute, however, there is no duty to furnish such lists prior to trial. States, 259 F.2d 274 (9th Cir. 1958), cert. denied, 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577 (1959); Brown v. Johnson, 126 F.2d 727 (9th Cir.), cert. denied, 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507 (1942). 3. The right to an impartial jury is one of rejection, not selection United States v. Marchant, 25 U.S. [12 Wheat.] 480, 481, 6 L. Ed. 700 (1827). "The right of peremptory challenge is not, of itself, a right to select, but a right to reject jurors. *** The right, therefore, of challenge, does not necessarily draw after it the right of selection, but merely exclusion. It enables the prisoner to say who shall not try him; but not to say who shall be the particular jurors to try him." Philbrook v. United States, 117 F. 2d 632 (8th Cir.), cert. denied, 313 U.S. 577, 61 S.Ct. 1097, 85 L.Ed. 1534 (1941). The court followed the practice of calling 12 jurors to the jury box, examining them, and then permitting exercise of challenge for cause. As soon as 12 apparently qualified jurors were in the box. peremptory challenges were exercised in rotation by the parties. The appellate court approved this method, and in doing so, pointed out that the right of peremptory challenge is one of rejection, not of selection. Kloss v. United States, 77 F.2d 462 (8th Cir. 1935). The defendant objected because the government was given two extra peremptory challenges. Defendant did not exhaust his peremptory challenges, however. The court held that defendant had no right to any particular juror, but only to a fair and impartial jury. Tierney v. United States, supra 280 Fed. 322. The court held that defendant had no right to examine the entire panel before exercising his peremptory challenges, pointing out that the right to an impartial jury is one of rejection, not selection. Highshew v. Kushto, 126 Ind. App. 584, 133 N.E. 2d 76 (1956), transfer denied, 235 Ind. 505, 134 N.E. 2d 555 (1956). Litigants have no right to a particular juror, but only to a fair and impartial jury. The right preserved is thus one of rejection, not selection. NOTE. This policy was recently approved in United States ex rel. Dukes v. Sain, 297 F. 2d 799 (7th Cir.), cert. denied, 369 U.S. 868, 82 S.Ct. 1035, 8 L.Ed. 2d 86 (1962). There, defendant, a Negro, asserted denial of due process and equal protection, by reason of the action of the state's attorney, who had excluded all Negroes from the panel by means of judicious exercise of his peremptory challenges. The district court's dismissal of a petition for a writ of habeas corpus was affirmed because the defendant has a right to reject, but not to select, those who will try him, and the government had the same right to peremptory challenges as the defendant. 4. Errors in manner of drawing jury must be presented early United States v. Meyer, 113 F.2d 387, 396 (7th Cir.), cert. denied, 311 U.S. 706, 61 S.Ct. 174, 85 L.Ed. 459 (1940). The defendants complained, upon appeal, that the trial court had excused certain jurors, and ordered additional jurymen summoned, without naming the additional jurymen. The appellate court stated: "A complete answer to the defendants' position with regard to the venire exists in the well known rule that errors in the manner of drawing a jury must be presented by challenge to the array before, or at the latest, at the time of the examination of the jury." 5. Miscellaneous Pointer v. United States, 151 U.S. 396, 409-410, 14 S.Ct. 410, 38 L.Ed. 208 (1894). The defendant "cannot be compelled to exercise his peremptory challenge until he has been brought face to face, in the presence of the court, with each proposed juror, and an opportunity given for such inspection and examination of him as is required for the due administration of justice. (Dictum.) Lewis v. United States, 146 U.S. 370, 13 S.Ct. 136, 36 L.Ed. 1011 (1892). The defendant must be given an opportunity to come face to face with a juror before being required to exercise his peremptory challenge. NOTE. It may well be that the requirements of these two cases are now covered by Rule 43 of the Federal Rules of Criminal Procedure, which requires that the defendant shall be present at every stage of the trial, including the impaneling of the jury. These cases do not require that the defendant have the right to examine all the jurors as to their qualifications before being required to exercise his privilege of peremptory challenge as to any of them. St. Clair v. United States, 154 U.S. 134, 14 S.Ct. 1002, 38 L.Ed. 936 (1894). United States v. Henderson, 298 F.2d 522 (7th Cir.), cert. denied, 369 U.S. 878, 82 S.Ct. 1150, 8 L.Ed.2d 280 (1962). Using formal education as one of the criteria for accepting or rejecting a prospective juror by the clerk and the jury commissioner is not improper. The court stated, "Defendant has no constitutional or statutory right that ‘'ignorance' be represented in the jury box." Judge Schnackenberg agreed with the majority, but wrote a separate concurring opinion stating: "A lack of literacy denotes illiteracy, not ignorance. An illiterate person may be a wise person. 28 U.S.C.A. § 1861 does not disqualify as jurors persons because they are ignorant; it disqualifies them because they are illiterate, i.e., unable to read, write, and understand the English language." 298 F.2d at 526. Kloss v. United States, supra 77 F.2d 462. Failure to exercise all peremptory challenges waives objection to improper presentation of jury at impanelling. Tierney v. United States, supra 280 Fed. 322. Failure to exhaust peremptory challenges prevents defendant from complaining that jurors were improperly presented. Anno. 3 A.L.R.2d 500, 501 (1949). The general rule is that a juror cannot be challenged peremptorily after he has been accepted by the challenging party, except in the discretion of the court. In addition to the above authorities, see the following for general discussions in the area of law discussed herein: Orfield, Trial Jurors in Federal Criminal Cases, 29 F.R.D. 43 (1962). (See particularly pp. 101-106.) 31 Am.Jur. Jury § 135 (1953). 50 C.J.S. Juries §§ 193-197 (1947). Hon. SAM J. ERVIN, Jr., U.S. DISTRICT COURT, FOR THE DISTRICT OF MARYLAND, Chairman, Subcommittee on Constitutional Rights, Committee on the Judiciary, Senate Office Building, Washington, D.C. DEAR SENATOR ERVIN: Replying to your letter of July 1 with respect to S. 3296, the Judges of our Court are opposed to the provisions of Title I of the Bill which would make significant changes in the jury selection methods of federal courts. Our Court has been following the recommendations of the Judicial Conference of the United States reported in 26 F.R.D. 409, at pages 421 et seq. The method of selection which we have used has been checked on a number of occasions by very competent attorneys representing defendants in criminal cases and others and have been considered fair to all concerned. We believe that the proposed changes would make it more difficult for us to get fair juries and, in practice, would result in a panel of jurors which would be less satisfactory to almost all the litigants in our Court, whatever their race, color or creed. Our Judges also feel that it would be most desirable for your Committee to obtain the considered opinion of the Judicial Conference of the United States before making such a radical change in a system which has been working well almost everywhere. DEAR SENATOR ERVIN: In answer to your letter of July 1 to Chief Judge Clary, and at his request, I am forwarding the following documents to describe the jury selection machinery as it actually operates in our District and the problems which Title I of the above Bill would create for our court: 1. Letter of July 21, 1966, from our Clerk, John J. Harding, Esq., with Exhibits A and B attached (the juror qualification questionnaire mentioned in your letter is attached to Exhibit B). 2. Sheet entitled "Method of Selecting Jurors, United States District Court, Eastern District of Pennsylvania," prepared by our Jury Commissioner, Hon. E. J. Carroll. 3. Sheet entitled "Proposed Jury Selections vs. Present Practice," also prepared by our Jury Commissioner. The sponsors who recommend jurors to the above-mentioned officials of our court are leading citizens from all walks of life and of all races and creeds (labor union leaders, religious leaders, civic leaders, academic leaders, business leaders, fraternal organization leaders, etc.), so that we feel our juries now comprise an accurate cross-section of our community. At present, we use approximately 2500 jurors per year, whereas § 1864 (6) of the proposed Bill would require us to secure 23.679 potential jurors a year. As |