Jury selection

“ Even assuming that Congress did not consider voir dire to be part of trial, it is unlikely that it intended to allow a magistrate to conduct jury selection without procedural guidance or judicial review. ”

“ Any legislation which requires the selection of jurors to be made from a less number of freemen than the whole, makes the jury selected an illegal one.
If a part only of the freemen, or members of the state, are eligible as jurors, the jury no longer represent "the country," but only a part of "the country."
If the selection of jurors can be restricted to any less number of freemen than the whole, it can be restricted to a very small proportion of the whole; and thus the government be taken out of the hands of "the country," or the whole people, and be thrown into the hands of a few. ”

“ The system of jury selection which Congress has adopted contemplated, therefore, that juries in the federal courts sitting in such States would be representative of both sexes. If women are excluded, only half of the available population is drawn upon for jury service. To put the matter another way, Congress has referred to state law merely to determine who is qualified to act as a juror. Whether the method of selecting a jury in the federal court from those qualified is or is not proper is a question of federal law. ”

“ But besides reforming the jury system by broadening the field of selection and by accepting in many cases a verdict of two thirds or three fourths, it may be reformed also as to certain cases by dispensing with it entirely, at least in its present form. Why not have trained men for jurors as well as for judges? Why is it supposed that twelve men drawn at random, ignorant of law, and unused to weighing evidence, will reach a just decision better than one, three, or five men educated to and experienced in such work? ”

“ The deliberate selection of jurors from the membership of particular private organizations definitely does not conform to the traditional requirements of jury trial. No matter how high principled and imbued with a desire to inculcate public virtue such organizations may be, the dangers inherent in such a method of selection are the more real when the members of those organizations from training or otherwise acquire a bias in favor of the prosecution. ”

“ Nor is a daily wage earner listed among those exempt from jury service. § 200. And under the state law, 'A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror's business, but only when material injury or destruction to said juror's property or of property entrusted to said juror is threatened * * *.' § 201.
Moreover, the general principles underlying proper jury selection clearly outlaw the exclusion practiced on this instance. Jury competence is not limited to those who earn their livelihood on other than a daily basis. ”

“ The advocates of the abandonment of the jury system point to this court as their strongest argument. No time is lost in the selection of a jury,—a matter often of hours in the General Sessions in cases of no greater importance. There is no opening address on the part of the district attorney or counsel for the defendant,—the written statement or information sworn to by the complainant being entirely sufficient for the court. Cross-examination is cut down to its essentials and tests of "credibility" are almost unnecessary. ”

“ The barriers to a suit by an excluded juror are daunting. Potential jurors are not parties to the jury selection process and have no opportunity to be heard at the time of their exclusion. Nor can excluded jurors easily obtain declaratory or injunctive relief when discrimination occurs through an individual prosecutor's exercise of peremptory challenges. ”

“ Between a partisan juror and a professional juror it is only a choice between evils. If to fill the panel with bystanders means to fill it with men standing by for the purpose of being called, we are ready for a law which will compel the sheriff to seek talesmen beyond the limits of the court house. Any change, the aim of which is to compel the selection of men of ordinary intelligence and approved integrity as jurors, will be acceptable to the people. But now that all men read the news, the information thus acquired should no longer render them incompetent for jury service. ”

“ The name of every property owner and every voter is in the jury box. We recognize, too, that we are now reviewing a constitutional objection to a state court conviction, and we may not act to alter practices of a state which are short of a denial of equal protection or due process in the selection of juries.23 States should decide for themselves the quality of their juries as best fits their situation so long as the classifications have relation to the efficiency of the jurors and are equally administered. ”

“ It is supposed that, if twelve men be taken, by lot, from the mass of the people, without the possibility of any previous knowledge, choice, or selection of them, on the part of the government, the jury will be a fair epitome of "the country" at large, and not merely of the party or faction that sustain the measures of the government; that substantially all classes of opinions, prevailing among the people, will be represented in the jury ”

“ The manner of selection is one calculated to secure an impartial jury, and the purpose of criminal procedure is not to enable the defendant to select jurors, but to secure an impartial jury. 'The accused cannot complain if he is still tried by an impartial jury. He can demand nothing more. Northern P. R. Co. v. Herbert, 116 U.S. 642, 29 L. ed. 755, 6 Sup. Ct. Rep. 590. The right to challenge is the right to reject, not to select, a juror. If from those who remain an impartial jury is obtained, the constitutional right of the accused is maintained.' Hayes v. ”

“ The government has not only assumed arbitrarily to classify the people, on the basis of property, but it has even assumed to give to some of its judges entire and absolute personal discretion in the selection of the jurors to be impanelled in criminal cases, as the following statutes show. ”

“ But it is our duty as well as the state's to see to it that throughout the procedure for bringing him to justice he shall enjoy the protection which the Constitution guarantees. Where, as in this case, timely objection has laid bare a discrimination in the selection of grand jurors, the conviction cannot stand because the Constitution prohibits the procedure by which it was obtained.'
A grand jury serves a high function. ”

“ And, its exercise must always accord with the fact that the proper functioning of the jury system, and, indeed, our democracy itself, requires that the jury be a truly representative of the community', and not the organ of any special group or class. If that requirement is observed, the officials charged with choosing federal jurors may exercise some discretion to the end that competent jurors may be called. ”

“ In civil causes, where a decision follows the evidence, it is difficult to see why substantial justice would not be done by a majority, or, at most, a two-thirds majority verdict; but we cannot abandon the old rule in criminal cases without trespassing on the sacred right of the accused to the benefit of every reasonable doubt; for a divided jury, in itself, raises a doubt as to his guilt. The law recently passed making it a misdemeanor for a man to ask for appointment as a juror, or for an attorney to seek a place for a friend, is a step in the right direction. ”

“ The use of objections to the composition of juries is lately so much resorted to for purposes of delay, however, and the spectacle of a defendant putting the grand jury on trial before he can be tried for a crime is so discrediting to the administration of justice, that it is time to examine the basis for the practice. ”

“ Whatever may be the power of the states in respect of grand and petit juries, it is firmly settled that the Constitution absolutely forbids the trial and conviction, in a Federal civil tribunal, of any one charged with crime, otherwise than upon the presentment or indictment of a grand jury, and the unanimous verdict of a petit jury, composed, as at common law, of twelve jurors. ”

“ The purpose of the jury system is to impress upon the criminal defendant and the community as a whole that a verdict of conviction or acquittal is given in accordance with the law by persons who are fair. The verdict will not be accepted or understood in these terms if the jury is chosen by unlawful means at the outset. Upon these considerations, we find that a criminal defendant suffers a real injury when the prosecutor excludes jurors at his or her own trial on account of race. ”

“ The Court has the right to excuse a juror if he is not on the assessment roll. The Supreme Court has decided that a man has the right to be investigated by a Grand Jury of nineteen men who are qualified according to the statute and none others. It is not necessary to take for grand jurors the nineteen whose names are first drawn from the box. ”

“ Nor is trial by jury secured in criminal cases. It is true that, in the first instance, in the inferior court, the trial is to be by jury. In this, and in this only, is the difference between criminal and civil cases. But, sir, the appellate jurisdiction extends, as I have observed, to cases criminal, as well as civil, and on the appeal the court is to decide not only on the law but on the fact. If, therefore, even in criminal cases, the general government is not satisfied with the verdict of the jury, its officer may remove the prosecution to the Supreme Court ”

“ If the defendant has no right to object to the prosecutor's improper exclusion of jurors, and if the trial court has no duty to make a prompt inquiry when the defendant shows, by adequate grounds, a likelihood of impropriety in the exercise of a challenge, there arise legitimate doubts that the jury has been chosen by proper means. ”

“ In isolated instances recalcitrant or irrational juries may acquit rather than apply the law to the case before them. Our system has wrestled with this problem for hundreds of years, however, and important safeguards have been devised to minimize miscarriages of justice through the malfunctioning of the jury system. Perhaps to some extent we sacrifice efficiency, expedition, and economy, but the choice in favor of jury trial has been made, and retained, in the Constitution. We see no sound reason in logic or policy not to apply it in the area of criminal contempt. ”

“ He charged him with contempt for refusing to answer. We reversed the conviction, saying,
'It would be very strange if our system of law permitted a judge to act as a grand jury and then try the very persons accused as a result of his investigations. Perhaps no State has ever forced a defendant to accept grand jurors as proper trial jurors to pass on charges growing out of their hearings. A single 'judge-grand jury' is even more a part of the accusatory process than an ordinary lay grand juror. ”

“ The court is invested with such discretion as enables it to do justice between the government and the accused. If it be discovered at any time during a trial that the substantial rights of the accused may be prejudiced by a submission to the same jury of more than one distinct charge of felony among two or more of the same class, the court, according to the established principles of criminal law, can compel an election by the prosecutor. ”

“ It is obvious that the mere fact that no persons of the colored race were selected as jurors is not evidence that such persons were excluded on account of their race or color. The law only required one hundred 'sober and judicious' persons to be selected to serve as grand jurors, and one hundred and fifty such persons as petit jurors, out of the whole body of the county, and these numbers may have been selected without any other consideration than their merit and fitness to perform jury duty. ”

“ But, and this is another difference between the real and the ideal in the jury system, we have in a large number of cases the more extraordinary spectacle of a jury solemnly sitting though a trial for the purpose of listening to the evidence and forming their own opinion as to the guilt or innocence of the accused, and then being instructed by the court as to the verdict they shall find. It is, as every one knows, the most common of occurrences for the judge to lecture the jury upon their verdict and to refuse to receive it. ”

“ The public impatience to know the constitution of the jury panel was immense; and Judge Jackson, who was no lip Liberal, but a Tory and a bigot, acted with commendable fairness. He ordered it to be read aloud the day before my trial. Lo! the prolific Government had conceived a new device. Felony cases are invariably tried by a common jury. So they have been tried for centuries. So Mitchel, Martin, Williams, and O'Doherty had been tried. But you summoned for this Commission, not only special jurors, but special jurors alone. ”

“ Even more than this, the names of the twelve jurymen and of the two supplementary jurymen will certainly be published in the French newspapers with details about the men themselves and their professions, before the trial begins, and this of itself forms an abuse which must inevitably react on the absolute impartiality of a jury, which should be a first necessity of any criminal trial in any country, for numbers of newspapers will tell them what they ought to do and what their verdict ought to be. ”

“ In essence, the right to jury trial guarantees to the criminally accused a fair trial by a panel of impartial, 'indifferent' jurors. The failure to accord an accused a fair hearing violates even the minimal standards of due process. ”