Trial Jurors in Federal Criminal Cases

Full title: TRIAL JURORS IN FEDERAL CRIMINAL CASES

Court: United States District Court, D. Alaska

Date published: Jan 1, 1962

29 F.R.D. 43 (D. Alaska 1962)

Opinion

January 1, 1962

TRIAL JURORS IN FEDERAL CRIMINAL CASES By LESTER B. ORFIELD^_

_ Professor of Law, Indiana University; member United States Supreme Court Advisory Committee on Rules of Criminal Procedure, 1941-1946; author of Criminal Procedure from Arrest to Appeal (1947) and Criminal Appeals in America (1939).

Rule 24 of the Federal Rules of Criminal Procedure, 18 U.S.C.A., entitled "Trial Jurors," provides:

"(a) Examination. The court may permit the defendant or his attorney and the attorney for the government to conduct the examination of prospective jurors or may itself conduct the examination. In the latter event the court shall permit the defendant or his attorney and the attorney for the government to supplement the examination by such further inquiry as it deems proper or shall itself submit to the prospective jurors such additional questions by the parties or their attorneys as it deems proper.

"(b) Peremptory Challenges. If the offense charged is punishable by death, each side is entitled to 20 peremptory challenges. If the offense charged is punishable by imprisonment for more than one year, the government is entitled to 6 peremptory challenges and the defendant or defendants jointly to 10 peremptory challenges. If the offense charged is punishable by imprisonment for not more than one year or by fine or both, each side is entitled to 3 peremptory challenges. If there is more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly.

"(c) Alternate Jurors. The court may direct that not more than 4 jurors in addition to the regular jury be called and impanelled to sit as alternate jurors. Alternate jurors in the order in which they are called shall replace jurors who, prior to the time the jury retires to consider its verdict, become unable or disqualified to perform their duties. Alternate jurors shall be drawn in the same manner, shall have the same qualifications, shall be subject to the same examination and challenges, shall take the same oath and shall have the same functions, powers, facilities and privileges as the regular jurors. An alternate juror who does not replace a regular juror shall be discharged after the jury retires to consider its verdict. Each side is entitled to 1 peremptory challenge in addition to those otherwise allowed by law if 1 or 2 alternate jurors are to be impanelled, and 2 peremptory challenges if 3 or 4 alternate jurors are to be impanelled. The additional peremptory challenges may be used against an alternate juror only, and the other peremptory challenges allowed by these rules may not be used against an alternate juror."

I. HISTORY OF DRAFTING RULE 24

Rule 47 of the first draft of the Federal Rules of Criminal Procedure, dated September 8, 1941, was modeled quite closely on Rule 47 of the Federal Rules of Civil Procedure, 28 U.S.C.A. The first two sentences of subdivision (a) were almost identical with the present Rule 24(a) of the Criminal Rules, and were largely modeled on Rule 47(a) of the Civil Rules. But the following provision also appeared. "In the examination of prospective jurors, if any prospective juror gives an intentionally false or intentionally misleading answer to any question asked by an attorney or by the court the prospective juror shall be subject to penalty by the court for contempt of court and shall be subject to removal from the panel or from the jury at any time when the false or misleading answer may be brought to the attention of the court."

Rule 47(a) also dealt with peremptory challenges. It provided: "The number of peremptory challenges which will be permitted to the defendant or his attorney and the number which shall be permitted to the attorney for the government shall be the same. The number shall be the maximum number which is permitted to the defense or if larger, to the prosecution [by these rules] [by statute of the United States.]

Rule 47(b) provided for alternate jurors in language much the same as Rule 47(b) of the Civil Rules. A single sentence was different. "An alternate juror who does not replace a principal juror shall be discharged after the jury returns its verdict or earlier in the discretion of the court." The Civil Rule did not contain the last eight words.

The Advisory Committee had before it many suggestions. The Committee for the Southern District of Florida thought that there should be a rule on selection of the foreman, and as to what the jurors may have with them in their deliberations. Judge Miller thought that federal jurors had to serve too long. In Kentucky federal jurors served six weeks and state jurors only two. The Committee for the District of Arkansas thought that jurors should be automatically excused without peremptory challenges "in any case in which any appearance whatever of interest or partiality is developed against him." Harry M. Cohn of Cincinnati would protect joint defendants as to the number of peremptory challenges. Defendants would not have to join in the ten challenges given to defendants charged with felony. If there are two defendants each should have five challenges. If there are three or more each should have four challenges. Fredrick F. Faville of Iowa thought that the defendant and the government should have the same number of peremptory challenges. The Committee for the District of Colorado suggested that a defendant be furnished with a list of the jury panel containing the names and addresses of all jurors at least 7 days prior to trial. It also suggested that counsel for the parties be given the right to examine the jurors on voir dire subject to the control of the court. The committee for the Eastern District of New York would protect joint defendants as to the number of peremptory challenges.

The Committee for the District of New Jersey would also similarly protect joint defendants; the names of jurors should be supplied to the defendant a reasonable time before trial without expense to the defendant; the rule should restrict communications between any person and the jury after the jury retires; and polling of the jury should be permitted at the request of either party.

Rule 61(a) of the second draft, dated January 12, 1942, pointed out that no rule on selection of the panel was proposed at this time as the subject was being investigated by Judge Knox's Committee and the Administrative Office of the United States Courts. Rule 61(b) on examination was like the prior draft in Rule 47(a) but left out the sentence on punishing a prospective juror who gives false or misleading answers. Rule 61(c) on challenge equalized the number of peremptory challenges. As to treason and capital offences the government and the defendant had twenty; as to other felonies each had six, but if several defendants were involved they had ten. As to misdemeanors each side had six. All challenges whether to the array or panel, or to the individual juror for cause or favor, shall be tried by the court. Rule 61(d) on alternate jurors contained a new provision as to how long an alternate juror served. "An alternate juror who does not replace a principal juror before the jury retires shall remain in the custody of the marshal and shall not be discharged." Thus an alternate juror could first come in even when the jury was deliberating. A California statute so providing had been held constitutional.¹ But the alternates could not be present in the jury room prior to the discharge of a principal juror.²

1 People v. Davidian, 20 Cal.App. 2d 720, 67 P.2d 1085 (1937). The statute was enacted in 1933.

2 People v. Bruneman, 4 Cal.App.2d 75, 40 P.2d 891 (1935); People v. Britton, 4 Cal.2d 622, 52 P.2d 217, 102 A.L.R. 1065 (1935).

Rule 61 of the third draft, dated March 4, 1942, was substantially the same as the second draft. The subsection on alternate jurors contained a new sentence: "An alternate juror who does not replace a principal juror before the jury retires shall remain subject to call and shall not be discharged until the principal jurors are discharged." Thus the words "subject to call" replaced the words "in the custody of the Marshal." The Committee on style should consider the desirability of such change.

Rule 26 of the fourth draft, dated May 18, 1942, made some changes as to peremptory challenges. Each side was to have three challenges in misdemeanor cases. In all except capital cases if there is more than one defendant, the defendants shall be jointly entitled to ten challenges. The rule now simply provided: "All challenges shall be tried by the court." The former language was "all challenges, whether to the array or panel, or to the individual jurors for cause or favor, shall be tried by the court." Provision was made for up to four alternate jurors. One sentence provided: "An alternate juror before the jury retires shall remain under order of the court and shall not be discharged until the principal jurors are discharged." The language "under order of the court" replaced "subject to call."

Rule 27 of a draft known as "Preliminary Draft", dated May 1942, in its subsection (b) provided that where there is more than one defendant in a felony case they are jointly entitled to ten challenges; if there is more than one defendant in a misdemeanor case they are jointly entitled to six challenges. This draft was submitted to the Supreme Court for comment. The Court asked whether there has been any experience which indicates that four alternate jurors should be drawn instead of two as at present provided. Has the committee satisfied itself that it is desirable or constitutional that an alternate juror may be substituted after the jury has retired and begun its deliberation? With respect to the qualifications of petty jurors the Court pointed out that a Committee of the Conference of Senior Circuit Judges had for a year been engaged in a study of the qualifications and improvement of jurors in federal courts. The Advisory Committee should give consideration to such study.

The fifth draft dated June 1942 in its Rule 27(a) attained the final form as to the topic of examination. No change was made as to peremptory challenges, nor as to alternate jurors. The Committee annotation defended the use of alternate jurors as late as the deliberation stage by pointing out that there is a total of twelve persons participating in hearing witnesses, in deliberating on a verdict, in returning a verdict and in every other jury function during a trial.³

3 People v. Peete, 54 Cal.App. 333, 202 P. 51 (1921). See State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934).

The sixth draft dated Winter 1942 in its Rule 22 first bore the title "Trial Jurors". In the fifth draft the title had been "Trial Jurors, Peremptory Challenges; Alternate Jurors." Otherwise the Rule remained the same except that one sentence provided: "An alternate juror who does not replace a principal juror before the jury retires shall not retire with the jury." This was to make it clear that an alternate juror is not to retire to the jury room with the regular jury or when twelve regular jurors are in the jury room.

Rule 22 of the First Preliminary Draft, dated May, 1943, attained the final form as to the topic of examination. No change was made as to peremptory challenges. In connection with alternate jurors the expression "regular jurors" was substituted for "principal jurors". The language "Each side" was substituted for "Each party" as to peremptory challenges of alternate jurors.

A great many extensive comments were received by the Advisory Committee. With respect to subsection (a) on examination Judge W.E. Baker of the Northern District of West Virginia would add a sentence providing the court may require the defendant or the government to reduce to writing such supplemental questions as they desire propounded.⁴ Judge Gunnar H. Nordbye of the District of Minnesota thought that the rule should be redrafted to provide that the judge examine the jurors in the first instance and then limit the supplemental examination to such additional questions by the court or it may deem proper covering the questions submitted by the parties. Leaving the matter to the attorneys has been one of the chief causes for dissatisfaction with trial by jury as much time is taken and the questions are aimed to exclude desirable jurors. Federal judges should follow a uniform practice throughout the nation. Judge Merrill Otis of the Western District of Missouri thought that the Rule did not sufficiently stress that examination by the judge should be the usual practice. Chief Justice Taft had recommended that the judge conduct the examination. Judge John B. Sanborn of the Court of Appeals of the Eighth Circuit adopted a similar position⁵ as did Joseph T. Votava, United States Attorney for the District of Nebraska.⁶ On the other hand C.T. Graydon of Columbia, South Carolina would change the rule to provide that "the court shall permit the defendant." William Scott Stewart of Chicago thought that the attorney for the defendant should be permitted to conduct his examination "under a reasonable amount of control of the court."⁷ M. Neil Andrews, United States Attorney for the Northern District of Georgia, would have the parties submit questions in writing.⁸ Victor E. Anderson, United States Attorney for the District of Minnesota would confine examination to the courts so as to secure uniformity throughout the entire country.

4 1 Comments, Recommendations, and suggestions received concerning the proposed Federal Rules of Criminal Procedure 145 (1943).

5 Ibid. 146.

6 Ibid. 147.

7 Ibid. 148.

8 Ibid. Vol. II, p. 440 (1943).

With respect to Rule 22(b) on peremptory challenges, Judge Gunnar H. Nordbye would have the Rule spell out the method or order of exercising peremptory challenges.⁹ There is much confusion as to the order in which peremptory challenges shall be exercised, the number of challenges which should be taken at any one given time, or waived or reserved. He recommended the local rule adopted for the District of Minnesota. Judge Merrill Otis pointed out that in the Southern District of New York the party exercises his challenge against the individual juror openly. But in the Western District of Missouri the whole panel of 28 in a felony case is examined together on the voir dire, challenges for cause are exercised, and the the list of 28 names is submitted to each side for peremptory challenges.¹⁰ The Missouri method is better as the party can best determine, not from a study of a single juror but from a study of such juror in comparison with other jurors. The federal rule should spell this out. Judge John B. Sanborn would have the rule provide expressly, how the challenges are to be exercised so that counsel will not have to inquire of the court or the clerk. Joseph T. Votava pointed out that the government could not object to the equalization of challenges, but that the government had not felt in the past that it was seriously disadvantaged because the defendant had more challenges. F. B. McConoughy of Cincinnati, Ohio, thought joint defendants should have more challenges even though simultaneously the prosecution thereby received more challenges as under the Ohio statute. William Scott Stewart thought that joint defendants should be given more challenges.¹¹ The federal judges of Michigan thought that the number of peremptory challenges should be the same whether the offense is punishable for more than one year or less than one year.¹² Joseph F. Deeb, United States Attorney for the Western District of Michigan, adopted the same position.¹³ Thomas J. Morrissey would allow 20 challenges not only where the offense is punishable by death but also where it is punishable by imprisonment for life. James E. Ruffin of the Criminal Division of the Department of Justice would permit the judge in his discretion to increase the number of challenges where many defendants are jointly prosecuted and when the Court is seasonably requested to do so on notice to all the defendants and to the government.¹⁴ Likewise the Court should be authorized to allow such defendants to challenge separately. The court should also be allowed to increase the number of challenges of the government in such cases. The rule should spell out how the jury is impaneled in order to promote uniformity. Most federal courts follow the common law practice of impanelling the jury individually. But the Missouri method is the modern and better method. The Lawyers Club of Los Angeles thought that where there are joint defendants each separate defendant should have at least one separate and individual peremptory challenge in addition to the ten joint challenges allowed in the rule.¹⁵

9 Ibid. Vol. I, p. 149.

10 Ibid. 151.

11 Ibid. 152.

12 Ibid. Vol. II, p. 441.

13 Ibid. 442.

14 Ibid. 443.

15 Ibid. 443.

With respect to Rule 22(c) on alternate jurors Judge Alfred Barksdale of the Western District of Virginia thought that the rule was too narrow as to the grounds for substitution of an alternate juror. The judge should be able to excuse a juror for good cause shown.¹⁶ An example would be death of the brother of a juror. Another example is when a juror inadvertently overhears a conversation between the two defendants which made the juror feel that it would be improper to continue to serve. Judge Gunnar H. Nordbye pointed out that the rule did not contain a provision found in the present statute on alternate jurors that the alternate jurors should also be kept in custody with the other jurors.¹⁷ Alternate jurors should not be subject to intimidation or influence. Judge Merrill Otis pointed out that it was not clear when the alternates are to be selected, whether at the same time other jurors are selected or at a later time. The present law was that the regular jurors are selected and sworn and thereafter the alternates are selected. Judge J.W. Waring of the Eastern District of South Carolina would allow the trial court discretion in excusing regular jurors and replacing them with alternates. Professor Robert Kingsley of the University of Southern California Law School also favored such discretion.¹⁸ A California provision similar to the Rule had proved too narrow. Thomas J. Morrissey objected to using alternate jurors after the jury had commenced to deliberate.¹⁹ This should not be done without the consent of the defendant. Stuart H. Steinbrink made a similar objection. The members of the regular jury might bring such influence on a dissenter as to disable him and then require an alternate. The alternate may have been exposed to improper influences before he takes part as he does not previously sit in the jury room. James E. Ruffin would permit the court to discharge a juror of his own motion in any case where the interest of justice requires it.²⁰ Many courts do this in practice, and the rule should expressly permit it. Judge Merrill Otis thought that the provision that alternate jurors "shall have the same functions, powers, facilities, and privileges as the regular jurors" was open to correction although he did not make a concrete suggestion.

16 Ibid. Vol. I, p. 153.

17 Ibid. 154.

18 Ibid. 155.

19 Ibid. Vol. II, p. 444.

20 Ibid. 445.

The Second Preliminary Draft (eighth committee draft) dated February 1944, in its Rule 26 made no change as to examination and as to peremptory challenges. Subdivision (c) on alternate jurors attained its formal form. No provision was made for the use of alternate jurors for the first time at the stage of deliberation.

As in the case of the First Preliminary Draft there were many extensive comments on the Second Preliminary Draft. With respect to subdivision (a) on examination the Judicial Conference of the Second Circuit adopted a motion made by Judge Caffey to amend the Rule so as to place a greater duty on the judge to conduct the examination.²¹ Judge Robert C. Bell of the District of Minnesota made a similar criticism of the rule. But Archibald K. Gardner of the Court of Appeals of the Eighth Circuit was opposed. The judge passes on questions of law, and the jury on questions of fact during the trial. The trial lawyer must acquaint himself with both types of questions. He is better qualified than the trial judge to conduct the examination because he knows the issues not only as developed by the pleadings but as they will be developed by the evidence. At the time of examination the judge knows nothing of the issues except what he may gather from a casual look at the pleadings. The purpose of the examination is to inform the lawyer rather than the court of the state of mind of the prospective juror. Examination by the lawyer enables him to determine whether to exercise his peremptory challenge even though his examination may not disqualify the juror. That the examination is tedious should make no difference. The judge is likely to regard the examination as tedious because he knows so little about the case. The Committee on Criminal Law and Procedure of the Chicago Bar Association would make it mandatory upon the court to permit a reasonable individual examination of jurors by counsel.²² The Committees of the New York County Lawyers' Association on Federal Courts and Criminal Courts concluded that if the court conducts the examination, the parties should have the absolute right to supplement the examination by further inquiries directed to the jury by counsel.²³ If the court conducts the examination he addresses the jury as a whole; and none of the jurors answers. Jurors must be addressed individually to obtain information as to their intelligence or background. The rule does not save time as it involves relaying the supplemental questions to the jury through the court. Lloyd P. Stryker and the Hudson County Bar Association in New Jersey, and two members of the Special Committee of the Oregon State Bar would let the parties take part in the examination.²⁴ The Philadelphia Chapter of the Federal Bar Association would let the attorneys examine if the offense charged is punishable by death.²⁵ The Committee of the State Bar of California would let the parties participate in the examination as a matter of right. The proposed rule would result in lack of uniformity.

21 Ibid. Vol. III, p. 88 (1944).

22 Ibid. 90.

23 Ibid. 91.

24 Ibid. 91b.

25 Ibid. Vol. IV, p. 54 (1944).

With respect to subdivision (b) on peremptory challenges, Joseph T. Votava favored the Missouri plan of challenge.²⁶ The Judicial Conference of the Second Circuit adopted a number of motions offered by Judge Learned Hand.²⁷ The judge should have discretion to increase the challenges where there are several defendants. The judge should allocate challenges among the plural defendants in cases in which they do not agree on many themselves. The order of challenges as between the government and the defendants collectively should be spelled out in the rule. In misdemeanor cases each side should have only three challenges. The Bar Committee for the Western District of Tennessee thought that a defendant should always have more challenges than the government.²⁸ The jury comes to know the government attorneys better than the attorney for the defendant, as the latter appears only in part of the cases. Furthermore the defendant's attorney does not have the means to investigate the background of prospective jurors, and so must rely more on hunches than the government. The Committee on Criminal Law and Procedure of the Chicago Bar Association would give additional challenges to joint defendants. If the joint defendants cannot agree the challenges are to be apportioned equally, among them. The New York County Lawyers' Association Committees on Federal Courts and Criminal Courts thought that the existing statute giving ten challenges to the defendant and only six to the government had not been abused.²⁹ The Committee of the Seattle Bar Association thought that insufficient challenges were allowed defendants in capital cases. Francis E. Cross, Deputy Clerk for the United States District Court for the Southern District of California, recommended the order of challenges laid down by the Court of Appeals for the Ninth Circuit.³⁰

26 Ibid. Vol. III, p. 91a.

27 Ibid. 92.

28 Ibid. 93.

29 Ibid. 94.

30 Ibid. 95. See United States v. Avila, 76 F.2d 39 (9th Cir. 1935).

A defendant is entitled to exercise all of his peremptory challenges at any stage of the proceeding until the jury is finally sworn, and is entitled at all times to challenge from a full box of twelve jurors who have been previously examined and passed for cause. He recommended Rule 4 of his district which assured that the government would have challenges over the entire stage of challenging even though the government had six and the defendant had ten challenges. James B. McNally, United States Attorney for the Southern District of New York, would spell out the order of challenges.³¹ Failure to exercise a challenge in the prescribed order should be treated as a waiver thereof. The proposed federal rule is ambiguous in several respects. It does not indicate which side shall commence challenging. It does not indicate whether or not each side shall alternate. It does not indicate whether the parties shall exercise all their challenges at one time and before the other side commences. It does not indicate whether counsel are entitled to exercise their challenges from a full box of jurors who have been duly and previously qualified and passed for cause. It does not indicate whether the right of challenge shall remain open as long as there are peremptory challenges remaining, up to the time the jury is sworn. It does not indicate whether the passing or waiver of a challenge is equivalent to exercising the challenge. John E. Byrne of the Bar Committee of the Seventh Circuit thought that where there are joint defendants each defendant would have at least two challenges.³² The ringleaders in a conspiracy are likely to dominate the defense. Moreover government employees may serve on the jury. Ralph F. Leseman of the same committee thought that if joint defendants are given more challenges the government should also be given more.³³ Lloyd P. Stryker proposed that whether the offense is treason or a capital offense the defendant should have 20 and the government six challenges. As to all other offenses each party shall have six. If there are several defendants each party should have at least two challenges. The Committee of the Bar Association of the District of Columbia was opposed to reducing from ten to six the number of challenges of the defendant in felony cases and favored more challenges for joint defendants.³⁴ Harry C. Blanton, United States Attorney for the Eastern District of Missouri, would have the rule provide as to the order of challenges.³⁵ In some districts the government must exhaust all its challenges before the defendant has to exhaust any of his. They should be required to alternate.

31 Ibid. 97.

32 Ibid. 100.

33 Ibid. 100a.

34 Ibid. Vol. IV, p. 55.

35 Ibid. 56.

With respect to subdivision (c) on alternate jurors the special committee of the Los Angeles Bar Association would allow the defendant two peremptory challenges if one or two alternate jurors are selected and four challenges instead of two if three or four alternate jurors are selected.³⁶ Judge Patrick T. Stone of the Western District of Wisconsin would allow alternate jurors to come in during the jury deliberations.³⁷ It is not sensible to keep alternate jurors during a long trial, and then discharge them before the work of the jury is completed.

36 Ibid. 57.

37 Ibid. Vol. III, p. 101.

The Final Report of the Advisory Committee dated June 1944 (ninth committee draft) in its Rule 26(b) attained its final form as to the topic of peremptory challenges. If the offense was punishable by imprisonment for more than one year the government was to have six challenges but the defendant or defendants jointly were to have ten. If there was more than one defendant the court might allow additional challenges. The Supreme Court adopted this draft without any change. As two Rules suggested by the Committee were rejected by the Court the Rule became Rule 24.

II. FEDERAL PROCEDURE PRIOR TO RULE 24

Selection of Jurors

The original judiciary act³⁸ of September 24, 1789 provided as to jurors: "Jurors in all cases to serve in the courts of the United States shall be designated by lot or otherwise in each State respectively according to the mode of forming juries therein now practiced, so far as the laws of the same shall render such designation practicable by the courts or marshals of the United States; and the jurors shall have the same qualifications as are requisite for jurors by the laws of the state of which they are citizens, to serve in the highest courts of law of such States, and shall be returned as there shall be occasion for them, from such parts of the district from time to time as the court shall direct, so as shall be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly to burden the citizens of any part of the district with such services. And writs of venire facias, when directed by the court, shall issue from the clerks' office, and shall be served by the marshal in his proper person, or by his deputy, or in case the marshal or his deputy is not an indifferent person, or is interested in the event of the cause, by such fit person as the court shall especially appoint for that purpose."

38 1 Stat. 88.

But this statute referred only to the state practice at the time of its passage. The Act³⁹ of 1840 included the practice then existing or thereafter introduced in the states.⁴⁰ The federal courts were not bound rigidly to the details of state practice. They could act by general standing rule, or by special order in a particular case. They were not required to use state officers. They could determine the number of jurors to be summoned. They could as in New England make use of state officers.

39 5 Stat. 394.

40 United States v. Richardson, 28 Fed. 61, 68 (C.C.D.Maine 1886); United States v. Stowell, 27 Fed. Cas. 1350, 1355, case no. 16,409 (C.C. D.Mass. 1854).

The Supreme Court pointed out in 1894 that by the Act⁴¹ of June 30, 1879 all jurors, "including those summoned during the session of the court, are required to be drawn from a box containing at the time of each drawing the names of not less than 300 persons, possessing the qualifications prescribed in § 800 of the Revised Statutes, which names shall have been placed in the box by the clerk of court and a commissioner appointed by the judge, who shall be a citizen of good standing, residing in the district in which such court is held, and a well-known member of the principal political party in the district in which the court is held opposing that to which the clerk may belong, the clerk and the commissioner each to place one name in said box alternately, without reference to party affiliations. That act further provides that nothing contained in it shall be construed to prevent any judge from ordering the names of jurors to be drawn from the boxes used by the state authorities in selecting juries in the highest courts of the state, and that `no person shall serve as a petit juror more than one term in any one year, and all juries to serve in courts after the passage of this act shall be drawn in conformity herewith: provided, that no citizen possessing all other qualifications which are or may be prescribed by law shall be designated for service as grand or petit juror * * * on account of race, color, or previous condition of servitude.'"⁴²

41 21 Stat. 43, 44.

42 Pointer v. United States, 151 U.S. 396, 407, 14 S.Ct. 410, 414, 38 L.Ed. 208 (1896).

In 1937 a Court of Appeals pointed out that under the federal statute "the persons who are summoned as jurors must be drawn publicly from a box containing at least 300 names."⁴³

43 Albizu v. United States, 88 F. 2d 138, 140 (1st Cir. 1937) cert. denied 301 U.S. 707, 57 S.Ct. 940, 81 L.Ed. 1361. See also Wilson v. United States, 104 F.2d 81 (5th Cir. 1939) cert. denied 308 U.S. 574, 60 S.Ct. 89, 84 L.Ed. 481.

The Supreme Court stated in 1894: "By section 800 of the Revised Statute of the United States it is provided, substantially, in the words of the act of July 20, 1840 ( 55 Stat. 394, c. 47,) that jurors to serve in the courts of the United States * * * shall have the same qualifications * * * and be entitled to the same exemptions, as jurors of the highest courts of law in the respective states may have, and be entitled to at the time when such jurors for service in the courts of the United States are summoned; and they are required to be `designated by ballot, lot, or otherwise, according to the mode of forming such juries then practiced in such state court, so far as such mode may be practicable by the courts of the United States or the officers thereof. And for this purpose the said courts may, by rule or order, conform the designation and impaneling of juries, in substance, to the laws and usages relating to juries in the State courts, from time to time in such state."⁴⁴

44 Pointer v. United States, 151 U.S. 396, 406, 14 S.Ct. 410, 414, 38 L. Ed. 208 (1894).

The 29th section of the Judiciary Act, ⁴⁵ which refers the federal courts to the state laws for certain regulations as to juries, applies only to the mode of designating the jury by lot or otherwise, and to the qualifications of jurors. It does not refer to state law for the purpose of fixing the number of jurors to be summoned.⁴⁶ Circuit Justice Patterson stated: "Since, therefore, the act of congress does not itself fix the number of jurors, nor expressly adopt any state rule for the purpose, it is a necessary consequence, that the subject must depend on the common law; and by the common law, the court may direct any number of jurors to be summoned, on a consideration of all the circumstances under which the venire is issued."⁴⁷

45 1 Stat. 88.

46 United States v. Insurgents, 26 Fed.Cas. 499, 513, case no. 15,443 (C.C.D.Pa. 1795).

47 Ibid. 26 Fed.Cas. 514. In this case of treason, 48 jurors were summoned. In accord see United States v. Dow, 25 Fed.Cas. 901, case no. 14,990 (C.C.Md. 1840).

A venire for trial jurors issued with the sanction of the court has the same effect as if an express order of the court had been annexed thereto.⁴⁸ A verbal order for the issue of a venire is sufficient.⁴⁹

48 Case of Fries, 9 Fed.Cas. 826, 1922, case no. 5,126 (C.C.E.D.Pa. 1790); United States v. Richardson, 28 Fed. 61, 69 (C.C.D.Maine 1886).

49 United States v. Reed, 27 Fed. Cas. 727, 733, case no. 16,134 (C.C.D. N.Y. 1852); United States v. Richardson, 28 Fed. 61, 69 (C.C.D.Maine 1886).

Judge Learned Hand has pointed out: "Section 29 of the first judiciary act also prescribed the same procedure for securing juries that then existed in England: "writs of venire facias when directed by the court shall issue from the clerk's office, and shall be served and returned by the marshal in his proper person, or by his deputy."⁵⁰ The statute did not provide how the marshal should select those where names be returned. But a challenge to the array was available.

50 United States v. Dennis, 183 F. 2d 201, 220 (2d Cir. 1950).

Under the statute⁵¹ when no petit jury is available the marshal shall by order of the court, return jurymen from the bystanders sufficient to complete the panel. This was not repealed by the Act⁵² of 1879 as to the mode of drawing juries.⁵³ Possibly there is inherent power to summon talesmen.⁵⁴ The summoning of talesmen may occur before the case has been called for trial, ⁵⁵ or after the case has been called for trial.⁵⁶ The bystanders need not actually be in the court room when summoned. They become bystanders when they later appear in Court. If the marshal is shown to have an interest the court may appoint an indifferent person to summon bystanders.⁵⁷ It makes no difference that the bystanders have presently made it known to the marshal that they are available for service.⁵⁸

51 Rev. Stat. § 804.

52 21 Stat. 43.

53 United States v. Rose, 6 Fed. 136, 137 (C.C.S.D.Ohio 1881); Lovejoy v. United States, 128 U.S. 171, 173, 9 S.Ct. 57, 32 L.Ed. 389 (1888); St. Clair v. United States, 154 U.S. 134, 146, 14 S.Ct. 1002, 38 L.Ed. 936 (1894).

54 United States v. Hill, 26 Fed.Cas. 315, 317, case no. 15,364 (C.C.D.Va. 1809); Clawson v. United States, 114 U.S. 477, 487, 5 S.Ct. 949, 29 L.Ed. 179 (1884). But the original Judiciary Act provided for talesmen. 1 Stat. 88.

55 Cravens v. United States, 62 F. 2d 261, 269 (8th Cir. 1932) cert. denied 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481.

56 United States v. Loughery, 26 Fed.Cas. 998, case no. 15,631 (E.D.N. Y. 1876).

57 Johnson v. United States, 247 Fed. 92, 95 (9th Cir. 1917). A new trial was granted.

58 Cravens v. United States, 62 F. 2d 261, 271 (8th Cir. 1932) cert. denied 289 U.S. 733, 53 S.Ct. 594, 77 L.Ed. 1481.

List of Jurors

The constitutional right of a defendant to be informed of the nature and cause of the accusation against him does not include a right to a list of the jurors.⁵⁹

59 Brown v. Johnston, 126 F.2d 727, 728 (9th Cir. 1942) cert. denied 317 U.S. 627, 63 S.Ct. 39, 87 L.Ed. 507.

Under the statute⁶⁰ of 1790 which requires that in treason cases a list of the jurors shall be delivered to the defendant three days before the trial and in other capital cases two days before the trial, the word "trial" means the trying of the case by the jury and not the arraignment and pleading preparatory to such trial.⁶¹ The trial commences when the jury is made up or completed and sworn.⁶² The Sixth Amendment in providing the right to a speedy and public trial by jury uses the word "trial" in the same sense.⁶³ A single case has held that in capital cases the list of jurors must be delivered two days before arraignment.⁶⁴ The statutory requirement is mandatory.⁶⁵ But it may be waived.⁶⁶

60 1 Stat. 118.

61 United States v. Curtis, 25 Fed. Cas. 726, 727, case no. 14,905 (C.C. D.Mass. 1826).

62 United States v. Curtis, 25 Fed. Cas. 726, 728, case no. 14,905 (C.C. D.Mass. 1826); Gordon v. Scott, 10 Fed.Cas. 816, 817, case no. 5,620 (W. D.Pa. 1868); United States v. Neverson, 1 Mackey 152, 162 (D.C. 1880); Meyer Hay v. Norton Calhoun, 9 Fed. 433, 437 (C.C.D.Ky. 1881). But it is said that a trial commences when impanelling begins in Hopt v. People of Territory of Utah, 110 U.S. 574, 578, 4 S.Ct. 202, 28 L.Ed. 262 (1887); Lewis v. United States, 146 U.S. 370, 373, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

63 United States v. Curtis, 25 Fed. Cas. 726, 728, case no. 14,905 (C.C. D.Mass. 1826).

64 United States v. Dow, 25 Fed. Cas. 901, case no. 14,990 (C.C.D. Md. 1840). Opinion was by Chief Justice Taney.

65 Logan v. United States, 144 U. S. 263, 303 308, 12 S.Ct. 617, 36 L.Ed. 429 (1892).

66 Aldridge v. United States, 60 App. D.C. 45, 47 F.2d 407, 409 (D.C. 1931).

In cases not capital the defendant is not entitled to the jury list before trial as a matter of right.⁶⁷ It is sometimes given the defendant anyhow.⁶⁸ A district court may prohibit by rule of court the furnishing of a list of jurors to the defendant more than two days before trial when the offense is not capital.⁶⁹

67 United States v. Van Duzee, 140 U.S. 169, 173, 11 S.Ct. 758, 35 L. Ed. 399 (1891); United States v. Wood, 28 Fed.Cas. 754, 755, case no. 16,756 (C.C.E.D. 1818); Shelp v. United States, 81 Fed. 694, 697 (9th Cir. 1897).

68 United States v. Williams, 28 Fed.Cas. 646, case no. 16,709 (C.C.D. C. 1804); Wilson v. United States, 104 F.2d 81, 82 (5th Cir. 1939) cert. denied 308 U.S. 574, 60 S.Ct. 89, 84 L.Ed. 481.

69 Hendrikson v. United States, 249 Fed. 34 (4th Cir. 1918). See also Bailey v. United States, 53 F.2d 982, 983 (5th Cir. 1931); Wilson v. United States, 104 F.2d 81, 82 (5th Cir. 1939) cert. denied 308 U.S. 574, 60 S.Ct. 89, 84 L.Ed. 481.

In the list of jurors furnished to the defendant, the designation of their place of abode should state the township in which they live.⁷⁰ A mere description of their residence as being within the state is insufficient. The occupations of the jurors need not be stated.

70 United States v. Insurgents, 26 Fed.Cas. 499, 513, case no. 15,443 (C.C.D.Pa. 1795).

So long as the list of jurors is served on time, the list may be served by piecemeal.⁷¹ The list need only include the names of jurors composing the regular panel in attendance at the opening of the trial; and not jurors brought in a special venire to complete the jury.⁷² The defendant is on an even plane with the government as the government will not know the personnel of a new venire any more than the defendant. The list need only include the list of jurors summoned for criminal cases, even though such list is later exhausted and jurors are called from the civil list.⁷³

71 Pointer v. United States, 151 U. S. 396, 398, 14 S.Ct. 410, 38 L.Ed. 208 (1894).

72 Stewart v. United States, 211 Fed. 41, 46 (9th Cir. 1914).

73 Eagles v. United States, 58 App. D.C. 122, 25 F.2d 546, 548 (D.C. Cir. 1928) cert. denied 277 U.S. 609, 48 S.Ct. 603, 72 L.Ed. 1013 (D.C. Cir. 1933).

Challenge to the Array

Chief Justice Hughes has stated: "Challenges at common law were to the array, that is, with respect to the constitution of the panel, or to the polls, for the disqualification of a juror. Challenges to the polls were either principal or to the favor, the former being upon grounds of absolute disqualification, the latter for actual bias."⁷⁴

74 Wood v. United States, 299 U.S. 123, 134, 57 S.Ct. 177, 180, 81 L. Ed. 78 (1936).

Proposed challenges to the array, or the whole jury at once, are always for partiality in the sheriff, and not in the jurors.⁷⁵ Such challenges are to be determined by the court. But where challenges are for favor, in the particular jurors, they are to be determined by triers sworn by the court. The fact that a partial juror has been returned is no reason for inferring partiality in the sheriff, so as to furnish ground of challenge to the array.

75 United States v. Callender, 25 Fed.Cas. 239, 244, case no. 14,709 (C.C.D.Va. 1800). Challenges to the array are referred to in the dissenting opinion in Lewis v. United States, 146 U.S. 370, 380, 383, 13 S. Ct. 136, 36 L.Ed. 1011 (1892).

Under the Act of 1840 prospective jurors were to be selected according to the state practice as near as may be. If not, the defendant could object to the jury panel selected, and have a continuance until a proper jury panel was selected.⁷⁶ The federal court adopted a new rule so providing: The federal clerk and marshal were to select the jurors from the state at large previous to each term. In 1873 a challenge to the array of jurors was made and denied as it was found that the Act of Congress and the state law had been complied with.⁷⁷ State officials need not be used. A federal rule of Court could provide for the selection of 500 names, as the statutes of 1789 and 1840 did not fix any number.

76 United States v. Woodruff, 28 Fed.Cas. 761, case no. 16,758 (C.C. D.Ill. 1846). See also United States v. Wilson, 28 Fed.Cas. 725, case no. 16,737 (C.C.N.D.Ohio 1855).

77 United States v. Collins, 25 Fed. Cas. 545, 549, 551, case no. 14,837 (C.C.S.D. 1873).

The duty of selecting petit jurors "must be performed by the persons appointed to make the selection, and cannot be delegated by them to another or others."⁷⁸ The clerk of court cannot delegate to his deputies.

78 Dunn v. United States, 238 Fed. 508, 511 (5th Cir. 1917).

In 1877 a challenge to the array of petit jurors was made on the ground that the list of prospective jurors to be summoned was not made by the proper officials.⁷⁹ In 1915 a challenge to the panel was sustained where the statute requiring selection of names to be made by the commissioner and the clerk was not followed.⁸⁰ An Assistant United States Attorney may not select or suggest names. Even though the defendant might not be prejudiced, it could not be known whether or not they would be prejudiced. Trial of the challenge was by the trial judge. If there was in fact tampering with a panel of prospective jurors, the panel should be discharged.⁸¹ In a state court case the Supreme Court has said that even when persons liable to jury duty are excluded, no challenge to the array lies if enough proper jurors are obtained.⁸²

79 United States v. Butler, 25 Fed. Cas. 213, 215, 217, case no. 14,700 (C.C.D.S.C. 1877).

80 United States v. Murphy, 224 Fed. 554 (N.D.N.Y. 1915).

81 Hart v. United States, 240 Fed. 911, 919 (2d Cir. 1917).

82 Rawlins v. State of Georgia, 201 U.S. 638, 640, 26 S.Ct. 560, 50 L.Ed. 899, 5 Ann.Cas. 783 (1906). Citing People v. Jewett, 3 Wend. (N.Y.) 314, 320 (1829). (Masons excluded).

A challenge to the array has been made on the ground that the jurors were not "publicly drawn" as required by statute.⁸³ But the court found that they were publicly drawn as no one was excluded from the room.

83 Wilson v. United States, 104 F. 2d 81 (5th Cir. 1939) cert. denied 308 U.S. 574, 60 S.Ct. 89, 84 L. Ed. 481.

Motion in arrest of judgment does not lie for improper summons of talesmen who are not bystanders.⁸⁴ The objection should have been made by challenge to the array.

84 United States v. Loughery, 26 Fed.Cas. 998, 999, case no. 15,631 (C.C.E.D.N.Y. 1876).

It has been held that a challenge to the array should be upheld where there is secret preliminary questioning of prospective jurors.⁸⁵ Each juror when summoned had received from the clerk with the summons a questionnaire asking his age, religion, occupation, family, previous service as a juror, and whether he favored prohibition. If the attorneys for the defendants had sent out such a questionnaire they would have been open to severe criticism. But proper questionnaires might be useful and might shorten the voir dire.⁸⁶ They might be useful at an earlier stage in the criminal proceedings prior to the summoning for determining qualifications of persons for the jury list.

85 Gideon v. United States, 52 F.2d 427, 429 (8th Cir. 1931) noted 30 Minn. L. Rev. 625. 17 Iowa L. Rev. 422. The marshal and not the clerk should send out the summons to jurors.

86 17 Iowa L. Rev. 422 (1932), 30 Mich. L. Rev. 625 (1932).

It is not ground of challenge to the array that the jury commissioner sent out questionnaires to prospective jurors not yet qualified and not yet selected for service.⁸⁷ The questionnaire sought the age, occupation, full name and address, and whether there was any reason for seeking excuse if drawn. The commissioner had a duty to make inquiry before placing names in the box. The information gained would be as beneficial to the defendant as to the government.

87 Wilson v. United States, 104 F. 2d 81, 82 (5th Cir. 1939) cert. denied 308 U.S. 574, 60 S.Ct. 89, 84 L. Ed. 481. See also United States v. McClure, 4 F.Supp. 668, 671 (E.D. Pa. 1933).

Although a challenge to the array on the ground that the prospective jurors were not apportioned among all counties in the district and were not summoned by the marshal according to law, was denied, a court of appeals will not reverse a conviction where no prejudice resulted and the defendant did not exhaust his peremptory challenges.⁸⁸ No statute required apportionment of jurors among counties. Although the method of summoning may not have been strictly followed, the jurors did appear. The trial judge may overrule a motion to quash a petit jury panel on the grant that the panel excluded one county when it appeared that sinister forces made it difficult to obtain impartial jurors from such county.⁸⁹ A motion in arrest of judgment or a motion for new trial would not lie because of such overruling. It is not ground for challenge to the array that in a prosecution for conspiracy to make a fraudulent vote count in a congressional election, there was an exclusion of residents of the county in which the crime was committed.⁹⁰

88 Needham v. United States, 73 F. 2d 1, 2 (7th Cir. 1934) cert. denied 294 U.S. 705, 55 S.Ct. 351, 79 L.Ed. 1241.

89 United States v. Clark, 19 F. Supp. 972, 973 (W.D.Mo. 1937).

90 Walker v. United States, 93 F. 2d 383, 391 (8th Cir. 1937) cert. denied 303 U.S. 644, 58 S.Ct. 642, 82 L.Ed. 1103. See also Spencer v. United States, 169 Fed. 562, 565 (8th Cir. 1909); Myers v. United States, 15 F.2d 977, 979 (8th Cir. 1926); Jarl v. United States, 19 F.2d 891, 894 (8th Cir. 1927); United States v. Peuschel, 46 Fed. 642, 646 (S.D. Cal. 1902); United States v. Wan Lee, 44 Fed. 707 (D.C.Wash. 1890).

It has been held not to violate due process for states to exclude certain classes, such as lawyers, doctors, ministers, and railroad engineers from service on the petit jury.⁹¹ Such exclusions may be based on the ground that it is for the good of the community that their regular work should not be interrupted.

91 Rawlins v. State of Georgia, 201 U.S. 638, 26 S.Ct. 560, 50 L.Ed. 899, 5 Ann.Cas. 783 (1906), affirming 124 Ga. 31, 52 S.E. 1 (1905).

When in a state where women are eligible for jury service under local law under even a merely directory law, but they are excluded intentionally and systematically from the federal jury panel the Supreme Court will correct the error through its supervisory power.⁹² The upper court will remand for a new trial.⁹³ The defendant did not have to show prejudice. One defendant was a woman and the other a man. Yet in states where women could not serve on state juries they need not serve on federal. It should be noted that the defendants challenged the array at the appropriate time. The case does not hold that if there had been no challenge to the array a new trial would be granted. Probably the doctrine of waiver would then apply.

92 Ballard v. United States, 329 U. S. 187, 190, 195, 67 S.Ct. 261, 91 L. Ed. 181 (1946) noted 28 Boston U. L. Rev. 55, 25 N.C. L. Rev. 334, 20 S.Cal. L. Rev. 374, 33 Va. L. Rev. 519. The decision was five to four.

93 Where as here the grand jury panel was also similarly improper, the court will dismiss the indictment. Then after a new indictment there could be a trial under it.

In a case in which a corporation is a defendant in a case involving difficult commercial questions a court will sustain a challenge to the array where only 3 out of 50 jurors in the panel reside in Cook County, Illinois and 6 per cent of the jurors drawn are farmers or retired farmers.⁹⁴

94 United States v. Standard Oil Co., 170 Fed. 988, 993 (N.D.Ill. 1909).

The purposeful exclusion from the trial jury of members of the wage-earning, laboring class, otherwise qualified, merely because they belong to that class is unlawful discrimination, but the exclusion must be intentional and because they are of that class.⁹⁵ The mere fact that there are no wage earners on the jury trying the defendant does not show discrimination. The defendant is entitled to offer evidence to show such discrimination. If he offers no proof, his contention will be overruled. The issue is one of fact.

95 Mamaux v. United States, 264 Fed. 816, 818 (6th Cir. 1920). The defendant failed to challenge the array of petit jurors.

A challenge to the array will not lie merely because unemployed persons were not on the jury list.⁹⁶ Wage earners were not excluded, but merely hangers-on and loafers. In 1937 a Court of Appeals held that where the court clerk and jury commissioner requested that reliable persons throughout the district suggest for petit jurors names of those who were "men of business affairs", selection of jurors, made in part from suggested names, was not improper, as against the contention that the officers excluded those of the wage-earning class and unemployed persons.⁹⁷ The court pointed out that this had been practice for 20 years. The court asserted that "men of business affairs" is not synonymous with "business men."

96 United States v. Shannabarger, 19 F.Supp. 975, 976 (N.D.Mo. 1937), reversed on other grounds, Cartello v. United States, 93 Fed.2d 412 (8th Cir. 1937).

97 Walker v. United States, 93 F. 2d 383, 391 (8th Cir. 1937) cert. denied 303 U.S. 644, 58 S.Ct. 642, 82 L.Ed. 1103.

Justice Murphy, speaking for the Supreme Court has stated: "Our notions of what a proper jury is have developed in harmony with our basic concepts of a democratic society and a representative government. For `it is part of the established tradition in the use of juries as instruments of justice that the jury be a body representative of the community.' Smith v. Texas, 311 U.S. 128, 130, 61 S.Ct. 164, 165, 85 L.Ed. 84.

"Jurors in a federal court are to have the qualifications of those in the highest court of the State, and they are to be selected by the clerk of the court and a jury commissioner. * * * This duty of selection may not be delegated. * * * 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 `body 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 juries may be called. But they must not allow the desire for competent jurors to lead them into selections which do not comport with the concept of the jury as a cross-section of the community. Tendencies, no matter how slight, towards the selection of jurors by any method other than a process which will insure a trial by a representative group are undermining processes weakening the institution of jury trial, and should be sturdily resisted."⁹⁸

98 Glasser v. United States, 315 U. S. 60, 85-86, 62 S.Ct. 457, 472, 86 L.Ed. 680 (1942).

That no Negro jurors were drawn from six counties of a district predominately Negro in population is not a ground for quashing the venire drawn to try two Negroes, where the statute for drawing of trial jury panels was fair on its face; and no practice of systematic exclusion of Negroes was established and many Negroes were on the jury list from the district.⁹⁹ The Negro defendant is not entitled to at least one Negro on the trial jury.¹⁰⁰

99 Beckett v. United States, 84 F. 2d 731, 732 (6th Cir. 1936). The case arose in Tennessee.

100 Younge v. United States, 242 Fed. 788, 792 (4th Cir. 1917). The case arose in West Virginia.

In a case arising in Hawaii it was held that the mere fact that the trial jurors drawn from the jury list did not contain percentages of persons of nativity corresponding with the percentages of nativity of the citizenry in the court's jurisdiction did not show that the list itself violated the jury statute.¹⁰¹ A motion to quash the venire would not lie. If the jury list itself was discriminatory due process of law would be violated.

101 Wong Yim v. United States, 118 F.2d 667, 668 (9th Cir. 1941) cert denied 313 U.S. 589, 61 S.Ct. 1112, 85 L.Ed. 1544. A Chinese defendant was involved. Chinese were 12% of the population. The panel of 35 jurors contained one of Chinese ancestry.

In 1943 a Court of Appeals stated as to discrimination against Negroes on jury panels:

"A salutary warning on this subject was given to the courts on September 8, 1942, in the Report to the Conference of the Chief Justice with the Senior Circuit Judges of the United States by a Committee on Selection of Jurors, composed of District Judges of the United States. The report states (pp. 18, 20):

"In each district where there is a large Negro or other minority racial group the problem of selecting a suitable number of qualified representatives of that race is one which should receive the careful consideration of the clerk and jury commissioner. The Constitution, together with statutes and decisions, make it evident that anything that amounts to a conscious and deliberate exclusion from jury lists of representatives of any class of persons solely on account of race, color, economic, or social status is improper, and may be unlawful. The selection of qualified persons to give adequate representation to certain groups may in some districts present difficulties. Nevertheless, no jury panel can be regarded as secure from challenge unless there has been an earnest effort on the part of the court, the clerk, and the jury commissioner to assure that there is no discrimination against these groups."¹⁰²

102 United States ex rel. Jackson v. Brady, 133 F.2d 476, 479 (4th Cir. 1943) cert. denied 319 U.S. 746, 63 S.Ct. 1029, 87 L.Ed. 1702. A state court case was involved. See 26 F. R.D. 426, 429 (1961).

In a federal civil case the plaintiff challenged the array of the entire jury panel because the officers making the jury list first excluded all persons working for a daily wage. The motion was denied.¹⁰³ The Supreme Court in a five to two opinion reversed.¹⁰⁴ It made no difference that the exclusion was not for corrupt reasons, but for administrative expediency; nor that their wives could serve; nor that weekly and monthly wage earners were not excluded, nor that prejudice from such exclusion was not proved. The Supreme Court exercised its supervisory power over the federal courts, and did not lay down any constitutional principle. This was the first case in which economic discrimination was proved. Justice Murphy speaking for the Supreme Court stated: "The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community."¹⁰⁵

103 Thiel v. Southern Pac. Co., 149 F.2d 783, 786 (9th Cir. 1945).

104 Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181, 166 A.L.R. 1412 noted 35 Calif. L. Rev. 142, 21 Calif.St.B.J. 352, 59 Harv. L. Rev. 1167, 45 Mich. L. Rev. 216, 22 Ind.L.J. 97, 20 Temple L.Q. 154, 25 Tex. L. Rev. 171, 21 Tul.L. Rev. 116.

105 Thiel v. Southern Pac. Co., 328 U.S. 217, 220, 66 S.Ct. 984, 90 L.Ed. 1181.

Where jurors are discharged in open court for failure to convict, this is a ground for challenge to the entire panel, and also ground for reversal of a subsequent conviction by jurors of that panel, who had knowledge of such action.¹⁰⁶ This is one of the rare situations in which challenge to the array may be made after the voir dire examination.

106 McLendon v. United States, 2 F.2d 660, 663 (6th Cir. 1924). The case was quoted favorably in Filippelli v. United States, 6 F.2d 121, 124 (9th Cir. 1925). As to late challenge to the array see 27 Yale L. J. 565 (1918).

On challenges to the array and panel because members thereof had participated in certain other trials and had heard the trial judge's improper statement on discharging a juror from further service, proof of the matters contained therein must be made or offered.¹⁰⁷

107 Wolf v. United States, 292 Fed. 673, 678 (6th Cir. 1923); Hindman v. United States, 292 Fed. 679, 682 (6th Cir. 1923).

A defendant who moves for a new trial on the ground that all women not members of the Illinois League of Women Voters were excluded from the jury panel must support his motion by the introduction of or offer of distinct evidence.¹⁰⁸ A formal affidavit though not controverted is not enough, in the absence of a stipulation that it be accepted as proof. But if the defendant had proved his case, the court held that a new trial should have been granted.

108 Glasser v. United States, 315 U.S. 60, 83, 87, 62 S.Ct. 457, 86 L. Ed. 680 (1942). For the case below see United States v. Glasser, 116 F. 2d 690, 705 (7th Cir. 1940).

May a defendant complain of exclusions from the jury list when he is not a member of the excluded class? Several cases have held that he may. A man's complaint that women were intentionally excluded was successful.¹⁰⁹ One not a daily wage earner may claim that daily wage earners were not on the jury list.¹¹⁰ Now and then contrary suggestions have been made.¹¹¹

109 Glasser v. United States, 315 U.S. 60, 82, 62 S.Ct. 457, 86 L.Ed. 680 (1942); United States v. Roemig, 52 F.Supp. 857, (N.D. Iowa 1943); Ballard v. United States, 329 U.S. 187, 67 S.Ct. 261, 91 L.Ed. 181 (1946). See Scott, "The Supreme Court's Control over State and Federal Criminal Juries," 34 Iowa L. Rev. 577, 603 (1949).

110 Thiel v. Southern Pac. Co., 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946). See 59 Harv. L. Rev. 1167, 1169 (1946).

111 Wuichet v. United States, 8 F. 2d 561, 563 (6th Cir. 1925) cert. denied 270 U.S. 651, 46 S.Ct. 351, 70 L.Ed. 781.

A challenge to the array is not waived by the exercise of challenges for cause and peremptory challenges.¹¹² Although this was a holding by the Supreme Court, subsequently a circuit court held that a challenge to the polls waives a challenge to the array.¹¹³ Objections to the manner and mode of drawing and impaneling the trial jury should be presented as grounds of challenge either to the entire array or the objectional juror, and not having been made prior to, were cured by verdict.¹¹⁴ If the jury was illegally selected, the defendant must challenge the array before trial.¹¹⁵ Such challenge is waived when it is not made before the jury is sworn. A motion for new trial will not be granted. In a case involving a state court criminal defendant seeking federal habeas corpus, a Court of Appeals has held that as to a contention that no Negroes were on the jury panel: "The right to challenge the panel is a right that may be waived and is waived if not seasonably presented. Such rights, if waived during trial may not be availed of by attack in a collateral proceeding."¹¹⁶

112 Clinton v. Englebrecht, 13 Wall. (80 U.S.) 434, 440, 20 L.Ed. 659 (1871). See also People v. McKay, 18 Johnson (N.Y.) 212, 217, which is somewhat unclear. See 27 Yale L.J. 565 (1910).

113 United States v. Loughery, 26 Fed.Cas. 998, 1000, case no. 15,631 (C.C.E.D.N.Y. 1876).

114 Turner v. United States, 66 Fed. 280, 285 (5th Cir. 1895).

115 United States v. Peterson, 24 F. Supp. 470 (E.D.Pa. 1938).

116 Carruthers v. Reed, 102 F.2d 933, 939 (8th Cir. 1939).

Voir Dire Examination

At common law the voir dire examination took place only after a challenge for cause.¹¹⁷ Under present day practice it occurs before challenge.

117 United States v. Johnson, 26 Fed.Cas. 624, 625, case no. 15,484 (C. C.D.C. 1806); Queen v. Stewart, 1 Cox C.C. 174 (1845). See note, 31 Yale L.J. 514 (1922).

It was the practice in the Western District of Tennessee to swear on the first day of the term persons summoned as prospective petit jurors, to make true answers as to their qualifications as jurors.¹¹⁸ Later when such jurors had been impanelled they were sworn to try the issues in the case.¹¹⁹

118 Clough v. United States, 55 Fed. 921, 926 (N.D.Tenn. 1893).

119 Ibid. See also Walker v. United States, 13 F.2d 844 (6th Cir. 1926) cert. denied 273 U.S. 726, 47 S.Ct. 237, 71 L.Ed. 860.

The Supreme Court has held in a state court case that the defendant may waive his right to be present during the examination of a juror who was after examination discharged.¹²⁰ Due process of law is not violated.

120 Howard v. Commonwealth of Kentucky, 200 U.S. 164, 26 S.Ct. 189, 50 L.Ed. 421 (1905). Noted 6 Col. L. Rev. 357. Under the state law the trial did not begin until the jury was sworn. See 5 Minn. L. Rev. 153 (1920). But in Hopt v. Utah, 110 U.S. 574, 4 S.Ct. 202, 28 L.Ed. 262 (1884), trial was held under the state statute to commence with impaneling of the jury.

Prospective jurors who are ill have been excused from jury service.¹²¹ An attorney who practices before the court may claim a privilege to be excused from jury service unless the defendant wished to retain him.¹²²

121 United States v. Burr, 25 Fed. Cas. 55, 79, 85, 87, case no. 14,693 (C.C.D.Va. 1807).

122 United States v. Burr, 25 Fed. Cas. 55, 79, 82, case no. 14,693 (C. C.D.Va. 1807). The defendant did not require service on the jury.

In 1893 a court pointed out that the voir dire examination "is often conducted in great part by counsel whose experience has taught them exactly what are the crucial points involved in the inquiry."¹²³ But in 1895 the Supreme Court made it clear that the trial judge supervised the voir dire examination. Justice Harlan stated: "It is quite true, as suggested by the accused, that he was entitled to be tried by an impartial jury; that is, by jurors who had no bias or prejudice that could prevent them from returning a verdict according to the law and evidence. It is equally true that a suitable inquiry is permissible in order to ascertain whether the juror has any bias, opinion, or prejudice that would affect or control the fair determination by him of the issues to be tried. That inquiry is conducted under the supervision of the court, and a great deal must, of necessity, be left to its sound discretion. This is the rule in civil cases, and the same rule must be applied in criminal cases."¹²⁴

123 United States v. Barber, 21 D. C. 456, 463 (1893).

124 Connors v. United States, 158 U.S. 408, 413, 15 S.Ct. 951, 953, 39 L.Ed. 1033 (1895). Counsel for defendant submitted his questions in writing to the trial judge. This case was said to be guiding opinion on voir dire in Murphy v. United States, 7 F.2d 85, 87 (1st Cir. 1925) cert. denied 269 U.S. 584, 46 S.Ct. 120, 70 L.Ed. 424. For a discussion of voir dire in England, see Moore, "Voir Dire Examination of Jurors," 16 Geo.L.J. 438 (1928); and in the federal courts see Ibid., 17 Geo.L.J. 13 (1928).

The law as to who conducts the voir dire examination is well stated in a decision of a Court of Appeals: "The defendants complain that when the jurors were examined on their voir dire, the judge personally interrogated them, requiring their counsel to submit to him any questions they wished asked. No authority tending to show that there was any error in the action of the court has been brought to our attention. The practice is one which has been followed in many districts from time out of mind. It not only saves much time, but has other manifest advantages."¹²⁵

125 Ungerleider v. United States, 5 F.2d 604, 605 (4th Cir. 1925) cert. denied 269 U.S. 574, 46 S.Ct. 101, 70 L.Ed. 419.

Another Court stated: "This practice is in use in several states; it was recently recommended to the federal trial judges by the conference composed of the Chief Justice and the senior Circuit Judges; it has been formally adopted in the court below by a published rule; and we approve of it as a proper and often very desirable practice."¹²⁶ The rules of the state in which the federal court sits are not binding on the federal court.¹²⁷

126 Kurczak v. United States, 14 F. 2d 109, 110 (6th Cir. 1926). See also Bonness v. United States, 20 F.2d 754, 755 (9th Cir. 1927); Carroll v. United States, 16 F.2d 951, 955 (2d Cir. 1927); Williams v. United States, 46 F.2d 731, 733 (5th Cir. 1931). For the recommendation of the Conference of Senior Circuit Judges see 10 A.B.A.J. 875 (1924), 8 J.Am.Jud.Soc. 92, 94 (1924).

127 Christianson v. United States, 290 Fed. 962 (6th Cir. 1923).

The trial judge may refuse to allow counsel for defendant personally to examine jurors on their voir dire along a line suggested by him which from its nature might have extended to great length.¹²⁸ The voir dire examination would be adequate in such a case where despite the court's invitation counsel suggested no questions, and the judge then stated the purport of the indictment; and asked if there was any reason why any of the prospective jurors could not fairly and impartially try the defendant and directed that if there was he should stand aside. Where on voir dire counsel for the defendant wishes to ask the prospective jurors questions calculated to induce a misunderstanding the trial judge in his discretion may refuse permission to ask such questions.¹²⁹

128 Murphy v. United States, 7 F. 2d 85 (1st Cir. 1925) cert. denied 269 U.S. 584, 246 S.Ct. 120, 70 L. Ed. 424.

129 Watlington v. United States, 233 Fed. 247, 248 (8th Cir. 1916) cert. denied 242 U.S. 645, 37 S.Ct. 214, 61 L.Ed. 543.

A Court of Appeals has criticized the practice of a trial court in permitting counsel to conduct the voir dire examination.¹³⁰ It results in the use of leading questions. In a murder case it resulted in a failure to bring out that self-defense was to be the sole defense. Thus it was impossible or difficult to discover the true state of mind of the prospective jurors.

130 Frank v. United States, 59 F.2d 670, 671 (9th Cir. 1932).

The defendant's right to counsel under the Sixth Amendment is not violated when the trial court conducts the voir dire examination.¹³¹

131 Paschen v. United States, 70 F. 2d 491, 495 (7th Cir. 1934).

On rare occasions a trial judge has been guilty of such misconduct in examining prospective jurors as to warrant a reversal and new trial. Where the trial judge, on being informed that certain persons claiming to be detectives had interviewed the jurors summoned for the term, directed an examination of these jurors, which disclosed no attempt to tamper with the jury it was error for the judge, in the presence of the panel from which the juries who tried the defendants were subsequently selected, to use the word "tampering" in connection with the detectives and later to charge the defendants with having endeavored to do something wrong to the jury, which charge there was no evidence to support.¹³² Such a jury could not be impartial. On the other hand if there really had been wrongdoing the panel should have been discharged.

132 Hart v. United States, 240 Fed. 911, 917 (2d Cir. 1917). But an expression of opinion by the United States Attorney as to jury tampering is not reversible error. United States v. Parker, 103 F.2d 857, 862 (3rd Cir. 1939) cert. denied 307 U. S. 642, 59 S.Ct. 1044, 83 L.Ed. 1522.

The trial judge may discharge a juror from further service who favored acquittal in other cases, if he thought him an improper juror, but the discharge should not be made in the presence of other jurors in such a way as to indicate that it was a rebuke for failure to convict.¹³³ Permitting the United States Attorney on voir dire examination to criticize a juror who had served on a panel in a similar trial in which there had been an acquittal, and the subsequent dismissal of such juror for cause was held to be reversible error as tending to effect the remaining jurors' free exercise of their judgment.¹³⁴

133 Wolf v. United States, 292 Fed. 673, 678 (6th Cir. 1923); Hindman v. United States, 292 Fed. 679, 683 (6th Cir. 1923).

134 Filippelli v. United States, 6 F. 2d 121, 123 (9th Cir. 1925).

A Court of Appeals held that the range of a jury on voir dire "should be liberal"¹³⁵ yet it is "the duty of the trial court to see that upon such inquiry, no collateral or unrelated issue is brought into the case." At first it was held that there could be no questioning for purposes of peremptory challenge.¹³⁶ But subsequent cases allowed such questioning.¹³⁷

135 United States v. Daily, 139 F. 2d 7, 9 (7th Cir. 1943).

136 Browne v. United States, 145 Fed. 1, 7 (2d Cir. 1905) affirming 126 Fed. 766 (C.C.S.D.N.Y. 1903) and 128 Fed. 615 (C.C.S.D.N.Y. 1904) cert. denied 200 U.S. 618, 26 S.Ct. 755, 50 L.Ed. 623.

137 Murphy v. United States, 7 F.2d 85 (1st Cir. 1925); Kurczak v. United States, 14 F.2d 109, 110 (6th Cir. 1926); Beatty v. United States, 27 F.2d 323, 324 (6th Cir. 1928).

The Supreme Court has held that to make out the existence of partiality, "the juror who is challenged may be examined on his voir dire, and asked any questions that do not tend to his infamy or disgrace."¹³⁸ In a federal civil case it was held that a prospective juror need not disclose under oath on voir dire his guilt of a crime which would disqualify him from jury service.¹³⁹ The juror had aided or abetted in the Civil War against the federal government. Justice Miller speaking for the court stated that "a juror is no more than a witness obliged to disclose on oath his guilt of any crime or of any act which would disgrace him in order to test his qualification as a juror." Such a rule does not deprive a party of his challenge for cause as the challenger is at liberty to prove the disqualification "by any other competent testimony."

138 Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244 (1878). Compare, however, the language at 98 U.S. 157.

139 Burt v. Panjaud, 99 U.S. 180, 181, 25 L.Ed. 451 (1878).

The trial judge may refuse to permit counsel to conduct an individual voir dire examination in a White Slave prosecution.¹⁴⁰ Examination of the group as a whole was enough. The judge could refuse examination as to whether or not the prospective jurors had been witnesses in similar prosecutions. Another court of appeals suggested that individual examination of jurors be permitted by the judge if this is necessary for intelligent exercise of peremptory challenges.¹⁴¹ In a liquor prosecution where counsel did not see the jury list, a summary refusal to permit asking other than statutory questions was held reversible error.¹⁴²

140 Noland v. United States, 10 F. 2d 768 (9th Cir. 1923). See also Shively v. United States, 299 Fed. 710, 714 (9th Cir. 1924); Fredericks v. United States, 292 Fed. 856, 858 (9th Cir. 1923); Bradshaw v. United States, 15 F.2d 970, 971 (9th Cir. 1926).

141 Kurczak v. United States, 14 F. 2d 109, 110 (6th Cir. 1926). See 17 Minn. L. Rev. 299, 302 (1933).

142 Bailey v. United States, 53 F. 2d 982, 983 (5th Cir. 1931).

The trial judge may rightly deny a question on examination of prospective jurors which involves the main legal issue of the case and should be embraced in the instructions to the jury.¹⁴³ The question sought to be asked was: "Would you consider it a fraudulent practice on the United States for a man to loan to a would-be homesteader the money to pay his fees, commissions, and expenses of his entry?"

143 Richards v. United States, 175 Fed. 911, 914 (8th Cir. 1909) cert. denied 218 U.S. 670, 31 S.Ct. 221, 54 L.Ed. 1203.

The trial judge may exclude a question propounded to jurors on their voir dire as to what their verdict would be in case there was evidence of guilt, but not enough to satisfy them beyond reasonable doubt, where the record is silent as to other questions asked.¹⁴⁴ The trial judge may also refuse a question as to how the juror would vote if the testimony should turn out to be equally balanced.¹⁴⁵ These matters will be covered by the court's instructions which it is to be assumed the jurors will obey.

144 Christianson v. United States, 290 Fed. 962 (6th Cir. 1923). See also Fredericks v. United States, 292 Fed. 856, 858 (9th Cir. 1923).

145 Kurczak v. United States, 14 F.2d 109, 110 (6th Cir. 1926).

In an examination on voir dire in a murder case, the inquiry should be merely whether the prospective juror is unbiased as to capital punishment and imprisonment for life.¹⁴⁶ If the juror replies that he is unbiased, and that his finding a qualified or unqualified verdict in the event of conviction, would depend on the facts and circumstances of the case, he is qualified and the defendant cannot challenge for cause. Examination of jurors, in capital cases as to prejudice against capital punishment should be confined to ascertainment of their views and the strength thereof, with the sole object of determining whether they would approach the issue in the proper frame of mind.¹⁴⁷ A statement by the trial judge to jurors excused for prejudice against capital punishment as to the duty to enforce the laws as made is prejudicial, especially, where, as to letters received by all members of the panel, the court stated that some one had tried to obstruct justice by preventing the assessment of the death penalty.

146 Snell v. United States, 16 App. D.C. 501, 506 (1900). See the cases cited in United States v. Puff, 211 F.2d 171, 182-184 (2d Cir. 1954).

147 Manuel v. United States, 254 Fed. 272, 274 (8th Cir. 1918).

In some cases such as the trials of Burr and Guiteau almost every prospective juror answered on his voir dire that he had formed an opinion.¹⁴⁸ As a result several hundred persons had to be summoned for jury service.

148 United States v. Barber, 21 D. C. 456, 463 (1893). See note 60 Col. L. Rev. 349, 356-359 (1960).

A Court of Appeals has stated: "The right to ask a question whether or not evidence would be required to remove an opinion formed by a juror is one usually permitted, as the inquiry tends to further the end of justice. The same should ordinarily be permitted, and its refusal would be error, unless it appears from the whole case that such denial did not operate prejudicially to the exceptant."¹⁴⁹

149 Assaid v. United States, 10 F.2d 752, 753 (4th Cir. 1926).

The refusal of a trial judge to permit inquiry of jurors for the purpose of ascertaining whether they had formed a fixed opinion as to the guilt or innocence of the defendant, is reversible error even though the jurors denied that they had formed and expressed opinions, since, in case a juror has formed an opinion on the merits, he is incompetent whether he had expressed an opinion or not.¹⁵⁰ This is particularly important where there had previously been a mistrial. The trial judge had not told the prospective jurors that the forming of a fixed opinion as to guilt or innocence was a disqualification, hence they might have concluded that no unexpressed opinion was ground for disqualification.

150 Neal v. United States, 22 F.2d 52, 53 (4th Cir. 1927). See also Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244 (1878).

In a prosecution for failure to report for induction, the defendant has the right to inquire as to prejudice of any prospective juror against the defendant which might arise out of the fact that the defendant was a Jehovah's Witness.¹⁵¹ But he could not inquire as to the religious beliefs of the jurors or their knowledge of how a minister of the Jehovah's Witnesses is ordained.

151 United States v. Dailey, 139 F. 2d 7, 9 (7th Cir. 1943).

In a prosecution for seizing and carrying away a ballot box used in a Congressional election it was held not to be an error for the trial judge to refuse a question on voir dire by the defendant to a prospective juror: "Would your political affiliations or party predilection tend to bias your judgment in this case either for or against the defendant?¹⁵² The defendant had failed to show any special circumstances making the question a proper one. The prospective juror had not shown that he regarded the prosecution as a political one. A Socialist defendant indicted for failure to register under the Selective Draft Law may be refused permission to examine the jurors whether they distinguish between Socialists and Anarchists.¹⁵³

152 Connors v. United States, 158 U.S. 408, 414, 15 S.Ct. 951, 39 L.Ed. 1033 (1895).

153 Ruthenberg v. United States, 245 U.S. 480, 482, 38 S.Ct. 168, 62 L. Ed. 414 (1918).

In a prosecution for first degree murder by a Negro defendant of a white person, the court having asked whether the prospective jurors could give the defendant a fair trial need not inquire also whether the fact that the defendant was a Negro and the victim a white person would affect their verdict.¹⁵⁴ But the Supreme Court later held that a Negro, about to be tried for the murder of a white man is entitled to have the jurors asked on their voir dire whether they have any racial prejudice that would prevent a fair and impartial verdict.¹⁵⁵ The request for such inquiry may be informal in form.

154 Crawford v. United States, 59 App.D.C. 356, 41 F.2d 979, 980 (D.C. Cir. 1930).

155 Aldridge v. United States, 283 U.S. 308, 51 S.Ct. 470, 75 L.Ed. 1054, 73 A.L.R. 1203 (1931) reversing 60 App.D.C. 45, 47 F.2d 407 (D.C. Cir. 1931). The case is noted 2 Idaho L.J. 64, 22 J.Crim.L. 747, 10 N.C. L. Rev. 86, 5 So.Calif. L. Rev. 166.

An allegation that the voir dire was inadequate because it did not inquire into the aims of secret organizations, such as the Ku Klux Klan, will not be considered on appellate review where no members of the organization actually served on the jury.¹⁵⁶

156 Ungerleider v. United States, 5 F.2d 604, 605 (4th Cir. 1925) cert. denied 269 U.S. 574, 46 S.Ct. 101, 70 L.Ed. 419.

In a liquor prosecution the defendant was entitled to have a question, whether any prospective juror was a member of, or contributed to any organization for the purpose of enforcing the prohibition law put to the jury, since a reasonable amount of inquiry in aid of the right of peremptory challenge should be permitted.¹⁵⁷

157 Beatty v. United States, 27 F. 2d 323, 324 (6th Cir. 1928).

In a prosecution for making false statements by concealing membership in the Nazi party when applying for an alien enemy certificate, the court could refuse to ask jurors on voir dire whether such membership would prejudice them if sworn.¹⁵⁸ The very questions they would be called upon to decide were involved. The judge did ask the jurors whether they could not fairly and impartially decide solely in accordance with the evidence. Moreover the court in its charge instructed the jury that the defendant was not charged with having violated the law merely because he was a member of the Nazi party. And the defendant later conceded that he was a member of the Nazi party.

158 United States v. Barra, 149 F. 2d 489, 490 (2d Cir. 1945).

In a prosecution for exporting platinum group metals without a license, the trial court could properly permit the government on voir dire to ask prospective jurors whether they had any connection with the governments of Germany, Japan, or Italy; whether they dissented from the declaration of war or desired a negotiated peace, and whether they had received any decorations from such countries.¹⁵⁹

159 United States v. Kertess, 139 F. 2d 923, 930 (2d Cir. 1944).

A juror's concealment of facts on voir dire may constitute criminal contempt. In a leading case the contemnor was summoned as a member of the jury panel for the Foshay trial. Two years before the trial she had been employed as a stenographer for a period of two weeks by the Foshay Company, in which the defendants were officers. It was shown that she had this employment in mind shortly before the voir dire and had wondered if it would disqualify her. She stated that she had been a stenographer before her marriage and named several places at which she had worked but failed to mention her employment by the Foshay Company, which had been after her marriage. Defendant also stated in response to a question, that she was not biased, and was accepted as a juror. At the trial which lasted eight weeks her actions and speech indicated that she was biased in favor of the defendants. Testimony of the other jurors showed that her bias continued during the jury deliberations. There was a mistrial because of jury disagreement. Only the contemnor favored acquittal. After the trial the district court found her guilty of contempt of court.¹⁶⁰ The Court of Appeals affirmed.¹⁶¹ The Supreme Court likewise affirmed.¹⁶² It held that a juror who wilfully gives a misleading answer to a question asked on voir dire examination with the intention of concealing material facts in order to be selected as a member of the jury is guilty of contempt. Evidence of the juror's statements and actions during the deliberations of the jury is not privileged and may be admitted to show that the juror was¹⁶³ biased when selected as a juror. The oath of the contemnor or "purging" will not be a bar to prosecution for contempt. In the prior cases in the state courts convictions of jurors were based on answers which were clearly false. In the instant case a juror was convicted for answers which, although not strictly false, were misleading in that they failed to volunteer certain information. The decision is dubious since it places a juror under a duty not only of giving true answers to questions asked, but also of disclosing information which might be valuable to counsel for exercising his right of challenge, even though not specifically asked.¹⁶⁴ The case had a tragic aftermath. The contemnor committed suicide.

160 United States v. Clark, 1 F. Supp. 747 (D.Minn. 1931). The case was heard by two judges. The penalty fixed was six months' jail and a fine of $1,000.00.

161 Clark v. United States, 61 F. 2d 695 (8th Cir. 1932) noted 17 Minn. L. Rev. 340. One judge dissented. The court remanded for sentencing as there could not be both a fine and imprisonment. The dissent pointed out that the contemnor was not asked whether she had worked for Foshay.

162 Clark v. United States, 289 U.S. 1, 53 S.Ct. 465, 77 L.Ed. 993, (1933). Noted 28 Ill. L. Rev. 292, 24 J.Crim. L. 446, 17 Marq. L. Rev. 300, 31 Mich. L. Rev. 850, 17 Minn. L. Rev. 654, 11 N.C. L. Rev. 347, 81 U.Pa. L. Rev. 1000, 8 Wis. L. Rev. 371.

163 It has been pointed out that no prior precedents had so held. 17 Marq. L. Rev. 300, 301 (1933). But see 17 Minn. L. Rev. 654, 656 n. 12 (1933) citing a New York state court case. But this case seems to be the only one so holding. 11 N.C. L. Rev. 347, 348 (1933).

164 Note, 17 Minn. L. Rev. 299, 305-306 (1933).

Where a prospective juror who had pleaded guilty to a misdemeanor charge of mutiny on a steamship on the high seas, when examined regarding his qualifications to serve as a grand juror, answered in the negative questions whether he had been convicted of any crime, he was guilty of contempt of court.¹⁶⁵ But in view of the fact that he believed that the question referred to felonies, a light penalty was given, namely 30 days in the county jail and a fine of $500, jail sentence to be suspended on payment of the fine.

165 United States v. Lampkin, 66 F. Supp. 821 (S.D.Fla. 1946). The case was heard by two judges.

Challenge for Cause

In a case discussing challenge by the defendant the Supreme Court stated by Chief Justice Waite: "By the Constitution of the United States (Amend. VI) the accused was entitled to a trial by an impartial jury. A juror to be impartial must, to use the language of Lord Coke, "be indifferent as he stands unsworn." Co. Litt. 155 b. Lord Coke also says that a principal cause of challenge is so called because if it be found true, it standeth sufficient of itself, without leaving anything to conscience or discretion of the triers" (id. 156b); or as stated in Bacon's Abridgment, "it is grounded on such manifest presumption of partiality, that, if found to be true, it unquestionably sets aside the * * * juror." Bac. Abr. tit. Juries E. 1."¹⁶⁶

166 Reynolds v. United States, 98 U.S. 145, 154-155, 25 L.Ed. 244 (1878).

A Court of Appeals has stated that the right of a defendant to an impartial jury "was not only secured to him by the sixth amendment * * *, but is recognized by every court of justice."¹⁶⁷ The Sixth Amendment expressly requires that the jury be impartial. This would bar any legislation which prevented a defendant from challenging jurors for causes going to their fairness and impartiality. But it does not prevent Congress from excluding as grounds for challenges causes that do not go to these matters. Hence a statute of 1935 making certain classes of federal government employees and pensioners eligible for jury duty is constitutional.¹⁶⁸ The Supreme Court made it clear that it would have reached the same decision even if such persons had been ineligible under common law rules. Thus a mere appeal to history will not show the extent of the right to trial by an impartial jury. There was no violation of due process of law under the Fifth Amendment either.

167 Williams v. United States, 98 Fed. 396, 398 (9th Cir. 1899).

168 United States v. Wood, 299 U. S. 123, 133, 57 S.Ct. 177, 81 L.Ed. 78 (1936) reversing Wood v. United States, 65 App.D.C. 330, 83 F.2d 587 (D.C. Cir. 1936). The case is noted 6 Brook L. Rev. 388, 50 Harv. L. Rev. 692, 27 J.Crim.L. 914, 21 Minn. L. Rev. 608, 11 Temple L.Q. 430. Three justices dissented and one took no part.

A group of cases¹⁶⁹ has held that challenging and determining the qualifications of jurors is governed by state law under the general federal statute of 1866 on federal criminal procedure.¹⁷⁰ But there were many contrary cases.¹⁷¹ These contrary cases held that while the qualifications of jurors were governed by state law, the time and mode of objecting to a disqualification and the effect on a verdict of participation by a disqualified juror was governed by the common law.¹⁷²

169 United States v. Eagan, 30 Fed. 608, 612 (E.D.Mo. 1887) (may follow state law); Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 36 L.Ed. 1011 (1892) (is customary to follow state law); Avila v. United States, 76 F.2d 39, 42 (9th Cir. 1935).

170 Rev. Stat. § 722, 42 U.S.C.A. § 1988 enacted April 9, 1866.

171 See the cases cited in the dissent in Avila v. United States, 76 F.2d 39, 43, 46-49 (9th Cir. 1935).

172 Roush v. United States, 47 F.2d 444 (5th Cir. 1931); Strang v. United States, 53 F.2d 820, 821 (5th Cir. 1931).

After the jury is selected and sworn the trial proceeds under federal rules of practice and not state law.¹⁷³ Hence when the verdict is attacked because one of the jurors was a county commissioner and therefore disqualified under state law, federal law will be applied. While under state law a motion in arrest of judgment would lie, it would not under federal practice.

173 Roush v. United States, 47 F. 2d 444, 445 (5th Cir. 1931).

In 1876 a circuit court stated: "When a juryman is sworn in a cause, a trial is commenced — perhaps, when one juryman is drawn from the box."¹⁷⁴ Even more clearly the trial has commenced where challenges had been taken and tried and three jurymen had been accepted and sworn. Such a trial could proceed even though a new term of court commenced during the trial and after the swearing of a juror.

174 United States v. Loughery, 26 Fed.Cas. 998, 999, case no. 15,631 (C.C.E.D.N.Y. 1876).

A federal court has stated that "strictly speaking, and a common law, a jury is impaneled only when they have been [selected] and are ready to be sworn, though the more modern use of the term often indicates the jury as sworn in a particular case."¹⁷⁵

175 Brewer v. Jacobs, 22 Fed. 217, 242 (W.D.Tenn. 1884); Clough v. United States, 55 Fed. 921, 928 (W. D.Tenn. 1894).

In general there could be no challenge of a juror after the panel was sworn for cause which existed at the time of voir dire examination.¹⁷⁶

176 United States v. Morris, 26 Fed. Cas. 1323, 1327, case no. 15,815 (D. Mass. 1851); Hawkins v. United States, 116 Fed. 569, 575 (9th Cir. 1902).

In 1878 the Supreme Court pointed out that in the federal court "all challenges are tried by the court without the aid of triers."¹⁷⁷ In 1884 a court pointed out that under federal statute:¹⁷⁸ "Challenges in the federal courts are now tried by the court without the aid of triers."¹⁷⁹ At common law challenges were tried by triers, consisting of two indifferent persons appointed by the court, until one juror was obtained, when he took the place of one of the triers, and when another was accepted, these two jurors were triers before whom witnesses were sworn and whose decision was final.¹⁸⁰ This method was used as to challenges propter affectum to the favor. Since challenges to the favor are now tried like principal challenges, there is now no differences between these two classes.¹⁸¹

177 Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1878).

178 Rev. Stat. § 819.

179 Brewer v. Jacobs, 22 Fed. 217, 242 (W.D.Tenn. 1884).

180 See United States v. Callender, 25 Fed.Cas. 239, 244, case no. 14,709 (C.C.D.Va. 1800); United States v. Wilson, 28 Fed.Cas. 699, 702, case no. 16,730 (C.C.E.D.Pa. 1830).

181 Moore, "Voir Dire Examination of Jurors," 16 Geo.L.J. 438, 441 (1928).

The government, like the defendant may challenge for cause.¹⁸² A defendant may waive his challenge for cause.¹⁸³ An improper sustaining of the government's challenge for cause is not ground for a new trial if an impartial jury is obtained.¹⁸⁴

182 United States v. Burr, 25 Fed. Cas. 55, 85, case no. 14,693 (C.C.D. Va. 1807).

183 United States v. Burr, 25 Fed. Cas. 55, 86, case no. 14,693 (C.C.D. Va. 1807).

184 United States v. Davis, 103 Fed. 457, 470 (C.C.W.D.Tenn. 1900). Fourteen of the defendant's peremptory challenges remained unused. See also Simpson v. United States, 184 Fed. 817, 819 (8th Cir. 1911); and the cases cited in United States v. Puff, 211 F.2d 171, 185 (2d Cir. 1954).

As of 1946¹⁸⁵ the following were the qualifications of jurors. Under federal statute they were to have the same qualifications as those of the highest courts in the state. They could not be disqualified on account of race. They were to be chosen without reference to party affiliations. They were to be returned from various parts of the district so as to be impartial yet not burdensome in expense. They were not to serve more than one term in a year. Persons believing in polygamy could not serve in bigamy cases. Artificers and workmen employed in armories or arsenals of the United States was exempt from service as jurors.

185 Ballard v. United States, 329 U.S. 187, 190, 67 S.Ct. 261, 91 L.Ed. 181 (1946).

At common law challenges to the individual juror could be made propter defectum, as for alienage, infancy or insanity of the prospective juror.¹⁸⁶ Challenges propter delictum could be made on account of the criminal record of the prospective juror. Challenges propter affectum could be made on account of bias or prejudice.

186 Moore, "Voir Dire Examination of Jurors", 16 Geo.L.J. 438, 441 (1928); Amandes, "Jury Challenge in Criminal Cases", 3 Wayne L. Rev. 106 (1957).

The deafness of a juror is a ground for challenge for cause.¹⁸⁷ Even if the defendant was ignorant of such deafness, he is not entitled to a new trial after conviction. The court stated broadly that nothing that is a cause of challenge to a juror before verdict can be used to set aside the verdict. In dictum the court stated that the same rule applied to alien, infant and female jurors.

187 United States v. Baker, 24 Fed. Cas. 952, case no. 14,999 (S.D.N.Y. 1868). In accord see Brewer v. Jacobs, 22 Fed. 217, 238 (W.D.Tenn. 1884). See 15 A.L.R.2d 534 (1951).

The Supreme Court held in a state court case that one convicted by a jury and sentenced to death had not been deprived of due process of law because after verdict a juror became insane but the two judges assigned for the purpose found by a preponderance of the evidence that the juror had sufficient mental capacity during the trial.¹⁸⁸ The court stated by Justice Lurton: "Due process implies a tribunal both impartial and mentally competent to afford a hearing." A federal court has held that even in a capital case where a juror becomes insane, the jury must be discharged without the consent of the defendant or his counsel and there is no jeopardy.¹⁸⁹ A state court has held that where a juror becomes insane after the trial has progressed for three days, a mistrial must be declared.¹⁹⁰ The trial cannot go on before the remaining eleven jurors.

188 Jordan v. Commonwealth of Massachusetts, 225 U.S. 167, 32 S. Ct. 651, 56 L.Ed. 1038 (1912) affirming Commonwealth v. Jordan, 207 Mass. 259, 93 N.E. 809, 815 (1911). See also United States v. Rosenstein, 34 F.2d 630, 634 (2d Cir. 1929) cert. denied 280 U.S. 581, 50 S.Ct. 33, 74 L.Ed. 631; Church v. Capital Freight Lines, 141 Cal.App. 2d 246, 296 P.2d 563, 564 (Dist.Ct. of Appeals, 3rd District 1956); Scott, "The Supreme Court's Control over State and Federal Criminal Juries", 34 Iowa L. Rev. 577, 581, 599 (1949); Scott, "Federal Restrictions on Evidence in State Criminal Cases", 34 Minn. L. Rev. 489, 504 (1950).

189 United States v. Haskell, 26 Fed.Cas. 207, 210; case no. 15,321 (C.C.E.D.Pa. 1823). Opinion made by Circuit Justice Washington.

190 Dennis v. State, 96 Miss. 96, 50 So. 499, 25 L.R.A., N.S., 36 (1909). In State v. Rogers, 162 N.C. 656, 78 S.E. 293, 46 L.R.A., N.S., 38 (1913) it was held that there could not be trial by the other 11 jurors even though the defendant waived.

Where jurors are called who had been returned on the venire by wrong names, they cannot be sworn.¹⁹¹ "It would be a mistrial, if it should appear by the record, that the juror sworn was not the same person who was summoned and returned on the venire."¹⁹² But a modern case has held that misnomer of a juror is not necessarily a ground for new trial when it appears that the juror who was served was the one summoned, and actually attended in good faith.¹⁹³ The name drawn from the box was Butler Crane. The juror actually serving was Bentley F. Crane. If counsel had examined the juror as to his name, the misnomer would have been discovered.

191 United States v. Wilson, 28 Fed. Cas. 699, 701, case no. 16,730 (C. C.E.D.Pa. 1830).

192 Ibid., 28 Fed.Cas. 702, compare Brewer v. Jacobs, 22 Fed. 217, 238 (W.D.Tenn. 1884).

193 Chadwick v. United States, 141 Fed. 225, 243 (6th Cir. 1905). See, Commonwealth v. Potts, 241 Pa. 325, 88 A.2d 483, 47 L.R.A., N.S., 714; 18 Col. L. Rev. 488 (1918).

In a civil case it was held that when there has been a fair trial and the verdict is fully warranted by the evidence, the court need not grant a new trial because one of the jurors was a nonresident of the district of trial, even though this fact was not learned until after the trial.¹⁹⁴ In upholding a conviction although a juror did not reside within the federal district, a court of appeals stated: "Failure to come within the statutory requirements, such as citizenship, age, property, sex, and residence, which does not go to make up the essential qualities to enable a juror to perform his duties intelligently and impartially, may be waived by a defendant, even when such waiver consists of excusable want of knowledge, and even though he may have successfully objected to the jurors sitting at the time of his examination."¹⁹⁵ The defendant should object before the swearing of the jury. Objection may not be made later as when the government is presenting its evidence by asking for a mistrial. The result would be different if the juror is not fair or impartial, or is not mentally qualified to serve as a juror.

194 Fisher v. Yoder, 53 Fed. 565 (C. C.W.D.Pa. 1892).

195 United States v. Rosenstein, 34 F.2d 630, 634 (2d Cir. 1929) cert. denied, 280 U.S. 581, 50 S.Ct. 33, 74 L.Ed. 631.

A juror's disqualification because he is not a householder as required by state law is merely a ground of challenge propter defectum, which is waived by failure to challenge voluntarily through negligence or even through want of knowledge of disqualification.¹⁹⁶

196 Williams v. United States. 3 F. 2d 933, 935 (9th Cir. 1925).

In 1895 the Supreme Court stated in a state court case: "The disqualification of alienage is cause of challenge propter defectum, on account of personal objection, and if voluntarily, or through negligence, or want of knowledge, such objection fails to be insisted on, the conclusion that the judgment is thereby invalidated is wholly inadmissible. The defect is not fundamental as affecting the substantial rights of the accused, and the verdict is not void for want of power to render it. * * * Whether, where the defendant is without fault, and may have been prejudiced, a new trial may not be granted on such a ground, is another question. That is not the inquiry here."¹⁹⁷ Although waiver of trial by jury may be inadmissible, it does not follow that objection to individual jurors cannot be waived.

197 Kohl v. Lehlbach, 160 U.S. 293, 302, 16 S.Ct. 304, 307, 40 L.Ed. 432 (1895). This was followed in Raub v. Carpenter, 187 U.S. 159, 164, 23 S.Ct. 72, 47 L.Ed. 119 (1902). See comprehensive annotation entitled "Unknown disqualification of juror existing at the time of his selection as ground for new trial". 50 L.R.A., N.S., 933-979. See the suggestion of the Supreme Court that sometimes a new trial lies for "the misbehavior or partiality of jurors" in United States v. Mayer, 235 U.S. 55, 69, 35 S.Ct. 16, 59 L.Ed. 129 (1914).

The Supreme Court stated in 1936: "Although aliens are within the protection of the Sixth Amendment, the ancient rule under which an alien might have a trial by jury de medietate linguae, `one half denizens and the other aliens' — in order to insure impartiality — no longer obtains."¹⁹⁸

198 United States v. Wood, 299 U. S. 123, 145, 57 S.Ct. 177, 185, 81 L. Ed. 78 (1936).

The objection that a juror was not of lawful age and was not a freeholder or householder came too late after verdict.¹⁹⁹ It is not ground for a new trial. If one appears who was not summoned to serve as a juror in place of one drawn from the box, it is doubtful that the objection is good after verdict. The case was a civil case hence not necessarily controlling in criminal cases. The court stated: "Motions for a new trial in Tennessee, even in criminal cases, have always been regarded with disfavor by courts when the motions are grounded on such disqualifications of a juror as a challenge propter defectum upon the trial would disclose. The want of these purely statutory qualifications, such as citizenship, age, property, sex, etc., which do not go to make up the really (not purely legal) necessary and essential qualities to enable the juror to do his duty intelligently and impartially in the case, have never in this state or elsewhere, been treated with the same strictness as objections to the juror for bias, partiality, criminality, and the like causes reached by challenge propter defectum and propter delictum as designated in the common law. Indeed, the courts are swift to lay hold of an argument or fact in the record on which to ground a denial of these motions when based upon the propter defectum class of juror disqualifications, especially where they can see that no injury has thereby resulted to the party objecting to the verdict."²⁰⁰

199 Brewer v. Jacobs, 22 Fed. 217, 231, 237 (W.D.Tenn. 1884). The court followed a rule of court adopting the Tennessee practice as to qualifications of jurors. The common law was said to be to similar effect. Disqualifications for over age of two jurors was held not a ground for new trial in United States v. Folsom, 7 N.Mex. 532, 38 Pac. 70, 73 (1894) as the defendant failed to show injury therefrom and did not object before or during the trial.

200 Ibid., 22 Fed. 234.

But the Supreme Court of the District of Columbia held that a statute providing that persons over 65 should not serve on a jury was a basis for a new trial when a juror, knowing of his incompetency as to age, fraudulently concealed the fact when asked by the court about it and neither the defendant nor his counsel know of such incompetency.²⁰¹ The court pointed out that the law was in conflict, and that most of the cases held otherwise. The court was careful to say that it was not holding that a new trial lay if the defendant knew of the incompetency. The court also pointed out that the crime involved, assault with intent to kill, was a serious one. But the court stated that if the juror had been an infant or a woman, the same result would have been reached. In a civil case there would be no new trial. With respect to age of the juror he is qualified if he was of the proper age, not too old, when he was sworn.²⁰² It makes no difference that he becomes over age during the trial. A mistrial will not be granted, nor will a motion in arrest of judgment.

201 United States v. Angney, 6 Mackey 66, 80, 89 (1887). The juror was 67.

202 Funk v. United States, 16 App. D.C. 478, 489 (1900).

The defendant must challenge prospective women jurors in a state not providing for women jurors by challenge for cause.²⁰³ It is too late to object after verdict by motion in arrest of judgment. The court stated that the same rule applies to disqualifications "because of age, residence, citizenship, sex, property, etc." This was true even though the defendant had no knowledge as to the disqualification. While the court stated that in this case the defendant had knowledge, this seems not convincing as the Illinois Statute providing for service of women on the jury was found unconstitutional thirty days after the defendants were sentenced. Where a statute provides for service of women on a jury, women may serve and there is no violation of the constitutional right to trial by jury.²⁰⁴

203 Zito v. United States, 64 F.2d 772, 773 (7th Cir. 1933).

204 Tynan v. United States, 297 Fed. 177, 178 (9th Cir. 1924) cert. denied 266 U.S. 604, 45 S.Ct. 91, 69 L.Ed. 463. An Alaskan law of 1923 permitted women to serve. See also Hoxie v. United States, 15 F.2d 762 (9th Cir. 1926).

It has been held that when one of the jurors convicting the defendant was a member of the grand jury indicting him, which fact was unknown to the defendant until after verdict this is a proper ground for granting a new trial.²⁰⁵ The Supreme Court has held that it is ground for a mistrial.²⁰⁶

205 United States v. Christiansen, 7 Utah 26, 24 P. 618, July 12, 1890, cited in 18 L.R.A. 473, 478.

206 Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 39 L.Ed. 146 (1894).

The fact that one of the trial jurors has served on the petit jury of the next preceding term, contrary to the state law, is not ground for motion in arrest of judgment.²⁰⁷ Objection should be made before the jury is sworn. The limitations or service was for the ease of jurors and merely directory to the summoning officer * * *. It does not disqualify the juror, and even if it did, the objection came too late. Where a federal statute provided for service on a federal jury only once a year, service on a state court jury during the year would not disqualify.²⁰⁸ No challenge for cause would lie.

207 United States v. Peaco, 27 Fed. Cas. 477, 478, case no. 16,018 (C.C. D.C. 1835).

208 Morris v. United States, 161 Fed. 672, 675 (8th Cir. 1908); Brickey v. United States, 123 F.2d 341, 346 (8th Cir. 1941).

The defendant is not entitled to a jury selected from the entire panel embraced in the venire for the term.²⁰⁹ It is enough that he gets a jury of 12 unbiased jurors from the regular panel. The remainder of the panel were engaged in the trial of another case in another court of the district. If enough of the regular panel does not remain, talesmen could be added.

209 Cain v. United States, 19 F.2d 472, 475 (8th Cir. 1927).

Motion in arrest of judgment is not a proper mode to attack a defective juror. It will not lie because a juror had religious scruples about serving as a juror on a Saturday.²¹⁰ Such scruples became apparent only at the trial after the juror had been sworn.

210 United States v. McKnight, 112 Fed. 982, 987 (W.D.Ky. 1902). Motion for new trial will not lie either.

An act²¹¹ of June 17, 1862, disqualified a person from service as a grand or petit juror if he voluntarily took part in the Rebellion.²¹² But if the defendant went to trial without raising any objection he would waive such disqualification.²¹³ This statute was repealed in 1871.²¹⁴

211 Rev. Stat. § 820.

212 Such a challenge was upheld in United States v. Butler, 25 Fed.Cas. 213, 217, case no. 14,700 (C.C.D.S.C. 1877).

213 United States v. Gale, 109 U.S. 65, 67, 73, 3 S.Ct. 1, 27 L.Ed. 857 (1883).

214 17 Stat. 15. But it was for some unexplained reason placed in the Revised Statute two years later.

In 1909 the Supreme Court held that a government employee even though not salaried could not serve on a jury even though the case was tried in the District of Columbia.²¹⁵ Under the common law one was not a competent juror who was the master, servant, steward, attorney of either party.²¹⁶ Statutory provisions not inconsistent with this rule do not strike it down. The common law applied in the District of Columbia, and state law in other federal districts. The prospective juror could be challenged for principal cause as an absolute disqualification of the juror. In this case the defendant so challenged, but his challenge was overruled. In such a case there is implied bias. The juror might fear injury if the verdict went against the government. In 1936 the Supreme Court upheld a statute permitting government employees to serve on juries.²¹⁷ It has been held that government employees in the Canal Zone may serve as trial jurors.²¹⁸ The Canal Zone Act made provision for their service and did not disqualify employees or tenants of the government.

215 Crawford v. United States, 212 U.S. 183, 192, 29 S.Ct. 260, 53 L.Ed. 465, 15 Ann.Cas. 392 (1909). Under the statute he was exempt from jury service, but was not disqualified. The Court reversed the Court below. See 30 App.D.C. 1, 13 (1907), one judge dissenting. See contra; United States v. Lee, 4 Mackey, D. C., 489, 496 (1886); United States v. Barber, 21 D.C. 456, 471 (1893).

216 Ibid., 212 U.S. 195, 29 S.Ct. 260.

217 United States v. Wood, 299 U. S. 123, 57 S.Ct. 177, 81 L.Ed. 78 (1936).

218 Schackow v. Government of the Canal Zone, 108 F.2d 625, 626 (5th Cir. 1939).

That a person who served on a jury was exempt does not disqualify him, as he may waive his privilege. It is not ground for a new trial.²¹⁹ If he claims his exemption, the court should excuse him.²²⁰ That a prospective juror as a deputy constable is exempt from jury service under state law does not disqualify him as a juror.²²¹ Exemption under a state statute from further jury service after discharge from jury service within a year is a personal exemption of the juror, and cannot be invoked by the defendant.²²²

219 United States v. Lee, 4 Machey D.C. 489, 496 (1886). The juror was an employee of the District of Columbia.

220 United States v. Barber, 21 D. C. 456, 471 (1893).

221 Nick v. United States, 122 F.2d 660, 670, 138 A.L.R. 791 (8th Cir. 1941) cert. denied 314 U.S. 687, 62 S.Ct. 302, 86 L.Ed. 550.

222 White v. United States, 16 F. 2d 870, 871 (9th Cir. 1926) cert. denied 274 U.S. 745, 47 S.Ct. 660, 71 L.Ed. 1326. Moreover "discharged" means one discharged from the panel or from term, and not from a case at the close of a trial.

When during a trial it occurs that a juror, contrary to his statements on the voir dire, is disqualified because he had been convicted of a felony, and the defendant had an opportunity to have him excused but the trial began anew and his counsel raised no objection at the time, it is too late to complain after a verdict of guilty has been rendered.²²³ A jurors disqualification as an unpardoned convict was waived by proceeding to trial after learning thereof.²²⁴ Even though state law does not provide for waiver, state law does not apply as to waiver, but rather the common law which permits it. Neither new trial nor writ of error coram nobis would lie. Objection should be made before verdict even though the objection was previously unknown.

223 Queenan v. Territory of Oklahoma, 190 U.S. 548, 551, 23 S.Ct. 762, 47 L.Ed. 1175 (1903). This was followed in Strang v. United States, 45 F.2d 1006 (5th Cir. 1930). In the latter case state law permitted challenge for cause, and did not lay down an absolute disqualification.

224 Strang v. United States, 53 F. 2d 820 (5th Cir. 1931).

An objection to a juror on the grant that an information had been lodged against him in the state court thus disqualifying him under state law comes too late when made after verdict, and the trial judge could in his discretion deny a new trial.²²⁵ It made no difference that the defendant discovered the fact after the verdict. Counsel for defendant had failed to ask any questions which would elicit the information. The juror was not shown to be guilty of fraud. Likely the defendant would not have objected at the time even though he had known the facts.

225 Bush v. United States, 16 F.2d 709, 711 (5th Cir. 1927).

Where the fact of a juror's conviction of violating the National Prohibition Act, 27 U.S.C.A. § 1 et seq., furnished objection to him as a qualified juror, such objection was merely propter defectum, and is not ground for a new trial.²²⁶ Furthermore, a qualification which could have been discovered before verdict by reasonable diligence may not be used as a ground for new trial. An alternate juror was available. A federal statute now makes a person incompetent to serve as a juror if "he 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 by pardon or amnesty."²²⁷

226 Spivey v. United States, 109 F. 2d 181, 185 (5th Cir. 1940) cert. denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401.

227 28 U.S.C.A. § 1861.

Where bias and prejudice of a prospective juror are present there may be a challenge for favor.²²⁸ Where a challenge for favor lies, but the challenge was made for cause, and the court sustained the challenge, the Supreme Court declined to reverse.

228 Reynolds v. United States, 98 U.S. 145, 157, 25 L.Ed. 244 (1878).

A talesman who is the son of a stockholder in a corporation is disqualified where the corporation was the victim of the crime, namely embezzlement.²²⁹ The Court of Appeals will reverse even though the defendant challenged for cause without stating the specific grounds of his challenge.

229 Miller v. United States, 38 App. D.C. 361, 363, 40 L.R.A., N.S., 973 (D.C. Cir. 1912).

A person may serve as a juror even though he is a brother-inlaw or a nephew of the deputy marshal.²³⁰ Relationship to a government officer does not disqualify a juror. When talesmen are summoned it is bad practice for a deputy marshal to pack the jury with relations notified by telephone or otherwise, instead of selecting them from bystanders. But it is not necessarily ground for new trial. The question of the qualifications of a juror rests largely in the discretion of the trial court.

230 Ippolito v. United States, 108 F.2d 668, 669 (6th Cir. 1940).

The fact that a prospective juror has a stenographer who was a public stenographer and who at one time had had a desk room in an office with the assistant United States attorney, and that the juror had met the assistant United States attorney and had occasionally seen him but had never had any business or intimate relations with him, does not disqualify the juror.²³¹

231 Billington v. United States, 15 F.2d 359 (6th Cir. 1926). See 79 A.L.R. 276.

The objection to a juror may be so serious as to warrant a mistrial. It can be made after the swearing of the jury. On the third day of a trial of several defendants for conspiracy it was discovered that one of the defendants was a brother of a juror's uncle by marriage, which fact was not known to the juror, the government, or the trial judge. It was held that a mistrial should be declared, but that the defendants could be tried again as there had been no jeopardy.²³² It made no difference that the relationship did not as a matter of law disqualify the juror for consanguinity or affinity. It would be hard for the juror to be impartial as possibly he would not wish to bring distress in his aunt's household; and the other jurors might distrust such juror and be led to convict because of that fact.

232 United States v. McCunn, 36 F. 2d 52 (S.D.N.Y. 1929).

The government may challenge for cause where the prospective juror is a client of the attorney for the defendant.²³³

233 Frank v. United States, 59 F. 2d 670, 676 (9th Cir. 1932).

In 1807 Circuit Justice Marshall held that persons who had deliberately formed and delivered an opinion on the guilt of a defendant, are disqualified to serve as jurors.²³⁴ An opinion formed and delivered not upon the full case, but upon a point so essential as to go far towards a decision of the whole case, and to have a real influence on the verdict, will disqualify the person as a juror. The attorney for the defendant had relied on the constitutional guaranty of an "impartial jury".

234 United States v. Burr, 25 Fed. Cas. 49, 50, case no. 14,692g (C.C.D. Va. 1807). See the examination of the jurors in the main case United States v. Burr, 25 Fed.Cas. 55, 76-87, case no. 14,693 (C.C.D.Va. 1807). For a case in accord see United States v. Hanway, 26 Fed.Cas. 105, 107, 110, case no. 15,299 (C.C.E.D. Pa. 1851). Opinion was by Circuit Justice Grier. Chief Justice Waite cited the case in Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244 (1878).

In an early case Justice Story stated for the Supreme Court: "The law presumes that every juror sworn in the case is indifferent and above legal exception; for otherwise he may be challenged for cause."²³⁵ It is "a good cause of challenge to a juror that he has a bias or prejudice against the prisoner, and does not stand indifferent towards him touching his guilt or innocence of the crime with which he is charged. Or if he has made up his mind, or expressed an opinion on the subject."²³⁶

235 United States v. Marchant and Colson, 12 Wheat. 480, 482, 6 L. Ed. 700 (1827).

236 United States v. Wilson, 28 Fed. Cas. 699, 702, case no. 16,730 (C. C.E.D.Pa. 1830). See also Rosencranz v. United States, 155 Fed. 38, 43 (9th Cir. 1907).

Where there are separate trials on a joint indictment, it is no cause for challenge that a juror was sworn on the first trial and found a verdict of guilty, though it is good cause to submit his indifference to triers.²³⁷

237 United States v. Wilson, 28 Fed. Cas. 699, 702, case no. 16,730 (C. C.E.D.Pa. 1830). The triers were the first two jurors sworn.

Where a juror testified on his voir dire that he believed that he had formed an opinion, although not on evidence produced in court, as to the guilt or innocence of the defendant, but that he had not expressed it, and did not think that it would influence his verdict, and he was thereupon challenged by the defendant for cause and his challenge was overruled, the Supreme Court declined to reverse.²³⁸ The opinion must be founded on some evidence, and must not be a mere impression. A mere hypothetical opinion is not ground for challenge for cause. The appellate court will hesitate to review the decision of the trial court except for manifest error.

238 Reynolds v. United States, 98 U.S. 145, 155, 25 L.Ed. 244 (1878). See in accord Spies v. People of State of Illinois, 123 U.S. 131, 179, 8 S.Ct. 22, 31 L.Ed. 80 (1887). See 60 Col. L. Rev. 349, 356-360 (1960).

In one case a prospective juror had discussed the case with a former attorney of the defendant, and became prejudiced against the defendant. Although he did not have a fixed opinion as to the defendant's guilt, he stated that his mind was "strongly colored" in the matter, and that his prejudice was so strong that it would require evidence to remove it, and would perhaps, in some degree shape his convictions or judgment. In reply to a question whether he would return a verdict solely on the evidence, he said: "I am not infallible * * * I think I would. * * * I feel that I might." It was held error to overrule a challenge for bias.²³⁹ If the testimony leaves a reasonable doubt as to impartiality the defendant should be given the benefit of the doubt.²⁴⁰

239 Williams v. United States, 93 Fed. 396, 397, 398 (9th Cir. 1899). The decision was two to one. The dissent stressed the discretion of the trial judge.

240 Ibid., 93 Fed. 400.

Where a prospective juror had a fairly well-fixed opinion based on conversations he had with persons who had been present in the court room and witnesses at a former trial of the same case and knew the facts, a challenge for cause should be sustained.²⁴¹ A challenge during the trial after testimony had been introduced to a juror who testified for the government in another case was properly disallowed, if counsel for defendant should have known of his testimony in such other case before accepting him, and if the questions on his voir dire were not such as naturally to elicit such facts.²⁴² But in a contrary situation the defendant could properly complain. The court suggested that the defendant move for a new trial despite the affirmance.

241 Dolan v. United States, 123 Fed. 52, 55 (9th Cir. 1903); Frank v. United States, 59 F.2d 670, 675 (9th Cir. 1932).

242 Wolf v. United States, 292 Fed. 673, 678 (6th Cir. 1923).

A Court of Appeals has held that it was not reversible error to refuse to disqualify a prospective juror who stated that he would pay more attention to the testimony of an officer where the conviction was based on the testimony of witnesses who were not officers.²⁴³ But accepting such jurors is unwise. Furthermore it is doubtful whether voir dire examination on such an issue is proper.

243 Billington v. United States, 15 F.2d 359 (6th Cir. 1926).

Bias warranting of a new trial is not made out merely on evidence that the jury foreman was unfriendly to two of the defendants because one of them had several times arrested his brother and the other had testified against him, when the foreman denied any bias, and the defendants knowing all the facts accepted the juror without challenge.²⁴⁴

244 Lancaster v. United States, 39 F.2d 30, 33 (5th Cir. 1930).

A new trial was granted where, before trial, a juror had expressed the opinion that the defendant, charged with treason, should be hanged.²⁴⁵ Discovery of bias occurred after verdict.

245 United States v. Fries, 9 Fed. Cas. 826, 918, case no. 5,126 (C.C. D.Pa. 1799).

It is good cause for challenge that the prospective juror has conscientious scruples about finding a verdict which may lead to capital punishment.²⁴⁶ The fact, appearing by affidavits that a juror in a capital prosecution against an Italian, resulting in a conviction, made general statements months before trial showing strong prejudice against all Italians, but having no reference to the particular case, is not ground for appellate review of the order of the trial court after a hearing on the affidavits denying a new trial.²⁴⁷ At the voir dire the juror had denied any prejudice against Italians. But it would be better for the trial court at the hearing on the motion for new trial to call upon the impeached juror for an express denial of the particular charge.

246 United States v. Cornell, 25 Fed. Cas. 650, 655, case no. 14,868 (C.C. D.R.I. 1820); United States v. Wilson, 28 Fed.Cas. 699, 701, case no. 16,730 (C.C.E.D.Pa. 1830); Logan v. United States, 144 U.S. 263, 298, 12 S.Ct. 617, 36 L.Ed. 429 (1892). See the cases cited in United States v. Puff, 211 F.2d 171, 182-184 (2d Cir. 1954).

247 Paolucci v. United States, 30 App.D.C. 217, 221, 12 Ann.Cas. 920 (D.C. Cir. 1907) cert. denied 208 U.S. 617, 28 S.Ct. 568, 52 L.Ed. 646.

With respect to bias from reading newspaper accounts about a defendant, it was held in a murder prosecution where the trial court in examination of prospective jurors was careful to exclude all who admitted any bias as a result of having read local newspaper articles as to the defendant's alleged criminal activity prior to the killing for which he was on trial and accepted only those who declared on their oath that they could and would give the defendant a fair and impartial trial, no reversible error appeared.²⁴⁸

248 Medley v. United States, 155 F. 2d 857, 859 (D.C. Cir. 1946) cert. denied 328 U.S. 873, 66 S.Ct. 1377, 90 L.Ed. 1642.

In a prosecution for libel the court refused to reject a juror who said that he had read the books and had made up his mind that it was libellous, but had not made up his mind as to whether or not the defendant was the publisher of the libel.²⁴⁹ The only question which the court can put to a juror challenged for favor is whether he had formed an opinion on the charge against the defendant; and it is improper to ask whether he had ever formed an opinion on the book in which the libellous passages had occurred.

249 United States v. Callender, 25 Fed.Cas. 239, 244, case no. 14,709 C.C.D.Va. 1800). On impeachment charges for this decision, Justice Chase was found not guilty by 24 Senators and guilty by 10. See United States v. Burr, 25 Fed.Cas. 49, 50 note 1, case no. 14,692g (C.C. D.Va. 1807). See also United States v. Burr, 25 Fed.Cas. 55, 57, case no. 14,963 (C.C.D.Va. 1807).

A juror who has a conscientious belief that polygamy is rightful may be challenged by the government for cause on a trial for polygamy.²⁵⁰

250 Reynolds v. United States, 98 U.S. 145, 147, 157, 25 L.Ed. 244 (1878); Miles v. United States, 103 U.S. 304, 310, 26 L.Ed. 481 (1880).

Jurors were competent to sit in a liquor case, though they had sat in other liquor cases against other defendants, in which the same government agents were witnesses where they stated on their voir dire examination that they could try the case fairly.²⁵¹ The trial judge could properly reject a challenge to the array in this language: "Defendants challenge the array of this jury, as impaneled for cause."

251 Haussener v. United States, 4 F.2d 884, 886 (8th Cir. 1925).

A Court of Appeals has held that mere membership in the Anti-Saloon League does not necessarily disqualify a juror to sit in a liquor prosecution, unless the case is being prosecuted or promoted by a local association in which he is a member, or he has contributed funds in furtherance of the prosecution, or is liable to assessment for the expenses thereof.²⁵² A person contributing to the Anti-Saloon League is not disqualified to serve as a juror in a prohibition case where he states that he would serve as fairly in such cause as in any other case.²⁵³

252 Remus v. United States, 291 Fed. 501, 507 (6th Cir. 1923).

253 Ungerleider v. United States, 5 F.2d 604, 605 (4th Cir. 1925) cert. denied 269 U.S. 574, 46 S.Ct. 101, 70 L.Ed. 419.

A juror is not disqualified because he had been served during the trial with a complaint in an action to close certain premises of which he was a landlord for a violation of the National Prohibition Act by a tenant.²⁵⁴ The juror stated that he had evicted the tenant and terminated the lease before the complaint was served. The old common law rule disqualifying a landlord of a criminal defendant tenant did not apply, but, rather state law, and state law did not disqualify. Had the juror been served with the complaint before trial he could not have been challenged for cause and rejected.

254 Vause v. United States, 53 F.2d 346, 354 (2d Cir. 1931).

A juror may be competent to serve in a lottery trial even though he has a prejudice against lotteries.²⁵⁵ The trial judge may deny the defendant the right to ask on voir dire whether the juror is prejudiced against lotteries. A juror has the right to be prejudiced in favor of law enforcement. In a prosecution for violation of the lottery laws by promotion of the numbers game exclusion from the jury, on objection by the government, of persons who had played the numbers game within the two preceding years was in the trial court's discretion.²⁵⁶ It made no difference whether the challenge was for cause or for favor. Such proceeding did not result in increasing the number of peremptory challenges of the government. It is enough that an impartial jury is ultimately impanelled.

255 United States v. Noelke, 1 Fed. 426, 433 (C.C.S.D.N.Y. 1880). See in accord United States v. Duff, 6 Fed. 45, 48 (C.C.S.D.N.Y. 1881); United States v. Borger, 7 Fed. 193, 196 (C.C.S.D.N.Y. 1881).

256 Smith v. United States, 72 App. D.C. 187, 112 F.2d 217, 218 (D.C. Cir. 1940); Shettel v. United States, 72 App.D.C. 250, 113 F.2d 34, 36 (D.C. Cir. 1940).

Where in a prosecution for draft evasion, a juror stated on voir dire that he had formed no opinion as to the defendant's guilt, but gave a negative answer as to whether he could judge the case as fairly as if he did not have two sons in military service, such juror could be properly accepted for service.²⁵⁷ The defendant's did not object at the time.

257 Bratcher v. United States, 149 F.2d 742, 745 (4th Cir. 1945) cert. denied 325 U.S. 885, 65 S.Ct. 1580, 89 L.Ed. 2000.

The right to an impartial trial does not require that the jury contain members of a particular class to which a defendant belongs. Hence a Socialist is not denied his constitutional right because the jury was composed of members of other parties and of property owners.²⁵⁸ But the systematic and arbitrary exclusion of Socialists solely because they are such would violate a Socialist defendant's rights.

258 Ruthenberg v. United States, 245 U.S. 480, 481, 38 S.Ct. 168, 62 L.Ed. 414 (1918).

In a civil case it was held that when a juror had declared himself in favor of one of the parties before the trial and there is evidence to show that he did so, the affidavits of the other jurors that he made similar declarations in the jury room are admissible.²⁵⁹ The juror had concealed the fact of his prejudgment from the losing party. A new trial was granted. The court conceded that whether a juror may disqualify himself by anything he says after the trial has begun is extremely doubtful.²⁶⁰

259 Hyman v. Eames, 41 Fed. 676 (C.C.D.Col. 1890).

260 For discussion of new trials granted for misconduct of jurors during the trial see Orfield, "New Trial in Federal Criminal Cases," 2 Vill. L. Rev. 293, 307-312 (1957).

Where on a motion for new trial on the ground that three of the jurors had prior to the trial expressed an opinion prejudicial to the defendants, the jurors named presented counter affidavits showing no prejudice, it was not reversible error to deny a new trial.²⁶¹

261 Albizu v. United States, 88 F. 2d 138, 141 (1st Cir. 1937) cert. denied 301 U.S. 707, 57 S.Ct. 940, 81 L.Ed. 1361.

As to review by the appellate court of the trial judge's ruling on the qualification of a prospective juror the Supreme Court has stated: "The finding of the trial court upon that issue ought not to be set aside by a reviewing court, unless the error is apparent * * *. It must be made clearly to appear that upon the evidence the court ought to have found the juror had formed such an opinion that he could not in law be deemed impartial. The case must be one in which it is manifest the law left nothing to the conscience or discretion of the court."²⁶²

262 Reynolds v. United States, 98 U.S. 145, 156, 25 L.Ed. 244 (1878). This was cited favorably in United States v. Barber, 21 D.C. 456, 460 (1893); Holt v. United States, 218 U.S. 245, 248, 31 S.Ct. 2, 54 L.Ed. 1021, 20 Ann.Cas. 1138 (1910). See also Wilkes v. United States, 291 Fed. 988, 990 (6th Cir. 1923) cert. denied 263 U.S. 719, 44 S.Ct. 181, 68 L.Ed. 523; Hopt v. People of State of Utah, 120 U.S. 430, 432, 7 S.Ct. 614, 30 L.Ed. 708 (1887); American Tobacco Co. v. United States, 147 F.2d 93, 118 (6th Cir. 1944) affirmed 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946).

Habeas corpus has been denied on an allegation that a juror was disqualified. Where a juror in good faith described himself as a farmer and merchant and it did not appear that the juror by reason of his casual employment in a branch post office operated principally by his brother though owned by him, was disqualified for either cause or favor, and was not biased, the defendant's constitutional right to trial by an impartial jury was not violated, and habeas corpus would not be granted.²⁶³

263 Baker v. Hudspeth, 129 F.2d 779, 783 (10th Cir. 1942).

Suppose a mistrial is declared because of the presence of an unqualified juror. Can the defendant plead double jeopardy if he is tried again? The federal cases hold that he cannot. In an early case it was held that the withdrawal of a case from the jury after the jury had been impaneled and sworn and some of the witnesses had been examined, upon a showing of the United States Attorney that one of the jurors had a bias in the case, was not a basis for a plea of double jeopardy when the defendant was again tried.²⁶⁴ Though neither party may challenge after a juror is sworn a mistrial may be declared in the court's discretion after investigation of the facts. A misdemeanor was involved. It was not clear that the bias existed at the time of the voir dire. Later the Supreme Court held that the plea of double jeopardy should not be sustained when a mistrial was declared on motion of the government over the protest of the defendant after the case had come on for trial, when it was shown that one juror was acquainted with the defendant although on his voir dire he had denied such acquaintance.²⁶⁵ The same result was reached in a case where it was discovered during the trial that a juror had served on the grand jury which returned the indictment.²⁶⁶ The defendant objected to the trial continuing with such juror on the jury, yet did not consent to the discharge of the jury.

264 United States v. Morris, 26 Fed. Cas. 1323, 1326 case no. 15,815 (D. Mass. 1851). The opinion was by Circuit Justice Curtis. See 14 L.R. A., N.S., 548.

265 Simmons v. United States, 142 U.S. 148, 154, 12 S.Ct. 171, 35 L.Ed. 968 (1891).

266 Thompson v. United States, 155 U.S. 271, 274, 15 S.Ct. 73, 39 L.Ed. 146 (1894).

Peremptory Challenges

The Supreme Court has stated by Mr. Justice Day: "There is nothing in the Constitution of the United States which requires the Congress to grant peremptory challenges to defendants in criminal cases; trial by an impartial jury is all that is secured. The number of challenges is left to be regulated by the common law or the enactments of Congress."²⁶⁷ Congress can therefore treat several defendants as one party for the purposes of peremptory challenge.

267 Stilson v. United States, 250 U. S. 583, 586, 40 S.Ct. 28, 30, 63 L. Ed. 1154 (1919).

Mr. Justice Field has assigned reasons for the utility of perremptory challenges: "Experience has shown that one of the most effective means to free the jury box from men unfit to be there is the exercise of the peremptory challenge. The public prosecutor may have the strongest reasons to distrust the character of a juror offered, from his habits and associations, and yet find it difficult to formulate and sustain a legal objection to him. In such cases, the peremptory challenge is a protection against his being accepted."²⁶⁸

268 Hayes v. Missouri, 120 U.S. 68, 70, 7 S.Ct. 350, 351, 30 L.Ed. 578 (1887).

Justice Harlan has stated: "The right to challenge a given number of jurors without showing cause is one of the most important of the rights secured to the accused. * * * He may, if he chooses, peremptorily challenge `on his own dislike without showing any cause.' He may exercise that right without reason * *, arbitrarily and capriciously. * * * Any system for the impaneling of a jury that * * * embarrasses the full, unrestricted exercise by the accused of that right must be condemned."²⁶⁹

269 Pointer v. United States, 151 U. S. 396, 408, 14 S.Ct. 410, 414, 38 L. Ed. 208 (1894).

The Court of Appeals of the First Circuit has stated that the right of peremptory challenge "is among the most useful weapons of defense put in the hands of an accused person. It is the only method of cutting off underground, malevolent currents, visible at some times to no one except the accused and his counsel, and sometimes not even to both of them. Without its uncontrolled exercise, justice could be absolutely unobtainable in many cases."²⁷⁰

270 Betts v. United States, 132 Fed. 228, 235 (1st Cir. 1904).

In 1869 District Judge Deady pointed to the trend to increase the number of peremptory challenges: "In modern times, in most of the United States, the practice of law has gone to the other extreme, so that the number of peremptory challenges allowed a defendant enables him, in many cases, to form a jury that is morally certain to acquit or at least to disagree."²⁷¹

271 United States v. Randall, 27 Fed.Cas. 696, 705, case no. 16,118 (D.C.D.Ore. 1869).

Under the Act²⁷² of April 30, 1790 a defendant in treason cases had 35 peremptory challenges, and in capital cases 20.²⁷³ In offenses made capital case since the act of 1790 the defendant is entitled to 35 challenges, according to the rules of the common law.²⁷⁴

272 1 Stat. 119. This was the common law rule. United States v. Shackleford, 18 How. (59 U.S.) 588, 590, 15 L.Ed. 495 (1855). But compare United States v. Randall, 27 Fed.Cas. 696, 705, case no. 16,118 (D.Ore. 1869).

273 See United States v. Russel, 27 Fed.Cas. 918, case no. 16,209 (C.C. D.Pa. 1806); United States v. Burr, 25 Fed. 55, 83, case no. 14,693 (C.C. D.Va. 1807); United States v. Dow, 25 Fed.Cas. 901, case no. 14,990 (C. C.D.Md. 1840).

274 United States v. Johns, 26 Fed. Cas. 616, 617, case no. 15,481 (C.C.D. Pa. 1806). The offense was made a crime in 1805. In United States v. Russel, 27 Fed.Cas. 918, case no. 16,209 (C.C.D.Pa. 1806) only twenty challenges were allowed as to murder on the high seas, as the offense was expressly set forth in the penal law. The offense was a crime in 1790. See also United States v. Dow, 25 Fed.Cas. 901, case no. 14,990 (C.C.D.Md. 1840).

The statute²⁷⁵ of 1790 while granting peremptory challenges to the defendant granted none to the government.²⁷⁶ But the statute²⁷⁷ of 1865, as amended²⁷⁸ in 1872 gave such challenges to the government.

275 1 Stat. 119.

276 Sawyer v. United States, 202 U. S. 150, 159, 26 S.Ct. 575, 50 L.Ed. 972, 6 Ann.Cas. 269 (1906).

277 13 Stat. 500.

278 17 Stat. 282.

In 1802 it was held that peremptory challenges of a defendant were possible only in capital cases.²⁷⁹ It would not lie in a larceny prosecution. In 1821 it was held that a defendant indicted for horsestealing was not entitled to any peremptory challenges as the offense was not capital.²⁸⁰

279 United States v. Carrigo, 25 Fed.Cas. 310, case no. 14,735 (C.C. D.C. 1802). See also United States v. McPherson, 26 Fed.Cas. 1137, case no. 15,703 (C.C.D.C. 1808).

280 United States v. Krouse, 26 Fed. Cas. 815, case no. 15,544 (C.C.D.C. 1821). Compare United States v. Black, 24 Fed.Cas. 1155, case no. 14,601 (C.C.D.C. 1819).

In a case before a circuit court consisting of Circuit Justice Nelson and a district judge, Circuit Justice Nelson held that a qualified peremptory challenge, that is, a right to set aside a juror without challenging him for principal cause or to the favor, and to have him finally excluded from the jury unless the panel is exhausted by the challenges of the defendant, exists in favor of the government.²⁸¹ The act of 1840²⁸² applied state law only as to the manner of selecting the jury, and not to peremptory challenge or challenges for cause, hence the common law applied. But District Judge Betts thought that the 1840 act applied state law present and future to the right of challenge and state law did not recognize the qualified right of peremptory challenge.²⁸³ The common law did not recognize such right and such right was based merely on a construction of 33 Edw. 1.

281 United States v. Douglass, 25 Fed.Cas. 896, 897, case no. 14,989 (C.C.S.D.N.Y. 1851). He relied on United States v. Marchant and Colson, 12 Wheat. 480, 484-485, 6 L. Ed. 700 (1827). See also United States v. Wilson, 28 Fed.Cas. 699, 701, case no. 16,730 (C.C.E.D.Pa. 1830); Hayes v. State of Missouri, 120 U.S. 68, 71, 7 S.Ct. 350, 30 L. Ed. 578 (1887).

282 5 Stat. 394.

283 25 Fed.Cas. 898, case no. 14,989. The case of United States v. Marchant and Colson did not directly involve the question.

In 1852 a circuit court held that peremptory challenges was possible only in capital cases, even though they were allowed in other cases by state law.²⁸⁴ Thus no peremptory challenge was available although the penalty for the offense involved was from ten to twenty-one years.

284 United States v. Cottingham, 25 Fed.Cas. 673, case no. 14,872 (C.C. N.D.N.Y. 1852). See also United States v. Reed, 27 Fed.Cas. 727, 731 note 1, case no. 16,134 (C.C.N.D.N.Y. 1852).

In 1855 the Supreme Court held that the Act²⁸⁵ of 1840 conferred on the federal courts the power to make all necessary rules and regulations for conforming the impaneling of juries to the laws and usages of the states. This power includes that of regulating the challenges of jurors, whether peremptory or for cause except as to treason and other capital offenses.²⁸⁶ As to them the act²⁸⁷ of 1790 regulated the right of peremptory challenges, and therefore it could not be taken away. If a federal court did not adopt a state rule as to misdemeanors, there was no right of peremptory challenges for misdemeanors, as there was none at common law. Moreover the government had no qualified right to challenge unless the court had adopted state law permitting it. In a subsequent case it was held that where a federal court had not adopted the state law as to peremptory challenges a federal misdemeanant had no peremptory challenges.²⁸⁸

285 5 Stat. 394.

286 United States v. Shackleford, 18 How. (59 U.S.) 588, 15 L.Ed. 495 (1855). This case was followed in Brewer v. Jacobs, 22 Fed. 217, 234 (W.D.Tenn. 1884).

287 1 Stat. 113, 119.

288 United States v. Devlin, 25 Fed. Cas. 840, case no. 14,953 (C.C.E.D. N.Y. 1868). A New York statute of 1867 had not been adopted by the federal court "by rule or in practice."

An act²⁸⁹ of March 3, 1865 made a radical change as to the number of peremptory challenges and as to what offenses permitted such challenges. In a capital case the defendant shall have twenty and the government five. But in a trial for any other offense in which the right of peremptory challenge now exists, the defendant shall be entitled to ten and the United States to two peremptory challenges. But the statute was found to be nugatory as to noncapital cases because prior to the statute there was no right to peremptory challenge in noncapital cases.²⁹⁰ A right dependent merely on a rule of court and not a statute is not a right.

289 13 Stat. 500.

290 United States v. Randall, 27 Fed.Cas. 696, 705, case no. 16,118 (D.Ore. 1869). The defendant was here given six peremptory challenges under a rule of court adopting the Oregon State Law. Sentence was to twelve years of hard labor.

An act²⁹¹ of June 8, 1872 provided that "when the offence charged be treason or a capital offence, the defendant shall be entitled to twenty and the United States to five peremptory challenges. On the trial of any other felony, the defendant shall be entitled to ten and the United States to three peremptory challenges and in all other cases, civil and criminal, each party shall be entitled to three peremptory challenges." It was held that the offense of uttering and passing counterfeit money was not a felony within the terms of the Statute.²⁹² The statute making this act a crime did not declare it to be a felony, and the practice in this district had been not to allow ten challenges where the crime charged was not by the statute creating it, declared to be a felony. The common law must be looked to, and at common law a felony was a crime which worked a forfeiture of goods and lands. Congress may make offenses felonies by declaring them to be such. But Congressional practice has been to treat a crime as a misdemeanor in the absence of a declaration that they are felonies. Federal crimes are felonies in three cases: (1) where the statute expressly or implicitly makes the crime a felony; (2) where Congress does not define the crime, but punishes it by its common law name, and at common law it was a felony; and (3) where Congress adopts a state law as to a crime, and under such law it was a felony. Where an offense is subordinate to a principal offense which is made a misdemeanor, such an offense will be treated also as a misdemeanor hence the defendant will have only three peremptory challenges.²⁹³ In this case smuggling was expressly made a misdemeanor and the defendant was charged with receiving smuggled goods which was not expressly made a misdemeanor. It made no difference that the penalty was a fine of $50.00 to $5,000 or imprisonment up to two years or both. Under another statute imprisonment for more than one year might be in a penitentiary, but this too made no difference. The court pointed out that neither death nor forfeiture was the penalty. Even though the smuggled goods might be forfeited, this made no difference, as they may not be the property of the defendant; and forfeiture of the thing which is the subject of the crime, is not equivalent to forfeiture of the lands or goods of the defendant. Where the prosecution is for robbery, a felony is involved because it was a felony at common law.²⁹⁴ Hence the defendant is entitled to ten challenges, and is entitled to a new trial where he was convicted after a refusal to allow ten challenges.

291 17 Stat. 282.

292 United States v. Coppersmith, 4 Fed. 198, 199 (C.C.W.D.Tenn. 1880). See in accord United States v. Daubner, 17 Fed. 793, 794 (E.D. Wis. 1883).

293 Reagan v. United States, 157 U.S. 301, 304, 15 S.Ct. 610, 39 L.Ed. 709 (1895).

294 Harrison v. United States, 163 U.S. 140, 142, 16 S.Ct. 961, 41 L. Ed. 104 (1896).

In 1877 a federal circuit court held that as the government is allowed the right of peremptory challenge it cannot ask a juror to stand aside until the panel is exhausted before challenging for cause or peremptorily.²⁹⁵ This was said to be the effect of 1865 and 1872 statutes giving the government the right of peremptory challenge.

295 United States v. Butler, 25 Fed. Cas. 213, 217, case no. 14,700 (C.C. D.S.C. 1877).

As late as 1906 the Supreme Court held that the government has the right to exercise a conditional or qualified mode of challenging jurors permitted by the state law where the court sat even though the federal statutes of 1865 and 1872 gave the government the right of peremptory challenge.²⁹⁶ But the right must be exercised under the supervision of the court, which must not permit it to be exercised unreasonably or to the undue prejudice of the defendant. Where the full jury is impaneled before each side has exhausted its peremptory challenges, the trial court may reasonably permit the government to stand jurors aside. The federal court had adopted by order the state practice of North Carolina permitting such challenges.

296 Sawyer v. United States, 202 U.S. 150, 26 S.Ct. 575, 50 L.Ed. 972, 6 Ann.Cas. 269 (1906). Mr. Justice White dissented without opinion.

In 1827 Justice Story speaking for the Supreme Court stated: "The crimes act of 1790, c. 9, provides in the 29th section, for the right of peremptory challenges in capital cases; and this right to the extent of the statute, must in all cases, be allowed the prisoners, whether they are tried jointly or separately. Upon a joint trial, each may challenge his full number, and every juror challenged as to one, is withdrawn from the panel as to all the prisoners on the trial, and thus, in effect, the prisoners in such case possess the power of peremptory challenge to the aggregate of the number, to which they are respectively entitled. This is the rule clearly laid down by Lord Coke, Lord Hale and Sergeant Hawkins, and, indeed, by all the elementary writers."²⁹⁷

297 United States v. Marchant and Colson, 12 Wheat. 480, 6 L.Ed. 700 (1827). For the case below see United States v. White, 28 Fed.Cas. 580, case no. 16,682 (C.C.D.Mass. 1826). For an earlier similar holding by Circuit Justice Washington, see United States v. Haskell, 26 Fed.Cas. 207, 212 case no. 15,321 (C.C.E.D.Pa. 1823).

Defendants jointly indicted cannot insist on separate trial on any theory that they have the right to select their jury out of the whole panel, and that as, upon a joint trial, one may desire to retain a juror who is challenged by a co-defendant. As Justice Story has stated: "The right of peremptory challenge is not, of itself, a right to select, but a right to reject jurors. * * * What jurors in particular shall try the case, depends upon the order in which they are called; and the result is a mere incident following the challenges, and not the absolute selection of the prisoner, resulting from his power of challenge."²⁹⁸

298 Ibid., 12 Wheat. 482.

Under the 1872 statute²⁹⁹ where several defendants are indicted for a felony, they are deemed a single party for the purposes of peremptory challenges.³⁰⁰ This was true although under the 1790 statute each defendant was entitled to the full number of challenges. The 1872 statute was not harsh as the defendants had a total of 20 challenges and the government only five. Thus the defendants had more challenges than in a majority of the states. In a case involving fourteen defendants a trial court could after the defendants disagreed on exercise of their challenges give each defendant one challenge even though the group was entitled only to ten.³⁰¹ The court did not decide whether or not a refusal of the defendants to join might operate as a waiver of all the challenges of the group. The fact that the defendants are represented by different counsel does not increase the number of peremptory challenges. The issue should be raised in the trial court and if it is not, it need not be considered on appeal.³⁰²

299 17 Stat. 282.

300 United States v. Hall, 44 Fed. 883, 10 L.R.A. 323 (W.D.Ga. 1890). See in accord: Schwartzberg v. United States, 241 Fed. 348, 350 (2d Cir. 1917); Stilson v. United States, 250 U.S. 583, 585, 40 S.Ct. 28, 63 L.Ed. 1154 (1919); Schaefer v. United States, 251 U.S. 466, 470, 40 S.Ct. 259, 64 L.Ed. 360 (1920); Solomon v. United States, 297 Fed. 82, 85 (1st Cir. 1924); Holmes v. United States, 134 F.2d 125, 129 (8th Cir. 1943) cert. denied 319 U.S. 776, 63 S. Ct. 1434, 87 L.Ed. 1722.

301 Schwartzberg v. United States, 241 Fed. 348, 350 (2d Cir. 1917).

302 Holmes v. United States, 134 F.2d 125, 129 (8th Cir. 1943) cert. denied 319 U.S. 776, 63 S.Ct. 1434, 87 L.Ed. 1722. The Court considered the point and found that no error had been committed.

An indictment may charge one defendant with a felony and another with a misdemeanor even though the number of peremptory challenges is different.³⁰³ There could be a severance of the defendants for trial. Or the defendants could all be given the number of challenges which those charged with a felony have in a joint trial.

303 United States v. Lehigh Valley R. Co., 43 F.2d 135, 144 (M.D.Pa. 1930).

The fact that an indictment contains several counts does not increase the number of challenges, even though the different counts charge separate and distinct offenses which may be joined in the same indictment.³⁰⁴ Where an alleged misjoinder of courts is waived by failure to object, this does not increase the number of peremptory challenges.³⁰⁵

304 Nestlerode v. United States. 74 App.D.C. 276, 122 F.2d 56 (D.C. Cir. 1941).

305 Brown v. United States, 56 F.2d 997, 998 (9th Cir. 1932).

The Court of Appeals of the First Circuit held that where several indictments against the same defendant are tried together by the same jury, the defendant retains the full number of peremptory challenges for each indictment.³⁰⁶ While the defendant would not have such a right as to each count in a single indictment, ³⁰⁷ he does as to consolidated indictments. The court relied on the 1813 statute on trial together in civil cases, which is regarded as in effect despite the 1853 statute on consolidation in criminal cases. It followed that if as to one indictment the defendant has three challenges, as to nine he had 27. But the Court of Appeals of the Eighth Circuit held that consolidation of several indictments against the same defendant did not increase his challenges.³⁰⁸ The situation was the same as that of an indictment containing several counts. Moreover a defendant who failed to exercise any of the limited number of challenges allowed him was in no position to complain. Where an indictment for a crime is consolidated with an indictment for another crime without objection by the defendant, he has only the number of peremptory challenges allowed for one indictment.³⁰⁹

306 Betts v. United States, 132 Fed. 228, 234 (1st Cir. 1904). The decision was two to one. The court relied on a civil case. Mutual Life Ins. Company of New York v. Hillmon, 145 U.S. 285, 293, 12 S.Ct. 909, 36 L.Ed. 706 (1891).

307 Ibid., 132 Fed. 237. See also the dissent at 132 Fed. 241. The dissent would treat both cases alike, and allow only one set of challenges.

308 Krause v. United States, 147 Fed. 442, 446 (8th Cir. 1906); Kharas v. United States, 192 Fed. 503, 506 (8th Cir. 1911) cert. denied 229 U.S. 610, 33 S.Ct. 464, 57 L.Ed. 1350. See also Beckett v. United States, 84 F.2d 731, 732 (6th Cir. 1936).

309 Miller v. United States, 38 App. C.C. 361, 368, 40 L.R.A., N.S., 973 (D.C. Cir. 1912). But the court on defendant's request should advise him in advance how many challenges he has.

Where indictments against several defendants are consolidated for trial, this does not increase the number of their challenges.³¹⁰ Even more clearly, when the defendants themselves apply for consolidation and make a written waiver of increased challenges the number of challenges is not increased.³¹¹ If indictments or informations could not be validly consolidated for trial because some of the defendants are different, but the defendants consent to consolidation they must be given separate groups of challenges for each indictment or information consolidated.³¹²

310 Emanuel v. United States, 196 Fed. 317, 320 (2d Cir. 1912).

311 Kettenbach v. United States, 202 Fed. 377, 382 (9th Cir. 1913) cert denied 229 U.S. 613, 33 S.Ct. 772, 57 L.Ed. 1352.

312 Gallaghan v. United States, 299 Fed. 172, 175 (8th Cir. 1924).

The right of peremptory challenges need not be exercised until the opportunity to challenge for cause is offered.³¹³ It would be foolish, however, to challenge peremptorily before challenging for cause.

313 United States v. Butler, 25 Fed. Cas. 213, 217, case no. 14,700 (C.C.D. S.C. 1877).

It has been held on appeal that although the trial judge preliminarily restricted the number of challenges to which the defendant was entitled, he cannot complain on appeal when he does not complain that any juror who tried him was unfair or partial, or that any particular juror would have been peremptorily challenged but for the ruling complained of.³¹⁴ Thus in some cases a denial of peremptory challenge may be harmless error. No other case held similarly. It would seem that denial of peremptory challenges is reversible error, and the defendant should not be required to prove prejudice.

314 Pearce v. United States, 192 Fed. 561 (5th Cir. 1911).

A failure by the defendant to exercise all his peremptory challenges where a challenge for bias, actual or invalid, is overruled, and the juror is peremptorily challenged by the defendant and excused and an impartial and a competent jury is obtained, is not reversible error as there was no injury to the defendant.³¹⁵ Where a defendant's challenge for cause is improperly overruled and his peremptory challenges are exhausted he is entitled to a new trial.³¹⁶ But this is not so if peremptory challenges are not exhausted or the record shows that the juror was excused, even though the record does not show how he was excused.³¹⁷ The court may have excused the prospective juror on its own motion, or on the motion of the government. The Supreme Court has held overruling a challenge for cause in a capital case is not ground for reversal where the defendant excluded by peremptory challenge, and was permitted to exercise 22 challenges although the statute allowed only 20, and the record did not show that any juror who sat on the jury was objectionable in fact.³¹⁸ Where a challenge for cause is improperly rejected and the defendant has exhausted his peremptory challenges he is entitled to an additional peremptory challenge and if it is denied there is reversible error.³¹⁹

315 Hopt v. People of State of Utah, 120 U.S. 430, 436, 7 S.Ct. 614, 30 L.Ed. 708 (1887); Spies v. People of State of Illinois, 123 U.S. 131, 168, 8 S.Ct. 22, 31 L.Ed. 80 (1887). See the cases cited in United States v. Puff, 211 F.2d 171, 185 (2d Cir. 1954).

316 United States v. Davis, 103 Fed. 457, 471 (C.C.W.D.Tenn. 1900); Simpson v. United States, 184 Fed. 817, 819 (8th Cir. 1911).

317 Richards v. United States, 175 Fed. 911, 914 (8th Cir. 1909) cert. denied 218 U.S. 670, 31 S.Ct. 221, 54 L.Ed. 1203.

318 Stroud v. United States, 251 U. S. 15, 20, 40 S.Ct. 50, 64 L.Ed. 103 (1919).

319 Frank v. United States, 59 F. 2d 670, 676 (9th Cir. 1932).

In a case arising in South Carolina the practice was followed that each prospective juror "should be subject first to the challenge of the government, and afterwards of the defence."³²⁰ In the Southern District of New York and in the District of Vermont the government begins.³²¹ Thus the order is in the discretion of the trial court.

320 United States v. Butler, 25 Fed. Cas. 213, 217, case no. 14,700 (C.C. D.S.C. 1877).

321 Emanuel v. United States, 196 Fed. 317, 321 (2d Cir. 1912).

Any doctrine of waiver of challenge was rejected in a misdemeanor case in which the list of jurors was passed alternately to the government and to the defendant's counsel according to the usual practice, when the government exercised its right once, and the defendant exercised his right three times. Up to the time that defendant had exercised his last challenge the government had twice passed the list without any challenge. But when the last juror was called the government challenged such juror. Although the defendant objected the court upheld the challenge.³²² He was denied an additional challenge. The state law calling this a waiver did not apply. It made no difference that the government in effect exercised its right as to 13 jurors and the defendant as to 12. The calling of the thirteenth juror was made necessary by the defendant's third peremptory challenge.

322 United States v. Daubner, 17 Fed. 793, 796 (E.D.Wis. 1803).

In 1892 the Supreme Court stated by Justice Shiras: "There is no statute * * * which prescribes the method of procedure in impanelling jurors in criminal cases, and it is customary for the United States courts in such cases to conform to the methods prescribed by the statutes of the states."³²³ The trial court need not follow state law as to the method of peremptory challenges. The trial judge could adopt rules of practice, but such practice must not conflict with or abridge the right as it exists at common law. At common law the prospective jurors were presented to the defendant or to his counsel.

323 Lewis v. United States, 146 U.S. 370, 376, 13 S.Ct. 136, 138, 36 L.Ed. 1011 (1892).

Since the making of challenges, including peremptory challenges, is an essential part of the trial, the defendant has a substantial right to be brought face to face with the jurors when the challenges are made.³²⁴ In felony cases the defendant cannot waive this right. Where the trial judge after a plea of not guilty of murder directed two lists of 37 qualified jurors, the lists being identical, be made by the clerk, one to be given to the government and one to counsel for the defendant, and directed each side to proceed with its challenges, independently of the other, and without knowledge in the part of either as to what challenges had been made by the other, to which the defendant had objected but was overruled, and the defendant challenged 20 of the 37 on his list, but in so doing challenged three who were also challenged by the government in its list, there was substantial error justifying reversal of the conviction. The Supreme Court found difficulties in the record. It did not appear that the defendant made any demand for challenges beyond the twenty allowed by statute. It did not appear which side made the first challenge. If it had appeared that the defendant had made his challenges before the government challenged the same three jurors, then he had not been injured in fact. The two dissenters thought that no injury had occurred in the instant case. They asserted that at common law and where the statute does not prescribe the order of challenges, the defendant must make all his challenges before the government is called upon for any.³²⁵ Contemporaneous challenging as here worked to the injury of the government rather than to that of the defendant.

324 Lewis v. United States, 146 U. S. 370, 372, 375, 13 S.Ct. 136, 36 L. Ed. 1011 (1892). Two justices dissented. In Alexander v. United States, 138 U.S. 353, 354, 11 S.Ct. 350, 34 L.Ed. 954 (1891) the Supreme Court did not consider the issue because no proper exception had been taken at the trial. Both cases arose in the Western District of Arkansas. The case was followed in Pointer v. United States, 151 U.S. 396, 405, 14 S.Ct. 410, 38 L.Ed. 208 (1894).

325 Ibid., 146 U.S. 370, 380, 386, 13 S.Ct. 136.

In 1894 the Supreme Court held in a murder case that a defendant is not entitled to have the government make its peremptory challenges before he makes his, although it is in the discretion of the court to direct it.³²⁶ The court need not follow the state law on the point. "But the general rule is that, where the subject is not controlled by statute, the order in which peremptory challenges shall be exercised is in the discretion of the court."³²⁷ In some jurisdictions the defendant and the government make their challenges as each juror previously ascertained to be qualified and not subject to be challenged for cause, is presented for challenge or acceptance. But this method need not be followed in the federal courts.

326 Pointer v. United States, 151 U.S. 396, 409, 14 S.Ct. 410, 38 L.Ed. 208 (1894).

327 Ibid., 151 U.S. 410, 14 S.Ct. 415.

A rule of a Circuit Court providing that "a juror shall be challenged, or accepted and sworn, in the case as soon as his examination is completed, and before the examination of another juror" is valid.³²⁸ The defendant has no right to examine all the jurors before being required to exercise his peremptory challenges as to any of them. No settled principle of criminal law is violated, nor is the right to an impartial jury impaired.

328 St. Clair v. United States, 154 U.S. 134, 147, 14 S.Ct. 1002, 1007, 38 L.Ed. 936 (1894).

In a case arising in Tennessee the federal court followed the Tennessee practice of permitting the government to challenge peremptorily a juror who had been passed and accepted by both sides after their examination of him on his voir dire, and the jury had been completed, but not sworn.³²⁹ The right to challenge extended to the time of swearing. Under the Tennessee practice the jury was sworn as a whole, thus extending the time for challenge.

329 United States v. Davis, 103 Fed. 457, 458 (W.D.Tenn. 1900).

As to the number of jurors sworn at one time an early case followed the practice of the state in which the trial was held, and four jurors were sworn at the same time.³³⁰ The jurors who have been sworn need not be delivered into the custody of the marshal until the whole numbers had been impaneled and sworn.³³¹

330 United States v. Burr, 25 Fed. Cas. 55, 81, 82, 88, case no. 14,693 (C.C.D.Va. 1807).

331 Ibid., 25 Fed.Cas. 82.

Where there was a dispute between counsel while the jury was being impaneled, as to the order of peremptory challenges, but neither counsel called the court's attention to it, and the government reserved one of its challenges until after talesmen had been drawn, it was not reversible error to permit the government to exercise such challenge after the defendant's challenges had been exhausted.³³² The defendant's counsel had announced that it was content with the jury, but the government had not. The defendant should not have exhausted his challenge without first making a request to the court as to the order of challenge. The court praised the New York State practice of filling the jury box with twelve prospective jurors, with the prosecution first challenging the individual juror and then the defendant challenging.

332 Radford v. United States, 129 Fed. 49, 52 (2d Cir. 1904).

A Court of Appeals has rejected a defendant's contention that before exercising his peremptory challenges, he should be given an opportunity to examine on voir dire not only the twelve jurors whose names have been drawn from the wheel and who have gone into the box, but also the entire panel from which vacancies caused by challenges may be filled.³³³

333 Browne v. United States, 145 Fed. 1, 7 (2d Cir. 1905). In this case the defendant was furnished with a list of jurors.

In one case the trial judge ordered the prospective jurors to be divided into three panels of 12 each. When a case was to be tried, one of these panels was called into the box. The clerk then examined the twelve as to their qualifications. If any were disqualified their places were filled from the other panels until there were 12. These 12 were then presented to the defendant and government for peremptory challenges and challenges for cause. As the juror challenged retired, another was called in to take his place. This method continued until further challenge was waived or the right exhausted. The 12 jurors remaining were then sworn to try the case. A Court of Appeals upheld his procedure by a vote of two to one.³³⁴ The defendant's claim to have 28 persons presented at once was rejected. No federal statute or rule of the District Court required 28. Moreover as the defendant had not used all his peremptory challenges, he could not complain on appeal.

334 Tierney v. United States, 280 Fed. 322, 323 (4th Cir. 1922) cert. denied 259 U.S. 588, 42 S.Ct. 590, 66 L.Ed. 1077.

When for purposes of challenges 36 jurors are divided into panels of 12 each, and the challenging is to proceed with respect to one panel, the defendant entitled to 10 peremptory challenges cannot challenge the entire panel of 12.³³⁵

335 Tierney v. United States, 280 Fed. 322, 323 (4th Cir. 1922) cert. denied 259 U.S. 588, 42 S.Ct. 490.

The government may challenge peremptorily a juror, who had once been passed by both sides, after which the defendant had exercised peremptory challenges.³³⁶ Challenging may occur until the jury is finally accepted and sworn. The passing of a juror previous to such time is not a final acceptance of the juror.

336 Wilkes v. United States, 291 Fed. 988, 991 (6th Cir. 1923) cert. denied 263 U.S. 719, 44 S.Ct. 181.

When of a panel of 32 jurors, two had been excused, and 12 others had served on a trial of the defendant a few days before and acquitted him of a different offense, there was no reversible error in using the other 18 for peremptory challenges, even though two of the 18 had been peremptorily challenged by the defendant in the former trial of a different offense.³³⁷

337 Kelly v. United States, 293 Fed. 689, 692 (4th Cir. 1923).

In 1935 it was held that the right to peremptory challenge on both sides is open until a jury is sworn to try the case unless waived.³³⁸ A defendant was denied his constitutional right of trial by jury when, having challenged 19 jurors he was denied his right to exercise his remaining challenge on the theory that he had waived his right to challenge particular jurors by failure to do so when requested to before the box was filled. The court held that in the absence of a rule of court or rule recognizing the right to challenge peremptorily after the box is filled, the procedure is that of the common law as modified changed by the constitution and statutes in the state of the trial, as far as such procedure is not inconsistent with the Constitution and laws of the United States.³³⁹ There is no separate federal statute on impaneling and challenging jurors.

338 Avila v. United States, 76 F.2d 39, 40 (9th Cir. 1935). One judge dissented. The case is noted 10 So. Calif. L. Rev. 81 (1936) where it is criticized. But see 58 Yale L.J. 638, 642 n. 25 (1949).

339 The court cited the general statute governing the rules of federal criminal procedure. Rev. Stat. § 722, 42 U.S.C.A. § 1988 enacted in April 9, 1866. But the dissenting judge asserted that this statute was confined to civil rights cases removed from state to federal courts.

In one of the last cases, on order and method of peremptory challenges before the Federal Criminal Rules the Court of Appeals of the Eighth Circuit held that the trial court had discretion as to the order.³⁴⁰ In the particular case the trial judge called for the exercise of peremptory challenges after twelve prospective qualified jurors served in the box, the order of challenge to be 2-1, 2-1, 2-1, 2-1, 1-2, and 1-1. The defendants were to start the challenging. The defendants waived the first two peremptory challenges and the government exercised one. Then the government asked that the eleven jurymen be sworn in immediately according to the District of Nebraska practice. Upon the defendants' objection, the trial judge decided, after a conference in chambers to "start all over again". The eleven jurymen remained in the box. The defendants challenged one and the government another. The one left was then sworn without objection. Later after three other jurymen were called, the defendants sought to challenge one of these three and one of the jurors already sworn. The court refused to permit challenge of the juror already sworn; and, as additional jurymen were called, those not challenged were sworn in immediately until there were twelve. A list of 32 prospective jurors in all were called. On appeal the defendants objected to the court's allowing the government to exercise one peremptory challenge out of turn since the government had exercised two challenges before the defendants had exercised their second two challenges. The defendants also claimed error because they were not allowed to challenge the juror already sworn, and because the first nine jurymen were sworn before all peremptory challenges had been exhausted or waived. The conviction was affirmed.

340 Philbrook v. United States, 117 F.2d 632, 635 (8th Cir. 1941) cert. denied 313 U.S. 577, 61 S.Ct. 1097, 85 L.Ed. 1534 noted approvingly 21 Neb. L. Rev. 174 (1942). But see 58 Yale L.J. 638, 642 n. 25 (1949).

Where the order of challenge is as follows, no right of the defendant was violated: The defendants were allowed two, then the government one, until the defendant had exercised or waived eight challenges then the defendant was required to exercise one, and the government one, and the defendant one and the government one.³⁴¹ It made no difference that the government had the final challenge. The court cited an Ohio case³⁴² in accord. Arguably this rule is harsh.³⁴³ The result of the government's challenge may be a new juror in the box whom the defendant cannot challenge. Proper protection of the defendant requires the court to allow the defendant to reserve some of his challenges until after the government has challenged. This is the practice in states adopting statutes on the order of challenge.³⁴⁴

341 United States v. Keegan, 141 F. 2d 248, 254 (2d Cir. 1944) reversed on other grounds 325 U.S. 478, 65 S.Ct. 1203, 89 L.Ed. 1745 (1945).

342 Lyon v. State, 116 Ohio St. 265, 155 N.E. 800 (1927). The decision was four to three.

343 27 Col. L. Rev. 1088 (1927); 76 U.Pa. L. Rev. 105 (1927).

344 Orfield, Criminal Procedure from Arrest to Appeal, 405 (1947).

A circuit judge has thus summarized the law as to the method and order of challenging.³⁴⁵ State law does not control, save as it is adopted in the federal court by standing rule, or special order in the case. The federal district court may by standing rule, or special order in a particular case, designate the method of impaneling. When the District Court has done none of these, the manner and method of impaneling is within the discretion of the court subject to any acts of Congress and settled principles of criminal law.

345 Tierney v. United States, 280 Fed. 322, 325 (4th Cir. 1922).

With respect to appellate review of error in impaneling the jury, such as error in the procedure of peremptory challenges, counsel for defendant must separately call the attention of the trial court to such error, and in case of an adverse ruling note an exception.³⁴⁶

346 Alexander v. United States, 138 U.S. 353, 355, 11 S.Ct. 350, 34 L.Ed. 954 (1891); Lewis v. United States, 146 U.S. 370, 379, 13 S.Ct. 136, 36 L.Ed. 1011 (1892).

Alternate Jurors

In a case arising before the federal statute on alternate jurors it was held that where an alternate juror was drawn pursuant to state practice, who was discharged just before the instructions to the jury and took no part in the jury deliberations no reversible error occurred.³⁴⁷ The defendant did not object at the time, but expressly consented, hence there was a waiver. The court concluded that "it is unnecessary to decide the general question of the power of the federal courts to adopt the alternate juror practice."³⁴⁸

347 Gibson v. United States, 31 F. 2d 19, 21 (9th Cir. 1929).

348 Ibid., 31 F.2d 22. See also Shushan v. United States, 117 F.2d 110, 116 (5th Cir. 1941). In the latter case the two alternate jurors were dismissed before submission of the case to the jury.

Where under the statute³⁴⁹ of 1932 there could be two alternate jurors, it was proper procedure to summon and have on hand five prospective jurors out of which the two alternate jurors could be selected.³⁵⁰ An alternate juror may and should take the place of a juror when it is discovered that the juror had been convicted of violating the National Prohibition Act.³⁵¹ The fact that the alternate was available is a factor against granting a new trial because of the presence of the convicted juror.

349 47 Stat. 380. The statute was repealed in 1948. See 62 Stat. 862.

350 Albizu v. United States, 88 F.2d 138, 141 (1st Cir. 1937) cert. denied 301 U.S. 707, 57 S.Ct. 940, 81 S.Ct 1361.

351 Spivey v. United States, 109 F. 2d 181, 186 (5th Cir. 1940) cert. denied 310 U.S. 631, 60 S.Ct. 1079, 84 L.Ed. 1401.

In 1944 a Court of Appeals upheld the alternate jurors statute.³⁵² In the particular case the alternate juror was not challenged for any personal disqualification, sat next to the jury box until he was substituted, saw and heard all the proceedings of the trial and was segregated with the other jurors. He obeyed the order and admonitions of the Court, as the other jurors did. No prior attack had been made on the constitutionality of the Act. A similar statute of North Carolina had been upheld.³⁵³ Since a defendant could on his waiver be tried by eleven jurors, a fortiori, he should be triable by twelve including an alternate juror. Although the statute provided for the use of alternate jurors in trials of a "defendant against whom has been filed an indictment," it was construed to cover cases of prosecution by information.³⁵⁴ The object of the statute was to prevent mistrials in criminal case of long duration where a juror dies or becomes so ill as to be unable to continue to perform his duties. The statute was remedial in purpose, hence should cover all cases whether prosecution is by indictment or by information.

352 Robinson v. United States, 144 F.2d 392, 397 (6th Cir. 1944) affirmed 324 U.S. 282, 65 S.Ct. 666, 89 L.Ed. 944 (1945). The Supreme Court did not discuss the point.

353 State v. Dalton, 206 N.C. 507, 174 S.E. 422 (1934). See Orfield, Criminal Procedure from Arrest to Appeal, 398-399 (1947).

354 American Tobacco Co. v. United States, 147 F.2d 93, 117 (6th Cir. 1944) affirmed 328 U.S. 781, 66 S.Ct. 1125, 90 L.Ed. 1575 (1946). The Supreme Court did not discuss the point.

III. PROCEDURE UNDER RULE 24

Selection of Jurors

Rule 24 does not cover the selection of jurors. But for the sake of completeness the subject is discussed here briefly.³⁵⁵

355 For more comprehensive discussion see Frankfurter and Landis, "Power of Congress over Procedure in Criminal Contempts." 37 Harv. L. Rev. 1010, 1098-1099 (1924); Blume, "Jury Selection Analyzed: Proposed Revision of Federal System." 42 Mich. L. Rev. 831 (1944); Hickey, "Improvement of the Jury System in the Federal Courts." 35 Geo.L.J. 500 (1947); Goodman, "Federal Jury Selection". 6 F.R.D. 253 (1941); Wicker, "Jury Panels in Federal Courts," 22 Tenn. L. Rev. 203 (1952); Note, 64 Yale L.J. 1059 (1955); Vanderbilt, "Judges and Jurors: Their Functions, Qualifications and Selection," 37 Boston U. L. Rev. 1, 62-74 (1956); "Jury System in the Federal Courts," 26 F. R.D. 409-558 (1961).

Prior to 1957 jurors in the federal courts had to meet the qualification of jurors in the state in which they were sitting.³⁵⁶ A statute³⁵⁷ abolished this requirement. State restrictions on qualifications of jurors no longer apply. The statute is constitutional.³⁵⁸ Women could serve on the jury though they cannot on juries in the courts of the state in which the trial was held.

356 As to the difficulties arising see note, 64 Yale L.J. 1059 (1955).

357 28 U.S.C.A. § 1861, 71 Stat. 638. See 26 F.R.D. 443-444 (1961).

358 United States v. Wilson, 158 F.Supp. 442, 448 (M.D.Ala. 1958) affirmed 255 F.2d 686 (5th Cir. 1958) cert. denied 358 U.S. 865, 79 S.Ct. 97, 3 L.Ed.2d 98. See Hoyt v. State of Florida, 82 S.Ct. 159, 161-162 (1961).

There is a distinction between the power of jury clerks to exercise discretion in excusing persons from jury service before their names are placed in the jury box; and the excusing power of the court which comes into operation after jurors have been summoned for service.³⁵⁹ The jury clerks proceed under one statute, that on the manner of drawing.³⁶⁰ The judge proceeds under another statute, that on excuse from service.³⁶¹

359 United States v. Flynn, 216 F. 2d 354, 386 (2d Cir. 1954). See 26 F.R.D. 422, 453-454, 481-483 (1961).

360 28 U.S.C.A. § 1864.

361 28 U.S.C.A. § 1863(a) and (b).

List of Jurors

The defendant is not deprived of his right to an impartial jury because he is not furnished a list of jurors.³⁶² Nor is he deprived of due process of law under the Fifth Amendment.

362 Hamer v. United States, 259 F.2d 274, 276, 278, 279 (9th Cir. 1958) cert. denied 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577; Wagner v. United States, 264 F.2d 524, 528 (9th Cir. 1959); Johnson v. United States, 270 F.2d 721, 724 (9th Cir. 1959) cert. denied 362 U.S. 937, 80 S.Ct. 759, 4 L.Ed.2d 751. Nor is he entitled to the addresses of the jurors.

A statute provides that the manner of petit jurors shall be "publicly drawn."³⁶³ A person present could then copy down the names so drawn. But this does not give the defendant a right to a list of jurors furnished by the government.³⁶⁴ Nor can he obtain such a list by questioning of prospective jurors on voir dire. Rule 24 does not cover the topic of list of jurors. Instead it is covered by statute.³⁶⁵

363 28 U.S.C.A. § 1864.

364 Wagner v. United States, 264 F.2d 524, 528 (9th Cir. 1959).

365 18 U.S.C.A. § 3432.

Challenge to the Array

A challenge to the array goes to the form and manner of making of the whole panel.³⁶⁶ It relates to the legality of drawing, selecting or impaneling the array. It will lie only where there is partiality or misconduct or some irregularity in making out the list. A challenge to the array is made prior to the voir dire examination.³⁶⁷ All challenges for cause or favor whether to the array or panel or to individual jurors, shall be determined by the court.³⁶⁸

366 United States v. Gordon, 253 F.2d 177, 184 (7th Cir. 1958).

367 1 Matthews, How to Try a Federal Criminal Case, sec. 405, p. 559 (1960).

368 28 U.S.C.A. § 1870.

It has been held that no challenge to the panel will lie because jurors for the Southern District of New York were selected from only three out of eleven counties in the district in accordance with a practice of at least 10 years, even though this allegedly resulted in an imbalance between urban and rural jurors even though no order authorizing division of the district had been entered, and even though there might be places in the excluded counties more easily accessible to the courthouse than some places in the county included.³⁶⁹ In a prosecution in which the defendants moved for transfer on the ground of prejudicial publicity the trial court could on its own motion direct that, in selecting jurors, residents of the city and county of St. Louis be excluded from the list of prospective jurors, as this did not limit any particular class of jurors.³⁷⁰ The federal statute³⁷¹ allowed the selection of jurors "from such parts of the district as the court directs so as to be most favorable to an impartial trial." Jurors from another division may be used.³⁷²

369 United States v. Gottfried, 165 F.2d 360, 363 (2d Cir. 1948) cert. denied 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139. See 26 F.R.D. 421 and 433 (1961).

370 Connelly v. United States, 249 F.2d 576, 583 (8th Cir. 1957) cert. denied 356 U.S. 921, 78 S.Ct. 700, 2 L.Ed.2d 716.

371 28 U.S.C.A. § 1865(a).

372 Graham v. United States, 257 F.2d 724, 728 (6th Cir. 1958). Hence there need be no transfer to another district under Rule 21(a).

A challenge to the panel does not lie because jury clerks exercised discretion in omitting persons not qualified because of deafness or illness or hardship.³⁷³ Under the statute³⁷⁴ the jury clerks have this discretion. Such procedure saves the time of the trial court.

373 United States v. Flynn, 216 F. 2d 354, 386 (2d Cir. 1954).

374 28 U.S.C.A. § 1864.

A challenge to the array will not be sustained on the ground that some volunteers were included on the jury list but there was no evidence that any volunteers on the panel were summoned. Even if some volunteers had been summoned the defendant could challenge for cause.³⁷⁵

375 United States v. Smith, 253 F.2d 95, 97 (7th Cir. 1958) cert. denied 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed.2d 1364. See 26 F.R.D. 419, 421, 431-432 (1961).

A challenge to the array or panel will not lie because no one was drawn who did not return his questionnaire; or because the list of prospective jurors was drawn primarily from a telephone book and a list of former jurors.³⁷⁶ In a prosecution for conspiring to overthrow the government, where prospective jurors had been sent questionnaires which included a question whether the prospective juror was opposed to the American form of government, but the answer thereto was not specifically checked on each questionnaire and was but one factor in selection, the use of the questionnaire was proper.³⁷⁷

376 Local 36 of Intern. Fishermen Allied Workers of America v. United States, 177 F.2d 320, 338 (9th Cir. 1949), affirming United States v. Local 36, 70 F.Supp. 782 (S.D.Calif. 1947). See also United States v. Clancy, 276 F.2d 617, 632 (7th Cir. 1960).

377 United States v. Mesarosh, 13 F.R.D. 180, 189 (W.D.Pa. 1952). On the use of questionnaires see 26 F.R.D. 435-440, 507-508, 528-529 (1961).

In 1958 the Court of Appeals of the Seventh Circuit possibly left open the validity of the use of a handbook for jurors, ³⁷⁸ although three of the judges seemed to favor its use. While a challenge to the panel would not lie, a challenge for cause to individual jurors could be made. The Court of Appeals for the Sixth Circuit upheld the denial of a new trial when it was discovered after verdict that the whole panel had been supplied with jury manuals.³⁷⁹ The Court of Appeals of the Second Circuit upheld denial of a new trial where it appeared that one juror had used a manual.³⁸⁰

378 United States v. Gordon, 253 F.2d 177, 191, 194 (7th Cir. 1958) noted 43 Iowa L. Rev. 654 (1958). See 62 Harv. L. Rev. 139 (1948); 22 N.Y.U.L.Q. Rev. 442 (1947); 34 N. Y.U. L. Rev. 109 (1959); 41 Ill. L. Rev. 183 (1946); People v. Lopez, 32 Cal.2d 673, 197 P.2d 757, 758-759 (1948), noted 2 Okla. L. Rev. 520 (1949) and 2 Vand. L. Rev. 313 (1949).

379 Horton v. United States, 256 F.2d 138, 141 (6th Cir. 1958) noted 27 Fordham L. Rev. 618 (1959). See the bibliography in 26 F.R.D. 530-531 (1961).

380 United States v. Allied Stevedoring Corporation, 258 F.2d 104, 106 (2d Cir. 1958) cert. denied 358 U.S. 841, 79 S.Ct. 58, 3 L.Ed.2d 76, noted 47 Geo.L.J. 403 (1958); for the case below see 162 F.Supp. 874 (S.D.N.Y. 1958).

A majority of the Supreme Court has seen no objection to a system under which the trial court asks when the panel of persons is drawn, all those who do not wish to serve to step aside and excuses them from service.³⁸¹ But Justice Jackson in his dissent pointed out that in the District of Columbia non-government jurors would step aside because of the law jury pay, while government employees would remain as they are given leave from the government with full pay.³⁸² Perhaps the solution is better pay for jurors and restricting judicial power to excuse jurors from jury duty.³⁸³

381 Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 93 L. Ed. 187 (1948).

382 Ibid., 335 U.S. 514, 516, 69 S. Ct. 201.

383 47 Mich. L. Rev. 844, 846 (1949).

The trial court need not disqualify the panel because at the beginning of the trial counsel for defendant stated that he noticed that the government had an additional set of pages with reference to jurors, and that he thought that the government had had an F.B.I. examination made of the jurors.³⁸⁴ No evidence indicated that the government had made any investigation, to say nothing of an improper one, of prospective jurors. The defendant is not entitled to inspection of a report of the F.B.I. on the members of the venire.³⁸⁵

384 Christoffel v. United States, 84 U.S.App.D.C. 132, 171 F.2d 1004, 1006 (D.C. Cir. 1948) reversed on other grounds, 338 U.S. 84, 69 S. Ct. 1447, 93 L.Ed. 1826 (1949). See 26 F.R.D. 441 (1961).

385 Best v. United States, 184 F.2d 131, 141 (1st Cir. 1950) cert. denied 340 U.S. 939, 71 S.Ct. 480, 95 L. Ed. 677. The court intimated that the trial court could in its discretion permit inspection.

The Federal Rules of Criminal Procedure "are entirely silent on the subject," of selection of the jury panel so as to secure a cross section of the community.³⁸⁶ They do not require the clerk and jury commissioner to stratify a community with respect to their social affiliations, sex, religion, race, political affiliation, economic status and occupation, and rate and time or method of payment for work done.³⁸⁷ But if there is a systematic and arbitrary exclusion from the jury list a verdict of guilty will not stand.³⁸⁸

386 United States v. Local 36, 70 F.Supp. 782, 785 (S.D.Calif. 1947).

387 This was affirmed in Local 36 of Intern. Fishermen Allied Workers of America v. United States, 177 F.2d 320, 338 (9th Cir. 1949). See also United States v. Foster, 83 F.Supp. 197 (S.D.N.Y. 1949).

388 Bary v. United States, 248 F. 2d 201, 206 (10th Cir. 1957). This case contains a valuable discussion on what material must be furnished to the defendant on challenge to the array.

A contention that the jury was not properly constituted in that it did not represent a proper cross-section of the community as required by Thiel v. Southern Pac. Co.³⁸⁹ must be made by motion to strike the panel.³⁹⁰ The objection may not be raised after verdict. The doctrine of fair cross-section applies to the names placed in the box from which potential jurors are drawn not to the twelve who make up the actual jury.

389 328 U.S. 217, 66 S.Ct. 984, 90 L.Ed. 1181 (1946).

390 United States v. Higgins, 5 F.R.D. 272 (D.C.D.C. 1946) affirmed Higgins v. United States, 81 U.S. App.D.C. 371, 160 F.2d 222 (D.C. Cir. 1946) cert. denied 331 U.S. 822, 67 S.Ct. 1304, 91 L.Ed. 1839. The court nevertheless looked into the point. It found it immaterial that the jury contained nine government employees, as their work was not in any way connected with the narcotics prosecution. See 26 F.R.D. 429-430 (1961).

Since 1948 a statute³⁹¹ authorizes a district judge to exclude "any class or group of persons * * * by order * * * based on a finding that such jury service would entail undue hardship." Thus despite Thiel v. Southern Pac. Co.³⁹² decided in 1946, under the statute "the power of a judge to exclude an entire class because of undue hardship was expressly recognized, leaving unimpaired the judge's right to excuse in individual cases of hardship."³⁹³

391 28 U.S.C.A. § 1863.

392 328 U.S. 617, 66 S.Ct. 984 (1946).

393 United States v. Flynn, 216 F. 2d 354, 387, n. 21a (2d Cir. 1954). See 26 F.R.D. 453-454 (1961).

A challenge to the panel does not lie because the jury list does not have a proportional representation of Negroes, manual workers, poor people, and members of various racial and religious groups.³⁹⁴

394 United States v. Foster, 83 F. Supp. 197 (S.D.N.Y. 1949).

While the Supreme Court has held that states may make use of blue-ribbon juries, the court made it clear that it was speaking with respect to state courts. "Over federal proceedings we may exert a supervisory power with greater freedom to reflect our notions of good policy than we may constitutionally exert over * * state courts, and these expressions of policy are not necessarily embodied in the concept of due process."³⁹⁵ Moreover four justices dissented as to state court juries.

395 Fay v. New York, 332 U.S. 261, 287, 67 S.Ct. 1613, 1627, 91 L.Ed. 2043 (1947). The defendants had made a challenge to the panel at a seasonable time. See comments 47 Col. L. Rev. 463, 16 Fordham L. Rev. 271, 60 Harv. L. Rev. 613, 33 Iowa L. Rev. 728, 46 Mich. L. Rev. 262, 32 Minn. L. Rev. 297, 19 Miss.L.J. 101, 27 N.Y.U.L.Q. Rev. 331, 1 Okla. L. Rev. 73, 21 So.Calif. L. Rev. 102, 26 Tex. L. Rev. 533.

When a defendant challenges a panel he has the burden to introduce or offer distinct evidence in support of his motion.³⁹⁶ Counsel's statements, unsworn and unsupported by any proof or offer of proof, is not enough.

396 Frazier v. United States, 335 U.S. 497, 503, 69 S.Ct. 201, 93 L. Ed. 187 (1948); United States v. Dennis, 183 F.2d 201, 216 (2d Cir. 1950); United States v. Fujimoto, 102 F.Supp. 890 (D.Hawaii 1952); United States v. Smith, 253 F.2d 95, 97 (7th Cir. 1958) cert. denied 357 U.S. 919, 78 S.Ct. 1360, 2 L.Ed. 2d 1364.

A motion to strike the entire panel comes too late when it is not made until after an entire morning had been consumed in uncompleted efforts to select a jury.³⁹⁷

397 Frazier v. United States, 335 U. S. 497, 503, 69 S.Ct. 201, 93 L.Ed. 187 (1948).

After a criminal case has been assigned to a district Judge the Chief Judge of the District has no power to discharge and annul the jury list.³⁹⁸ His action in doing so would be void, and the district judge would decline to dismiss the charges.

398 United States v. Heath, 103 F. Supp. 1 (D.Hawaii 1952).

A defendant may not raise for the first time the issue that women were deliberately and systematically excluded from service on the trial jury by a motion to vacate judgment.³⁹⁹ He should raise the issue by a challenge to the panel.

399 Wright v. United States, 165 F. 2d 405, 407 (8th Cir. 1948). The defendant had previously appealed from his conviction, and had not then raised the issue. See also King v. United States, 165 F.2d 408 (8th Cir. 1948) as to the Arkansas practice. For a similar holding as to Missouri practice see York v. United States, 167 F.2d 847 (8th Cir. 1948).

A Court of Appeals has declined to grant mandamus or prohibition to prevent trial of a case on the ground that the trial jurors would be chosen from panels not made up of a cross-section of the eligible inhabitants of the District.⁴⁰⁰

400 Fujimoto v. United States District Court, 199 F.2d 27 (9th Cir. 1952). The court cited Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 30, 63 S.Ct. 938, 87 L.Ed. 1185 (1943).

Voir Dire Examination

Rule 24(a) on voir dire vests the trial court with discretion.⁴⁰¹ The exercise of such discretion will not be disturbed in the absence of a clear showing of abuse. Where the questions submitted by the defendant's attorney are proper in part and improper in part, but the record does not set out the entire examination of jurors, the appellate court will not reverse.

401 Speak v. United States, 161 F. 2d 562, 563 (10th Cir. 1947). The due process clause of the Fifth Amendment and the constitutional guarantees as to trial by jury require that federal jurors be impartial and reasonably competent. Scott, "The Supreme Court's Control over State and Federal Criminal Juries," 34 Iowa L. Rev. 577, 599 (1949). See bibliography on voir dire examination in 26 F.R.D. 531-532 (1961). As to the methods used see 26 F.R.D. 465-468 (1961).

The defendant has no constitutional right to conduct the voir dire examination by his counsel instead of by the court.⁴⁰² There is no violation of his right to trial by an impartial jury or of due process of law when the court conducts the voir dire examination.

402 Hamer v. United States, 259 F. 2d 274, 279 (9th Cir. 1958) cert. denied 359 U.S. 916, 79 S.Ct. 592, 3 L. Ed.2d 577; Wagner v. United States, 264 F.2d 524, 528 (9th Cir. 1959).

In one case the voir dire examination was conducted by two judges. The first judge, after spending a week in examining only 20 out of the 51 prospective jurors on the panel, became ill, and a second judge completed the examination of jurors and the trial.⁴⁰³ No question was raised as to the validity of the substitution of judges. A motion for new trial was denied. Since the trial begins with the swearing of the jury after impaneling and challenging, only one judge conducted the trial.⁴⁰⁴

403 United States v. Mesarosh, 116 F.Supp. 345, 346, 348 (W.D.Pa. 1953).

404 See Orfield, "Disability of the Judge in Federal Criminal Procedure," 6 St. Louis Univ.L.J. 150, 153-154, 175 (1960).

Truthful answers on voir dire are tremendously important as they may form the basis for the court's excusing a prospective juror on its own motion, or for challenges for cause or for peremptory challenges.⁴⁰⁵ Earlier federal cases had not allowed voir dire examination to aid in exercising peremptory challenges.⁴⁰⁶ But the latter view seems unfortunate as it tends to put a party to the added expense of and trouble of investigating the jurors outside of court.⁴⁰⁷ And the Supreme Court has held it contempt of court to employ detectives to shadow jurors.⁴⁰⁸ In a number of states, such as California, it is clear that questions on voir dire may not be asked solely to determine the advisability of peremptory challenges.⁴⁰⁹

405 United States v. Freedland, 111 F.Supp. 852, 853 (D.N.D. 1953).

406 Browne v. United States, 145 Fed. 1, 7 (2d Cir. 1905) cert. denied 200 U.S. 618, 26 S.Ct. 755, 50 L.Ed. 623. See Moore, "Voir Dire Examination of Jurors," 17 Geo.L.J. 13, 25, 38 (1928).

407 17 Minn. L. Rev. 299, 301, 312 (1933); 58 Yale L.J. 638, 640 (1949); 50 C.J.S., Juries, § 279, p. 1066.

408 Sinclair v. United States, 279 U.S. 749, 49 S.Ct. 471, 73 L.Ed. 938 (1929).

409 1 Calif. L. Rev. 200 (1913); 18 Calif. L. Rev. 70 (1929); 14 St. John's L. Rev. 142, 149 (1939).

The trial court may refuse to inquire of the jurors on voir dire whether any of them were associated with, friendly to, or related to the United States Attorney or any of the witnesses of the government where at the request of the court the assistant United States Attorney went over the jury list and satisfied the Court, that no acquaintance or relationship existed.⁴¹⁰ No allegation or proof of such disqualifying relation was made by the defendant.

410 Butler v. United States, 191 F. 2d 433, 435 (4th Cir. 1951).

Government counsel on voir dire and challenging may make use of a jury book showing how members of a jury panel voted on previous juries.⁴¹¹

411 Hamer v. United States, 259 F. 2d 274, 280 (9th Cir. 1958) cert. denied 359 U.S. 916, 79 S.Ct. 592, 3 L.Ed.2d 577.

The defendant may not substitute for the oral voir dire examination questionnaires containing interrogatories.⁴¹² The court will consider a motion for such questionnaires as a request for oral questions on voir dire.

412 United States v. Mesarosh, 13 F.R.D. 180, 190 (W.D.Pa. 1952).

On voir dire the trial court need not ask whether the prospective jurors would place greater weight on testimony of law enforcement officers than on testimony of the defendants.⁴¹³ The inquiry should instead be whether more weight would be given to the testimony of law enforcement officers than to that of another witness simply because of their official character.

413 Fredrick v. United States, 163 F.2d 536, 550 (9th Cir. 1947) cert. denied 332 U.S. 772, 68 S.Ct. 87, 92 L.Ed. 360; Chavez v. United States, 258 F.2d 816, 819 (10th Cir. 1958).

When on a prosecution for murder of a United States marshal every man chosen to try the case testified to having an opinion that the defendant was guilty, the appellate court will reverse.⁴¹⁴ The defendant had been given a death sentence. He had made a challenge to the array which was denied, as well as challenges to each juror. The court stated: "We have not yet found any decision, and we have been cited to none, wherein a defendant has been held to have had a fair trial after conviction by a jury of twelve men, every member of which had sworn on voir dire that he had an opinion that the defendant was guilty."⁴¹⁵ The trial court should have granted a transfer to another district or division, or a continuance.⁴¹⁶

414 Juelich v. United States, 214 F. 2d 950, 952 (5th Cir. 1954) noted 8 Okla. L. Rev. 465 (1955). See Irvin v. Dowd, 366 U.S. 717, 81 S.Ct. 1639, 1645, 6 L.Ed.2d 751 (1961).

415 Ibid., 214 F.2d 955. Logically no distinction should be taken with respect to the number of jurors who have expressed an opinion. See note, 60 Col. L. Rev. 349, 357.

416 It would seem that it might well have granted the defendant's motion for trial by the court if the government consented.

In a prosecution for the murder of an F.B.I. agent it was held that the trial judge on voir dire could ask prospective jurors questions reasonably adapted to disclose a fixed state of mind which, on a finding of guilt, irrespective of the evidence pertinent to the punishment, would preclude an adherence to a verdict carrying a mandatory death penalty.⁴¹⁷ The judge should make it clear that the jury may choose between the death penalty and life imprisonment. The judge may excuse jurors who expressed scruples against the death penalty. He may even excuse jurors without a sufficient showing of such scruples when it also appears that no juror was accepted over the defendant's challenge, and the defendant waived his final peremptory challenge.

417 United States v. Puff, 211 F.2d 171, 180 (2d Cir. 1954) cert. denied 347 U.S. 963, 74 S.Ct. 713, 98 L.Ed. 1106. Compare Oberer, 39 Texas L. Rev. 545 (1961).

In a prosecution for failure to file income tax returns the trial court need not on voir dire inquire of the prospective jurors as to their religious affiliations.⁴¹⁸ In a prosecution for evasion of wagering taxes, defendants may not complain when the trial court on voir dire asks a prospective juror whether he taught Sunday School and whether he would be prejudiced against anyone who accepts wagers.⁴¹⁹

418 Yarborough v. United States, 230 F.2d 56, 63 (4th Cir. 1956) cert. denied 351 U.S. 969, 76 S.Ct. 1034, 100 L.Ed. 1487.

419 United States v. Clancy, 276 F. 2d 617, 632 (7th Cir. 1960).

In a prosecution for conspiracy to organize the Communist Party to teach and advocate the overthrow of the government, popular prejudice against Communists does not constitute denial of an impartial jury trial where the prejudice is not local or temporary.⁴²⁰ In general where there is prejudice against defendants proper utilization of the voir dire examination should result in a fair and impartial jury, hence a continuance need not be granted.⁴²¹ But if the voir dire examination indicates that a fair and impartial trial could not be had, a continuance should be granted.⁴²² Where only two jurors were excused for cause, one at the government's request, and the defendant exercised only eight of ten peremptory challenges, a Court of Appeals will not reverse a denial of a motion for change of venue because of local prejudice.⁴²³ There would be no point in change of venue because of publicity where the publicity is nationwide.⁴²⁴

420 United States v. Dennis, 183 F. 2d 201, 226 (2nd Cir. 1950); United States v. Mesarosh, 223 F.2d 449, 458 (3rd Cir. 1955) cert. denied 352 U.S. 1, 77 S.Ct. 1, 1 L.Ed.2d 1. Compare note, 58 Yale L.J. 638, 639 (1949); note, 53 Col. L. Rev. 651 (1953); note, 60 Col. L. Rev. 349 (1960).

421 United States v. Hoffa, 156 F. Supp. 495, 499 (S.D.N.Y. 1957); United States v. Bonanno, 177 F.Supp. 106, 121 (S.D.N.Y. 1959); United States v. Bando, 244 F.2d 833, 838 (2d Cir. 1957) cert. denied 355 U.S. 844, 78 S.Ct. 67, 2 L.Ed.2d 53.

422 Delaney v. United States, 199 F.2d 107, 112, 39 A.L.R.2d 1300 (1st Cir. 1952) noted 53 Col. L. Rev. 651, 66 Harv. L. Rev. 532, 28 N.Y.U. L. Rev. 758, United States v. Dioguardi, 147 F.Supp. 421, 422 (S.D.N.Y. 1956); United States v. Hoffa, 156 F.Supp. 495, 500 (S.D.N.Y. 1957).

423 United States v. Moran, 236 F. 2d 361, 362 (2d Cir. 1956) cert. denied 352 U.S. 909, 77 S.Ct. 148, 1 L. Ed.2d 118.

424 United States v. Bando, 244 F. 2d 833, 838 (2d Cir. 1957) cert. denied 355 U.S. 844, 78 S.Ct. 67, 2 L. Ed.2d 53.

In a prosecution for conspiracy to organize the Communist Party to overthrow the government, the trial court need not put specific questions of the defendants' designed to learn whether the prospective jurors had any prejudice against Communists where the judge's questions though limited to flat inquiry whether the juror was aware of any bias were clear enough.⁴²⁵ "It is of course true that any examination on voir dire is a clumsy and imperfect way of detecting suppressed emotional commitments to which all of us are to some extent subject, unconsciously or subconsciously."⁴²⁶ It "was exactly the purpose of Criminal Rule 24(a), which allows the judge to frame the questions on the voir dire if he thinks best, to avoid the interminable examinations sometime extending for weeks on end that had frequently resulted from the former method."

425 United States v. Dennis, 183 F. 2d 201, 226 (2d Cir. 1950).

426 Ibid., 183 F.2d 227.

Where the trial court refuses to permit counsel to interrogate prospective jurors on voir dire with specific reference to the possible effect of the President's loyalty order, in a prosecution for refusing to produce documents before the Committee on Un-American Activities the Supreme Court reversed.⁴²⁷ The defendant must always be permitted to show actual bias on the part of government employees who served on the jury. While government employees may serve on juries, individual employees who are biased in fact with respect to a particular type of crime may not serve.

427 Morford v. United States, 339 U.S. 258, 70 S.Ct. 586, 94 L.Ed. 815 (1950) noted 23 S.Calif. L. Rev. 640. The point is not discussed in the decision of the trial court or the Court of Appeals. See the explanation of this case in United States v. Dennis, 183 F.2d 201, 228 (2d Cir. 1950).

In a prosecution for conspiracy to overthrow the United States government by force the trial court does not abuse his discretion in permitting the government, as a part of the voir dire examination, to hand each potential juror a list of organizations and to inquire whether the potential juror was a member of any of them.⁴²⁸ The appellate court pointed out that this information could have been obtained directly through questions to the jurors as to their affiliations. But the appellate court suggested that this practice be not again employed.

428 United States v. Lebron, 222 F. 2d 531, 536 (2d Cir. 1955) cert. denied 350 U.S. 876, 76 S.Ct. 121, 100 L.Ed. 774.

Where counsel for two Negro defendants filed an affidavit stating that the trial court refused a request to examine the panel as to racial prejudice and bias, but the government filed an affidavit of counsel for another defendant that the court was very liberal in allowing such questions, and the record was silent as to whether such requests were made and refused, the appellate court was not in position to determine that the trial court had abused its discretion.⁴²⁹ Conviction was affirmed. In a prosecution of a Negro defendant it is reversible error to refuse the defendant's request for examination of prospective jurors as to whether or not they would have any prejudice against the defendant because he was a Negro.⁴³⁰ In a prosecution of a Negro defendant for killing her husband, who was also a Negro, the trial court may refuse on voir dire a question as to whether a prospective juror would object to a Negro living in an apartment near him.⁴³¹ The record did not show as to whether other questions were asked on the voir dire. Moreover the question was not germane as to whether or not the prospective juror could try the case without racial prejudice.

429 Cwach v. United States, 212 F. 2d 520, 531 (8th Cir. 1954).

430 Frasier v. United States, 267 F. 2d 62, 66 (1st Cir. 1959). It appeared also that no question as to any general bias or prejudice were asked.

431 Rivers v. United States, 270 F.2d 435, 436 (9th Cir. 1959) cert. denied 362 U.S. 920, 80 S.Ct. 674, 4 L.Ed.2d 740.

Where in an income tax prosecution a prospective juror was asked on voir dire whether or not he had "had any difficulty in the past or argument about or controversy over your State or Federal income tax returns?" and the prior replied "no, just by a mistake, that's all," he was not guilty of contempt of court merely because he had in one year paid less than five percent of his tax liability which he later paid in full after investigation by the Internal Revenue Service.⁴³² It was not clearly shown that he had willfully given false answers.

432 United States v. Freedland, 111 F.Supp. 852, 853 (D.N.D. 1953). Furthermore, although a questionnaire asked whether or not he had ever been convicted of a crime and the defendant replied in the negative, the defendant acted in good faith as while he had been convicted of grand larceny in the state court, he had been pardoned and he thought that the pardon wiped out his guilt.

Challenge for Cause

A federal statute⁴³³ provides: "In any district court, a petit juror may be challenged on the ground that he has been summoned and attended such court as a petit juror at any term held within one year prior to the challenge." But this does not permit a challenge for cause, or to the panel because the juror has served in one or more cases previously tried during the then current term of court.⁴³⁴ The statute speaks in a past tense.

433 28 U.S.C.A. § 1869.

434 Calderon v. United States, 269 F.2d 416, 417 (10th Cir. 1959).

A challenge to the array does not lie because copies of a "Handbook for Jurors" was supplied to the panel of jurors. Challenge for cause to the individual juror is the proper remedy.⁴³⁵

435 United States v. Gordon, 253 F.2d 177, 184 (7th Cir. 1958).

In a leading case the Supreme Court sustained a conviction of a defendant for violating the Narcotics Act, 26 U.S.C.A. (I.R.C. 1939) § 2553, by a jury in the District of Columbia composed wholly of federal employees. None was an employee of the Bureau of Narcotics. During the voir dire the defendant moved to strike the entire panel on the ground that it did not represent a proper cross-section of the community. The motion was denied. The defendant exhausted his ten peremptory challenges and on finding that only government employees remained on the jury, then challenged the jury as impaneled for cause. The challenge was overruled. The Court of Appeals affirmed, ⁴³⁶ as did the Supreme Court.⁴³⁷ In the absence of affirmative evidence showing systematic exclusion of a particular class, the whole panel could not be stricken. Final composition of the jury entirely of government employees is immaterial. Where the defendant knew that the wife of one juror was employed by the Treasury Department and knew that another was a government employee, but failed to inquire as to the exact nature of the employment and failed to challenge either juror while the jury was being selected he is not entitled to a new trial.⁴³⁸

436 Frazier v. United States, 82 U. S.App.D.C. 332, 163 F.2d 817, 819 (D.C. Cir. 1947).

437 Frazier v. United States, 335 U.S. 497, 69 S.Ct. 201, 93 L.Ed. 187 (1948) noted 37 Geo.L.J. 436, 47 Mich. L. Rev. 844, 28 Neb. L. Rev. 446. The opinion was five to four.

438 Frazier v. United States, 335 U.S. 497, 512, 69 S.Ct. 201, 93 L. Ed. 187 (1948). In general on the right to new trial see 17 Minn. L. Rev. 299, 303 (1933).

In a prosecution of an alien for knowingly making false statements in his application to the Secretary of State for permission to depart from the United States, a trial court held that government employees need not be excluded from the jury.⁴³⁹ The subversive character of the crime involved made no difference. The Court of Appeals affirmed.⁴⁴⁰ But one judge dissented because of the security aspect. Three jurors were government employees and a fourth was an employee of the District of Columbia. The defendant was alleged to be a major Communist leader in the United States.

439 United States v. Eisler, 75 F. Supp. 640, 642 (D.C.D.C. 1948).

440 176 F.2d 21, 23 (D.C. Cir. 1949) cert. denied 337 U.S. 958, 69 S.Ct. 1534, 93 L.Ed. 1758.

The trial court need not, on a trial for failure to respond to a subpoena of the Congressional Committee on the Un-American Activities, exclude seven government employees from a jury sitting in the District of Columbia.⁴⁴¹ The failure to sustain a challenge for cause did not violate the right to an impartial jury. The decision was five to two. It made no difference that the defendant was a known Communist. But it may well be that in cases involving the security of the Nation, stricter standards should be applied in view of an Executive Order as to government employees suspected of "disloyal" or "subversive" beliefs or activities.⁴⁴² In earlier cases the Supreme Court had intimated that there might be disqualification for implied bias in a "special" or "exceptional" case.⁴⁴³

441 Dennis v. United States, 339 U.S. 162, 168, 70 S.Ct. 519, 94 L.Ed. 734 (1950). For the case below see 84 U.S.App.D.C. 31, 171 F.2d 986, 991 (D.C. Cir. 1948).

442 The law review comments were unanimously critical. See 3 Ala. L. Rev. 232, 235; 26 Ind.L.J. 70, 75; 4 Miami L.Q. 238, 240; 49 Mich. L. Rev. 130, 132, 12 Ohio St.L.J. 123, 124; 24 Temple L.Q. 241, 243, 8 Wash. Lee L. Rev. 99, 105.

443 United States v. Wood, 299 U. S. 123, 134, 149, 57 S.Ct. 177, 81 L. Ed. 78 (1936); Frazier v. United States, 335 U.S. 497, 510-511 note 19, 69 S.Ct. 201, 93 L.Ed. 187 (1948).

One challenging for cause on the ground that a prospective juror is a servant of the United States has the burden to show that they actually are such servants.⁴⁴⁴ In a prosecution for sale of gasoline without receiving coupons and in violation of maximum price regulation, the appellate court upheld overruling of a challenge for cause on the ground that the prospective jurors were servants of the United States because they were members of Triple A Committees and had some power of recommendation as to allotment of gasoline to farmers. They received no compensation for such services. Under the state law of Iowa, where the trial was held, the jurors were not disqualified.

444 Kempe v. United States, 160 F. 2d 406, 408 (8th Cir. 1947) cert. denied 331 U.S. 843, 67 S.Ct. 1534, 91 L.Ed. 1864. See discussion of this case in Amandes, "Jury Challenge in Criminal Cases: When, How, and Group Membership Bias as a Basis Therefor," 3 Wayne L. Rev. 106, 108 n. 15 (1957).

Membership in a police force does not disqualify for jury service.⁴⁴⁵ Where the defendant moved for a new trial on the ground that a juror, who was a reserve police officer, did not respond when the jury panel as a whole was asked whether any were or had been reserve police officers, a new trial would be denied as the jury was not disqualified, and no actual bias was shown. The juror had not been asked individually whether or not he was a police officer, although all other jurors were so questioned individually.

445 Cavness v. United States, 187 F.2d 719, 722 (9th Cir. 1951) cert. denied 341 U.S. 951, 71 S.Ct. 1019, 95 L.Ed. 1374.

Relationship to the United States Attorney does not disqualify a juror. The defendant is not entitled to a new trial because a sister of one of the jurors was married to an uncle of the Assistant United States Attorney who presented the case.⁴⁴⁶ A new trial will not be granted. State law of the state in which the trial was held did not disqualify. A prospective juror is not disqualified because he is acquainted with the United States Attorney.⁴⁴⁷ Counsel for the defendant knew of such acquaintance before the jury was accepted, although he did not know of the extent and duration of such acquaintance.

446 Garland v. United States, 182 F.2d 801 (4th Cir. 1950).

447 Roberson v. United States, 249 F.2d 737, 740, 72 A.L.R.2d 434 (5th Cir. 1957) cert. denied 356 U.S. 919, 78 S.Ct. 704, 2 L.Ed.2d 715.

A trial court need not sustain a challenge for cause when a juror stated that he had some prejudice against one of the defendant's attorneys because he thought a friend of his was not fairly treated in a mortgage foreclosure handled by the attorney.⁴⁴⁸ On further questioning the juror stated he would be fair and impartial to the defendant.

448 Bateman v. United States, 212 F.2d 61, 66 (9th Cir. 1954).

A new trial will not be granted on the alleged ground that two members of the jury knew a brother of one co-defendant and let him off lightly but held out for a severe sentence for another defendant, where there is no proof of such acquaintance.⁴⁴⁹ There was no showing that the jurors knew that the brothers were related.

449 United States v. Allied Stevedoring Corporation, 258 F.2d 104, 105 (2d Cir. 1958) cert. denied 358 U.S. 841, 79 S.Ct. 58, 3 L.Ed.2d 76. For the case below see 162 F.Supp. 879 (S.D.N.Y. 1958).

A juror is not disqualified because he had previously sat in another case against other defendants wherein a witness against the present defendants testified.⁴⁵⁰ No actual prejudice was shown. The defendants exercised only six of their ten peremptory challenges.⁴⁵¹ The trial court need not dismiss the jury panel.

450 Cwach v. United States, 212 F. 2d 520, 529 (8th Cir. 1954).

451 On the question of exhausting peremptory challenges see note, 5 Wash. Lee L. Rev. 153 (1948) criticizing the prevailing view. See also United States v. Puff, 211 F.2d 171, 185 (2d Cir. 1954); Delaney v. United States, 199 F.2d 107, 116 (1st Cir. 1952) (failure to exhaust challenges did not bar a continuance).

In a prosecution for robbery when counsel for the defendant asked whether any of the prospective jurors had ever been robbed or had anything stolen from him and a juror who sat in the case failed to state that a mirror had been removed from his car, this is not ground for new trial except where such failure resulted from a purposefully incorrect answer or from deliberate concealment.⁴⁵²

452 Ryan v. United States, 89 U.S. App.D.C. 328, 191 F.2d 779, 782 (D. C. Cir. 1951) cert. denied 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691.

When a prospective juror testified falsely on voir dire as to not being prejudiced against gamblers, the defendant must object as soon as he learned thereof.⁴⁵³ If he does nothing and the trial goes on to conviction, he cannot have a new trial or a reversal. When the defendant goes to trial without raising any objection to the qualifications of jurors, he waives the objection. It has been so held as to women serving on a jury in a state in which women do not serve on juries in the state courts.⁴⁵⁴ The same is true as to the objection that a juror had been previously convicted of a felony where no actual bias or prejudice is shown.⁴⁵⁵ The same is true as to exclusions of women from the jury.⁴⁵⁶

453 United States v. Clancy, 276 F. 2d 617, 636 (7th Cir. 1960).

454 United States v. Wilson, 158 F. Supp. 442, 450 (M.D.Ala. 1958) affirmed 255 F.2d 686 (5th Cir. 1958) cert. denied 358 U.S. 865, 79 S.Ct. 97, 3 L.Ed.2d 98.

455 Ford v. United States, 201 F. 2d 300, 301 (5th Cir. 1953).

456 Hanratty v. United States, 218 F.2d 358 (5th Cir. 1955) cert. denied 349 U.S. 928, 75 S.Ct. 770, 99 L.Ed. 1259.

There seems to be no decisions specifically holding that extrinsic evidence may be introduced in support of a challenge to juror for cause. But state court cases support the introduction of such evidence.⁴⁵⁷

457 65 A.L.R. 1056; 50 C.J.S. Juries, § 277, p. 1061. See footnote 139.

A Court of Appeals has stated in a dictum that "a subsequent trial is not barred when the trial court, sua sponte, dismisses a jury and orders a new trial because he discovers that a juror was disqualified or biased."⁴⁵⁸

458 Crawford v. United States, 109 U.S.App.D.C. 219, 285 F.2d 661, 662 (D.C. Cir. 1960). The court cited Thompson v. United States, 155 U. S. 271, 15 S.Ct. 73, 39 L.Ed. 146 (1891), as to a disqualified juror; and Simmons v. United States, 142 U.S. 148, 12 S.Ct. 171, 35 L.Ed. 968 (1961) as to a biased juror. See 3 Ala. L. Rev. 89, 91 (1949); 48 Col. L. Rev. 299, 300 (1948); 2 S.C.L.Q. 183, 185 (1949).

Peremptory Challenges

The right of peremptory challenge is given to help a party to secure a fair and impartial jury.⁴⁵⁹ If he uses it to challenge non-government employees, he cannot later complain that only government employees remain. Since in general government employees are qualified to serve as jurors, it is immaterial that after the defendant has exercised all his peremptory challenges to eliminate nate government employees, three of them still remained on the jury.⁴⁶⁰

459 Frazier v. United States, 335 U.S. 497, 505, 69 S.Ct. 201, 93 L. Ed. 187 (1948).

460 Byas v. United States, 86 U.S. App.D.C. 309, 182 F.2d 94, 98 (D.C. Cir. 1950). The defendant was charged with receiving money for arranging for a female to engage in prostitution, a felony.

In a murder prosecution of three Negro defendants the government used 19 of its 20 peremptory challenges to exclude all Negroes from the jury. The Court of Appeals upheld such procedure.⁴⁶¹ Peremptory challenges may be exercised for any reason whatsoever. The requirements of due process are met when there was no racial discrimination in the selection of the jury list. There is no right to a new trial.

461 Hall v. United States, 83 U.S. App.D.C. 166, 168 F.2d 161, 164, 4 A.L.R.2d 1193 cert. denied 334 U.S. 853, 68 S.Ct. 1509, 92 L.Ed. 1775. The decision was two to one.

In defense of this holding it has been pointed out that prior state court cases had held to like effect.⁴⁶² In 1959 the Illinois Supreme Court followed this view.⁴⁶³ There may be valid motives for the challenges, namely, belief in the bias of those challenged.⁴⁶⁴ It would be difficult to show that the government was really biased, and the object of peremptory challenges is to dispense with such showing.⁴⁶⁵ Moreover the defendants could use their peremptory challenges to exclude white jurors.

462 48 Col. L. Rev. 953, 954 (1948). See 4 A.L.R.2d 1200. See People v. Roxborough, 307 Mich. 575, 12 N.W.2d 466 (1943) cert. denied 323 U.S. 749, 65 S.Ct. 80, 89 L.Ed. 600; Haraway v. State, 203 Ark. 912, 159 S.W.2d 733 (1942), cert. denied 317 U.S. 648, 63 S.Ct. 42, 87 L.Ed. 521.

463 People v. Harris, 17 Ill.2d 446, 161 N.E.2d 809, 811 (1959) cert. denied 362 U.S. 928, 80 S.Ct. 755, 4 L.Ed.2d 747.

464 61 Harv. L. Rev. 1455, 1456 (1948). Compare the 1957 trial of Hoffa in which eight Negroes served on the jury, and Joe Louis entered the court room and put his arm around Hoffa. The jury acquitted. See Dressler, "Trial by Combat in American Courts", Harpers 31, 33-34 (April 1961).

465 61 Harv. L. Rev. 1445, 1456 (1948), 24 U.Chi. L. Rev. 751, 759 (1957); 34 Va. L. Rev. 711 (1948).

In criticism of this decision it has been said that constitutional protection should not cease with the preparation of the jury list.⁴⁶⁶ It follows that there should be restrictions on the traditional arbitrariness of the peremptory challenge. Conviction should be reversed if it is found that the government has over a period of time consistently challenged all Negroes; or that in the particular case the government barred Negroes from the jury by using a large number of peremptory challenges for the purpose of discrimination; or where the government admits challenging Negroes because of their race.⁴⁶⁷

466 48 Col. L. Rev. 953, 955 (1948); 24 Ind.L.J. 262 (1949); 12 U.Detroit L.J. 45 (1948); 2 Vand. L. Rev. 111 (1948).

467 61 Harv. L. Rev. 1455, 1457 (1948).

The federal courts are not limited to any particular method of providing for the exercise of peremptory challenges.⁴⁶⁸ No constitutional right exists to exercise peremptory challenges. The order of exercising peremptory challenges is in the discretion of the trial court.⁴⁶⁹ Where separate lists of peremptory challenges were made by the government and the defendant, the fact that the government had peremptorily challenged two of the same jurors who appeared on the list of the defendant did not entitle the defendant to two additional challenges.⁴⁷⁰ The right of peremptory challenge is not a right to select, but rather a right to reject jurors. On the whole it seems desirable to give the parties an opportunity to compare several prospective jurors before exercising any challenges.⁴⁷¹ They should alternate their challenges, but no rigid rule of waiver should be applied because of failure to exercise a challenge in turn.

468 United States v. Macke, 159 F. 2d 673, 675 (2d Cir. 1947) cert. denied 331 U.S. 810, 67 S.Ct. 1201, 91 L.Ed. 1830. As to the methods actually used see 26 F.R.D. 468 (1961).

469 See note, 58 Yale L.J. 638, 641 (1949).

470 Hanson v. United States, 271 F. 2d 791, 793 (9th Cir. 1959).

471 Note, 24 U.Chi. L. Rev. 751, 757 (1957).

It is not the duty of the trial court to keep track for the defendant of his number of peremptory challenges.⁴⁷² Thus if the defendant is mistakenly allowed more than his number of challenges, the prospective juror excused may be called back by the court. The defendant can protect himself by examining the recalled jurors for bias and prejudice. If he fails to do so, he cannot complain on appeal.

472 Heald v. United States, 175 F.2d 878, 882 (10th Cir. 1949) cert. denied 338 U.S. 859, 70 S.Ct. 101, 94 L.Ed. 526.

A Court of Appeals has stated in dictum: "A lawyer may ordinarily act for a defendant (and, for example, waive * * * a peremptory challenge of a prospective juror) without any showing of a waiver by a defendant."⁴⁷³

473 Taylor v. United States, 285 F. 2d 703, 705 (9th Cir. 1960).

Where 18 defendants are to be tried together and after voir dire and peremptory challenges 15 pleaded guilty the others are not thereby deprived of their proper number of peremptory challenges.⁴⁷⁴ There was no claim that the pleas of guilty were deferred in order to impair the rights of those who did not plead guilty.

474 United States v. Macke, 159 F. 2d 673 (2d Cir. 1947) cert. denied 331 U.S. 810, 67 S.Ct. 120, 91 L.Ed. 1830. This case is approved in note, 24 U.Chi. L. Rev. 751, 753 n. 13 (1957).

In a case involving several defendants who were entitled to three peremptory challenges, the trial court allowed them ten. The Court of Appeals thought that the trial court went too far in allowing so many challenges, but the defendants could not complain as this operated in their favor.⁴⁷⁵ In a prosecution for violation of the Smith Act, 18 U.S.C.A. § 2385, a trial court gave seven defendants entitled to ten challenges one each additional peremptory challenge to each defendant.⁴⁷⁶ They had asked for two additional challenges for each defendant but the court pointed out that in no Smith Act prosecutions were that many given. In a felony case involving conspiracy to overthrow the government where five defendants were jointly indicted and tried each defendant was given three peremptory challenges each, in addition to the ten to be exercised jointly.⁴⁷⁷ In a prosecution of 23 defendants for a felony the defendants who were entitled to ten peremptory challenges were given 42.⁴⁷⁸

475 Local 36 of Intern. Fishermen Allied Workers of America v. United States, 177 F.2d 320, 342 (9th Cir. 1949).

476 United States v. Fujimoto, 107 F.Supp. 865, 867 (D.Hawaii 1952).

477 United States v. Mesarosh, 116 F.Supp. 345, 349 note 7 (W.D.Pa. 1953).

478 United States v. Bonanno, 177 F.Supp. 106, 123 (S.D.N.Y. 1959).

While on first appearance it may seem harsh not to increase the number of challenges where several indictments or informations are consolidated against a defendant, there are at least two answers.⁴⁷⁹ The presence of additional offenses is not likely to affect the partiality of jurors. Moreover the challenges of the government are not increased either.

479 Note, 24 U.Chi. L. Rev. 751, 756 (1957).

The government may be granted additional peremptory challenges if counsel for the defendant stipulates therefor.⁴⁸⁰ Such a stipulation may be made without the presence of the defendant. No constitutional or other substantial legal rights of the defendant are involved.

480 United States v. El Rancho Adophus Products, 140 F.Supp. 645, 649 (M.D.Pa. 1956) affirmed 243 F.2d 367 (3rd Cir. 1957).

Alternate Jurors

The power to impanel alternate jurors is discretionary.⁴⁸¹ A failure to provide alternate jurors does not deprive a defendant of any rights. If, on a trial with twelve jurors and no alternates, a mistrial is declared because of the illness of a juror, the defendant can be tried again and cannot plead double jeopardy. A motion to vacate judgment under 28 U.S.C.A. § 2255 will not lie after conviction.

481 Boisen v. United States, 181 F. Supp. 349, 350 (S.D.N.Y. 1960). There was indication that a request for alternate jurors was made and denied by the court. As to the extent to which alternate jurors are actually used see 26 F.R.D. 485 (1961).

While alternate jurors may replace regular jurors up to the deliberations of the jury, nevertheless the "only time that provision could be made for alternates was at the commencement of the trial."⁴⁸² If not made then, they may not be substituted even though regular jurors become ill. It is proper procedure therefore to inquire after twelve regular jurors have been selected whether or not the defendant wishes alternate jurors or whether the defendant would tentatively be willing to proceed with less than twelve.

482 Horne v. United States, 264 F. 2d 40, 43 (5th Cir. 1949).

An alternate juror has been brought in as a regular juror after the trial court gave its instructions.⁴⁸³ This occurred because the regular juror had sat before in at least seven criminal cases and because he told some of the other jurors that the judge had been unfair to the government. The substitution was made on motion of the defendant.

483 United States v. Gottfried, 165 F.2d 360, 365 (2d Cir. 1948) cert. denied 333 U.S. 860, 68 S.Ct. 738, 92 L.Ed. 1139.

When an alternate juror is dismissed at the conclusion of the trial judge's instructions, the fact that such juror had read certain newspaper articles concerning the case is immaterial and not prejudicial to the defendant as he had no part in the verdict.⁴⁸⁴

484 United States v. Wolf, 102 F. Supp. 824, 825 (W.D.Pa. 1952).

Where in a treason prosecution a juror failed to disclose on voir dire that she was opposed to the death penalty but advised the clerk thereof after the jury was sworn but before the opening statement or taking of testimony, the trial judge could on ascertaining the juror's attitude, properly excuse her, and substitute an alternate juror.⁴⁸⁵ The case was wrong if it implies that an alternate cannot be substituted up to the time the jury commences its deliberations.

485 Gillars v. United States, 87 U.S. App.D.C. 16, 182 F.2d 962, 980 (D.C. Cir. 1950).

An alternate need not be substituted because in a prosecution for larceny when counsel for defendant asked whether any of the prospective jurors had ever been robbed or been the victim of thieving, one juror failed to state that a mirror had been stolen from his car but did not act in bad faith; and during the trial at a recess such juror asked the government attorney whether this had any bearing on the case to which he replied in the negative.⁴⁸⁶ The latter fact was not brought to the attention of the trial court until after conviction.

486 Ryan v. United States, 89 U.S. App.D.C. 328, 191 F.2d 779, 782 (D. C. Cir. 1951) cert. denied 342 U.S. 928, 72 S.Ct. 368, 96 L.Ed. 691.

A defendant may estop himself from objecting to failure to substitute an alternate juror for a regular juror. Where a juror during the trial went to the library to see "if he could find out about the ethics of a lawyer in taking cases" and this was made known to the court and defense counsel by the government, and the government moved that an alternate juror be substituted but defendant's counsel stated that they did not join the motion which was then denied by the trial court, the defendant could not complain on appeal.⁴⁸⁷

487 United States v. Witt, 215 F.2d 580, 584 (2d Cir. 1954).

IV. MODERN REFORM PROPOSALS

Challenges are now rare in England.⁴⁸⁸ They may be to the array or the polls. Challenges to the array lie where the sheriff has composed the jury panel in an unfair manner, or by choosing men on the ground of their religion. Such challenges are in writing. An individual juror may be challenged for cause shown, or peremptorily. A challenge for cause may be made propter honoris respectum, ⁴⁸⁹ as to a peer; propter affectum, as for being next of kin to the defendant; propter defectum, as for infancy or alienage; and propter delictum, because the prospective juror has been convicted of some infamous offense. Such challenges may be made by both the defendant and the prosecution.

The prosecution can make no peremptory challenges. The defendant can challenge peremptorily when he is charged with treason, ⁴⁹⁰ felony, or misdemeanor.⁴⁹¹ But he may not challenge more than seven jurors without cause.⁴⁹² No provision is made for alternate jurors. But if there is death or illness of a juror or of two jurors during a trial, the remainder may act if the defendant and the prosecution consent in writing.⁴⁹³

490 Treason Act, 1945, s. 1.

491 Criminal Justice Act, 1948, s. 35(1).

492 Criminal Justice Act, 1925, s. 15.

493 Where several defendants are jointly indicted each has a right to the full number of his challenges. If they refuse to join in their challenges, the prosecutor may try each of them separately, so as to avoid delay through exhaustion of the panel. Archbold, Pleading, Evidence Practice in Criminal Case 176 (32d ed. 1949).

In the Continental countries which used trial by jury in criminal cases the method of challenging jurors is not very different from the English system.⁴⁹⁴ But they are exercised more frequently. There may be challenges for certain causes. There may also be peremptory challenges in all cases irrespective of the grade of the crime; and the prosecution may challenge as well as the defendant. Continental jurists have attacked peremptory challenges as being only an historical remnant without any modern justification.

494 Mannheim, "Trial by Jury in Modern Continental Criminal Law," 53 L.Q. Rev. 388, 400 (1937).

Rule 35 of the Uniform Rules of Criminal Procedure drafted by the National Conference of Commissioners on Uniform Laws and approved by the American Bar Association in 1952 is to a large extent similar to Federal Rule 24. Subdivision (a) provides specifically for challenge to the array on the ground that the jurors were not selected, drawn or summoned according to law. A challenge to the array must be made and decided before any individual prospective juror is examined. A challenge to an individual juror must be made before he is sworn to try the case, but the court for good cause may permit it to be made after he is sworn but before any evidence is presented.

Under subdivision (b) the court may permit the prosecuting attorney and the defendant or his attorney to conduct the examination of prospective jurors. In brackets it is provided that the court may conduct the examination. The comment points out that while many writers favor examination by the court only, statutes in many states, allow examination by counsel.⁴⁹⁵

495 See Oden v. State, 166 Neb. 729, 90 N.W.2d 356, 73 A.L.R.2d 1182 (1958) noted 10 Mercer L. Rev. 210 (1958).

Under subdivision (c) it is provided that the prosecution and the defendant shall be entitled to peremptory challenges, but no number is specified. If there is more than one defendant, additional peremptory challenges shall be allowed. Again, no number is specified.

Subdivision (d) provides for alternate jurors, but no number is specified. In general the provision is similar to Federal Rule 24(c).