What Happens if a Juror is Ineligible?
Many people try to avoid jury service. It's a substantial annoyance for just about everyone and much of it can be painfully dull. We do our best to keep the presentation interesting and the jury awake but most of what transpires in a courtroom is a lot less interesting (and feels a lot less important) than a juror's normal day. Add in the financial loss associated with missing work and it's understandable that most hands shoot up when a judge asks “is there anyone for whom jury service would be an unreasonable burden?"
Given that, it's a little surprising that folks with rock solid grounds for avoiding jury service still make their way onto juries. I'm speaking about people who are legally prohibited from serving as jurors – non-citizens, felons in many jurisdictions, and folks who cannot speak or read English. If you fall into one of those buckets you can generally get yourself excused quickly and permanently within a few minutes of showing up. But folks don't always know the law, and many assume that if they got a jury summons in the mail it must mean that they can be a juror. “The government wouldn't tell me to skip work for no reason, right?” If only…
But what happens when someone not allowed on a jury ends up rendering a verdict? And how can you avoid complications from a disqualified juror?
The first thing to consider is where the right to properly qualified jurors comes from. You might assume that the 6th and 7th Amendments to the Constitution would require this. They do guarantee the right to a jury trial in criminal cases and civil suits involving more than $20. But while the Constitution guarantees you a jury it doesn't have a whole lot to say about who is on it. And the Supreme Court has held that the states (or in federal court Congress) can decide jury qualifications by statute. [1] This isn't a totally unbounded right. As we've written before states cannot throw racial minorities or women off juries even if other categories like religion are still up for grabs. But characteristics like citizenship and felon status are well within the discretion available to the legislatures and their presence on a jury (whether deliberate or not) is not, absent more, a constitutional issue. [2]
As such, the rules for who is on the jury and the potential remedies if these rules are broken are set by statute. In the federal system this is controlled by 28 U.S.C. § 1865. That statute provides that the court “shall deem any person qualified to serve on grand and petit juries” unless he or she:
(1) is not a citizen of the United States eighteen years old who has resided for a period of one year within the judicial district;
(2) is unable to read, write, and understand the English language with a degree of proficiency sufficient to fill out satisfactorily the juror qualification form;
(3) is unable to speak the English language;
(4) is incapable, by reason of mental or physical infirmity, to render satisfactory jury service; or
(5) has a charge pending against him for the commission of, or has been convicted in a State or Federal court of record of, a crime punishable by imprisonment for more than one year and his civil rights have not been restored.
That's all well and good, but what happens if the court puts someone on the jury who isn't qualified? In that case 28 U. S.C. § 1867 governs. It says that a party, whether civil or criminal, can challenge whether the jury selection was lawful by filing a motion to stay proceedings “before the voir dire examination begins or within seven days after [the party] discovered or could have discovered by the exercise of diligence the grounds" for the challenge. And critically § E of that statute makes clear:
The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime, the Attorney General of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title.
The combination of an extremely short window to challenge that begins when disqualification “could have been discovered” and an exclusive remedy present a very serious obstacle to anyone who would try to challenge a verdict based upon a non-citizen or a felon on the jury. The key bit here is the “could have discovered” language which puts the onus on parties to either ask all prospective jurors about potential disqualifications or request that the court do so. If you don't put it to the jury in voir dire your time to challenge runs out seven days after voir dire ends at which point the trial is still probably going on.
What if you did ask and the juror lied about it? That was the situation addressed in United States v. Boney. [3] There a juror was questioned in voir dire about his criminal background. But he failed to disclose that he had been convicted of grand theft and arrested for various other crimes. The court held that the felon status alone, even coupled with the deceit, was not sufficient to order a new trial. However, the panel found the juror’s conduct disturbing enough to order the District Court to hold an evidentiary hearing to determine whether the juror had lied about potential bias:
But we believe that a juror's refusal to admit his felony status is particularly troublesome. Unlike some information sought in voir dire, a question about felon status would strike the average juror as extremely serious and sensitive. Lying about a factor as important (and as easy to verify through public records) as felon status raises at least the inference that the juror had an undue desire to participate in a specific case, perhaps because of partiality. Because the record provides no evidence that the motivation for the lie was unrelated to bias in this case, it was an abuse of discretion under these facts for the trial judge not to have held an evidentiary hearing. [4]
State courts operate under different statutory regimes, but most apply the same rough logic to questions of juror disqualification. A party waives objections to unqualified jurors by not inquiring about jury qualifications in voir dire and even active concealment requires a showing of prejudice before a party can get a new trial. [5]
Why do courts take this approach? It's largely about avoiding “free-roll” trials, particularly for criminal defendants. The concern is that a party who discovers that a juror is unqualified could keep that information in their pocket until the verdict is announced. If the verdict goes well, they can forget about it. If not, they can challenge the result and seek a do-over.
How often this would actually occur is an open question but it's a concern that animates a lot of waiver jurisprudence, most commonly in the criminal context but also with respect to issues like personal jurisdiction on the civil side.
In addition to free-roll concerns there is also a certain skepticism about how much individual juror qualifications genuinely matter. At the limit you could imagine something genuinely unfair, like a jury drawn from a middle school or a jury made of members of the Iranian religious police. But realistically a single juror who happens to be disqualified just isn't that likely to change the result. This is particularly true when it comes to something like language where a juror who does not speak or read English is unlikely to convince his or her fellow jurors to do anything. And courts are loathe to rerun trials based upon errors that genuinely don't make a difference.
How can you protect your client from the consequences of this rule? One answer is to ask about juror qualifications in voir dire or request an inquiry from the court. That won't guarantee you a new trial if someone slips through. But it will at least set you up to argue for one should you have an adverse result and a credible reason to suspect bias or prejudice.
[1] Carter v. Jury Commission of Greene County, 396 U. S. 320, 332-33 (1970).
[2] Owens v. State, 924 A.2d 1072, 1088-89 (Md. 2007).
[3] 977 F.2d 624 5 (D.C. Cir. 1992).
[4] Id. at 634–3.
[5] See, e.g., Wilson v. Childs, 315 S. C. 431 (1993); Owens v. State, 924 A.2d 1072, 1088-89 (Md. 2007); In Re. J.O., 38 S.W. 3d 718 (Tx. App. 2000).
