The Sixth Amendment to the U.S. Constitution guarantees a person accused of crime the right to “trial, by an impartial jury of the state and district” where the crime allegedly occurred.1
That “impartial” jury will be called upon to make the ultimate decision on the merits of the accused’s case. Accordingly, who actually sits on that jury, how those individuals interact with one another or act together as a whole, will be critical in determining the outcome.
The selection of individual jurors is therefore one of the most critical stages in the criminal process. Obtaining jurors who will identify with your client, who are not offended by the particular crime charged and who can understand, empathize and ultimately agree with your defense is crucial. Once the jury has been selected, the advocate must tailor his or her evidence, witnesses, testimony and arguments to the jurors who end up in the box. However, most prosecutions provide for few alterations and only limited leeway for tailoring your defense to suit your audience. Accordingly, the jury “selection” process becomes even more critical.
In actual fact, the parties do not “select” or “choose” the jurors, they like or want to serve, rather they excise those they do not want to have as jurors in their case by exercising challenges whether peremptory or for cause. And the defendant has a right to be present during the empanelling unless personal, on the record, waiver of that right is made. US v. Gordon, 829 F.2d 119 (D.C. Cir. 1987). There is no harmless error analysis as to defendant’s absence. To hold [the Defendant=s] absence harmless . . . therefore would be to reconstruct what might have eventuated had [the Defendant] been present, when that cannot not be truly reconstructed with a degree of certainty necessary to avoid the reasonable possibility of prejudice. U. S. v. Alikpo, 944 F.2d 206, 210 (5th Cir. 1991).
See also U.S. v. Sanchez, No. 94-60686 (5th Cir. 1996).
In an unpublished decision, the Fifth Circuit held the district court abused its discretion in impaneling an anonymous jury to hear the trial of a Galveston police officer who was accused of using the threat of arrest to coerce five suspected prostitutes to engage in various sexual acts with him against their will. Further, [i]n closer cases on the merits of requiring anonymity, there might be room for a harmless error analysis, but this is not such a case. The Fifth Circuit ordered a new trial.
1The Supreme Court has held that the Sixth Amendment does not guarantee the right to a jury for sentencing. Spaziano v. Florida, 468 US 447, 464-65 (1984). However, Spaziano’s conclusion does not extend to capital punishment; a jury must make the essential findings required to impose the death penalty. Hurst v. Florida, 577 U.S. 92 (2016). For lesser offenses, he Supreme Court has held fast to the bright line rule that if maximum punishment for a crime is six months or less, no Sixth Amendment right to a jury attaches. Blanton v. City of North Las Vegas, 489 US 538, 109 S.Ct. 1289, 103 L.Ed.2d 550 (1989).