Jury Management
Creating, Balancing,
and Defending
Preface
The county board of jury
commissioners (hereinafter called “jury commission,” “commission,” or “board”) was
created by Georgia lawmakers in 1873 to establish a local board responsible for
comprising county jury lists from which
grand and trial (also called “petit” or “traverse”) juries could be selected.[1] Establishment of locally-based jury
commissions provided an enhancement in courts statewide intended to further
ensure criminal defendants a fair trial, consequently safeguarding fundamental
rights guaranteed to all citizens by the
The board’s membership initially
included three laypersons having no direct relationship with the courts or
county government, the county clerk and the ordinary (now called the “probate
judge”). Later, the number of laypersons serving on the commission was
increased to six. The county jury commission was, and continues to be,
structured upon democratic principles of government, with citizen participation
on the board ideally creating checks and balances—a “filtration
system”—that is essential for the active
recruitment of potential jurors while, at the same time, serving to reduce the
chances that “stacking” of jury lists could occur during the compilation
process.[2]
Lawmakers have long recognized
that, in order for the jury commission to properly perform its duties and
operate proficiently, it must be empowered to function as an independent unit
of local governmental and insulated statutorily against any external influences—i.e.,
from the court, officers of the court, law enforcement, the county governing
authority, or any other entity. Accordingly, the jury commission has always been
statutorily authorized—even required—to conduct its meetings “in secrecy” as a
means for protecting the sanctity of the process and insulating members of the
board from extraneous pressures as they scour the county to identify citizens who
are legally qualified and competent to serve as jurors for inclusion in the
county’s active jury pool.
Just how important a county jury
commission that efficiently performs its duties is can only be measured in
terms of the significance that jury lists they create bear on the work of
Disclaimer
The content of this section
of the Jury Management unit for the Certified Training for Superior Court
Clerks of Georgia is provided purely for instructional purposes. Although the
contents of this unit are derived from extensive legal research, the author’s
twenty-plus years of practical experience as a clerk of superior court clerk,
clerk of his county jury commission, and as an active participant in more than two
dozen death penalty cases, nothing contained herein should be construed as
dispensing legal advice or relied upon jury commissioners or clerks of superior
court in lieu of the advice of legal counsel, including instructions from the
court, the county attorney, and the district attorney of the circuit.
Definitions
The following special terms are used in this section:
Array – (
-r
)
tr.v. ar·rayed, ar·ray·ing, ar·rays – To set out for display or use; place in an
orderly arrangement: arrayed the whole regiment on the parade ground; n.
1An orderly, often imposing arrangement; 2. An impressively large number, as of
persons or objects.
Cognizable – (k
gn
-z-bl,
kg-n
-)
adj.— 1.Knowable or perceivable; 2. Law. Able to be tried
before a particular court.
Cognizable group – any class of residents of a county that ostensibly share social,
cultural, or racial, or sexual traits
Cross-section –also cross sec·tion
(krôss
kshn,
krs-)
n. – 1. A sample meant to be representative of a whole population;
2. Informal. A variety; a
diversity.
Fair—adj. –
1. Having or exhibiting a disposition
that is free of favoritism or bias; impartial; 2. Just to all parties; 3. Being
in accordance with relative merit or significance; 4. Consistent with rules,
logic, or ethics.
Jury commissioner – 1. “an officer charged with the duty of selecting the names to be
put into the jury wheel, or of drawing panels of jurors for a particular term
of court”; 2. a local official responsible for collecting lists of qualified
prospective jurors for submission the court.”[3]
Jury venire (see venire below) – “the
list of jurors summoned to serve as jurors for a particular term” or, when more
broadly used, the list of jurors of a county.
Jury wheel –
“physical device or electronic system for the storage and random selection of
the names or identifying numbers of prospective jurors. A machine containing
the names of persons qualified to serve as grand and petit jurors, from which, in
an order determined by the hazard of its revolutions, are drawn a sufficient
number of such names to make up the panels for a given term of court.”[4]
Venire
– (v-nr
,
-nîr)
n. –The panel of prospective jurors from which a jury is selected.
Qualifications
O.C.G.A. § 15-12-20 requires that each county have a board of jury commissioners. Qualifications of jury commissioners are that they:
- Must be discreet persons
- May not be practicing attorneys at law or county officers[5] and
- May not serve consecutive terms of office if he or she has previously served more than three years as a jury commissioner.
Contrary to popularly held opinions, the board’s membership does not have to be representative of the community or statistically proportionate by race, sex, or any other category to the total population of the county. There is no requirement that the membership provide representation of designated “road,” militia, or similar geographical or political districts.
Statutory Provisions
O.C.G.A. §
15-12-20. Board of jury commissioners; appointment; qualifications;
number; terms; removal
(a) In each county there shall be a board of
jury commissioners, whose members shall be discreet persons who are not
practicing attorneys at law nor county officers, who shall be appointed by the
chief judge of the superior court.
(b) Absent promulgation of a court rule pursuant to subsection (c) of this
Code section specifying a lesser number, the board of jury commissioners shall
be composed of six members. When the board is composed of six members, on the
first appointment two shall be appointed for two years, two for four years, and
two for six years. Their successors shall be appointed for a term of six years.
(c) In any county the chief judge of the superior court may establish by
court rule duly published and filed a board of jury commissioners composed of
not less than three nor more than five members. In counties in which the
numerical composition of the board has been established by court rule, the
first appointments to the board shall be fixed in such a manner that not more
than one member's term shall expire during any calendar year. The chief judge
shall adjust the composition and terms of members of the board in office at the
time of the publication of the court rule. Successors to members of the board
originally appointed under the provisions of a court rule shall be appointed
for a term of six years.
(d) In all cases, the chief judge shall have the right to remove the jury
commissioners at any time, in his discretion, for cause and appoint successors.
However, no person who has served for more than three years as a jury commissioner
shall be eligible or shall be appointed to succeed himself as a member of the
board of jury commissioners.
Board Membership
and Terms of Office
Unless local court rules provide otherwise for fewer members, the jury commission typically consists of six members, who usually serve for six years, with terms of office staggered even when membership is established by court rule to prevent total attrition of the entire board at once. [See O.C.G.A. § 15-12-20 (b) and (c) for additional related provisions].
Jury commissioners are state judicial officers responsible to the superior court and their actions are defended by the state attorney general.[6] Unless called upon to testify in “some court of justice or other legal tribunal of this state,” jury commissioners are required to “keep secret and inviolate” their deliberations during the discharge of their duties as commissioners.[7]
Reappointment of
Members
A jury commissioner cannot legally be reappointed (1) when, subsequent to being appointed and performing duties on the board, the commissioner is removed from office by the chief judge of superior court for “good and legal cause”;[8] or (2) after being appointed and serving three or more years of an unexpired term of another jury commissioner.
Appointment
Procedures
By law, the chief judge of the superior court appoints jury commissioners; however, since the clerk of superior court serves (hereinafter referred to as “the clerk” or “clerk”) as clerk of the jury commission (hereinafter also referred to as “the clerk” or “clerk”) and is the only elected county officer that works closely with the board, the clerk of superior court should have input as to appointments. An appointment is made by court order.
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Statutory Provisions O.C.G.A. §
15-12-22. Oath of office Jury
commissioners, before entering on the discharge of their duties, shall take
and subscribe before the judge of the probate court of their respective
counties the following oath, which shall be entered on the minutes of the
probate court:
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Performance of a jury commissioner’s duties requires jury commissioners to comprehend and comply with complex statues and case law since they must be able to defend in court various decisions, procedures, and actions affecting the jury compilation process, as explained further throughout this section. So, in addition to those statutory qualifications required by law [cited in O.C.G.A. § 15-12-20 (a)], jury commissioners should ideally be:
- Respected by other citizens throughout the community
- Able to read and understand laws and appellate cases
- Of above-average intelligence and possess the aptitude and ability to perform detailed clerical tasks
- Skilled in oral communicate effectively enough to convey information about duties and responsibilities of a jury commissioner, laws, appellate cases, and other information relevant to the jury creation process (particularly in a courtroom setting)
- Amicable and able to work with others in a group setting
- Goal-oriented, motivated, task-driven, and willing to work independently
- Honest, upright, and respected within the community, and
- Tight-lipped.
Processing Order of
Appointment and Oaths of Office
When a jury commissioner is appointed, the chief judge of the superior court should provide to the clerk of superior an order of the appointment.[10] The clerk should file, record, and index on the minutes of the superior court the order and, unless the chief judge has already done so, deliver the original order of appointment to the probate judge of the county. Pursuant to O.C.G.A. § 15-12-22, the probate judge should then administer the oath of office and the loyalty
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Figure 1. Clerks’ nomination of jury commissioner. |
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oath required by O.C.G.A. §§ 45-3-11 and 45-3-15 to each appointee. After doing so and causing the subscribed oath of office to be filed in the probate court, the probate judge should deliver a certified copy of the appointment to the clerk of superior court. The clerk should file the subscribed oath and record it upon the minutes of superior court since the oath may need to be produced as evidence in the event of a challenge to the array of the grand or trial juries (which is discussed beginning on page 36.
Because the clerk is regularly asked to provide information to the court, parties in criminal actions, and attorneys regarding the composition of the jury commission, a filing system containing copies of jury commissioners’ oaths and a roster of active jury commissioners’ terms of office should be maintained by the clerk. The clerk should provide notice each year to the chief judge of superior court of terms of office of commissioners that will expire and for which appointments are required. Again, the clerk should collaborate with the chief judge and nominate candidates for the board, since doing so helps ensure that judicious, qualified commissioners are appointed. Figure 1 is an example one clerk’s means of suggesting candidates for the jury commission.
As a measure of politesse, the clerk should prepare and present to each new appointee a certificate of appointment. The Sample Certificate of Appointment of Jury Commissioner on page 40 shows a document created with Microsoft Word for this purpose.
Duly and properly filed jury oaths of a county jury commissioner are illustrated in Figure 2 below.
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Training
Although the topic has long been discussed, there is no formal, required, or mandated statewide training for jury commissioners. Some chief judges of superior court conduct ad hoc orientation programs for new appointees but, for the most part, jury commissioners are deserted once they are appointed and are consequently forced to perform their duties and responsibilities without basic and, much less, proper training.
Since each clerk of superior court of the state serves as the clerk of his or her respective county’s jury commission and works closely with commissioners, the clerk should logically develop a jury commissioners’ training curriculum and become knowledgeable enough to independently provide instruction to commissioners at the following times:
- Immediately after the jury commissioner is appointed or before the jury commissioner begins performing jury creation or revision duties
- Each year when the General Assembly creates or amends existing laws pertaining to jury commissioner’s duties or any other statute directly or indirectly affecting such duties
- When a substantive state or federal appellate court decision affects the duties of jury commissioners or the methodology for creating or revising juries; and
- As soon as practical after a challenge to the array of the grand or petit jury is filed, but prior to the court testimony of jury commissioners relative to composition of the jury.
The content of an instructional program for jury commissioners should include the following resources:
- state and federal laws, appellate court decisions, and rules of the court
- Georgia Jury Commissioners’ Handbook[11]; and
- Uniform Rules of the Superior Court, Unified Appeal, Rule 34.
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Figure 3.
General minutes of a county jury
commission |
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Work Schedule
The jury commission is an independent body and, therefore, establishes its own work schedule. By law, county jury lists must be revised at least biennially (that is, once every two years), which serves only as a deadline for the jury commission and not as a schedule for performing essential work necessary to conduct the revision.
Many jury commissions throughout the state meet on a regular basis, some daily, while others meet only during the year when, by law, the biennial revision must be completed. Generally, the demographics of a county directly affect the amount of work that a jury commission must complete to effectively perform its statutory duties. For example, a jury commission of a county that is transient or that has an extremely large population may need to meet regularly to revise jury lists, possibly even conducting monthly revisions, in order to keep jury lists current, while the jury commission of a more stable and less populated county may need only to revise jury lists every two years.
The jury commission may elect officers, or at least a chairperson, for the purpose of establishing work schedules, coordinating revisions efforts, and delineating responsibilities. However, in most counties, the jury commission will ordinarily rely upon the clerk for direction.
Minutes of Proceedings
Criminal defense experts advise against recording or reducing to minutes proceedings of the jury commission.[12] When jury commissioners are compelled to testify in court, recording and minutes of meetings only serve to exacerbate jury commissioners’ testimony (see Testimony of Jury Commission and Clerk on page 38). If kept, minutes should indicate only when jury commissioners met, what, if any, jury revision tasks were begun or completed, and the attendance or absence of jury commissioners. Minutes should be kept by the clerk and preserved in accordance with applicable record retention schedules and accepted records management practices.
Figure 3 on page 8 is an example of general minutes kept by a jury commission.
Clerk of Board of Jury Commissioners
The clerk of superior court must serve as the clerk of the jury commission of the
clerk’s respective county. While subsection (b) of O.C.G.A. § 15-12-23 provides
that some other person may be appointed “jury clerk” by the chief judge of
superior court in counties with specific-sized populations (see page 11), the Georgia Court of Appeals averred in Lopez
v. The State and Melandro v. State
(260
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Statutory Provisions O.C.G.A. § 15-12-23 (a). Clerk
of board of jury commissioners |
Oath of Office
The clerk is required by O.C.G.A. § 15-12-23 (a) to take an oath before the judge of the probate court “before entering upon the performance of his duties as clerk of the board.” At the beginning of each term of office as clerk of superior court, the clerk should have the probate judge re-administer the oath required of the clerk of the jury commission.[13] The oath of the clerk of the jury commission should be filed and recorded on the minutes of superior court, in the same manner as provided for jury commissioners on Page 6. An example of the clerk’s oaths of office is shown in Figure 4 on page 10.
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Like jury commissioners, the clerk is statutorily required to “discharge faithfully his duties as required by law and never to divulge any of the proceedings and deliberations of the jury commission unless compelled to testify thereof in some court of this state.” A clerk of superior court can be removed from office for failing to or illegally performing duties as clerk of the jury commission.
O.C.G.A. § 15-12-23 (a) provides that the clerk “shall perform all the clerical duties required by law” for the jury commission. While varying from county to county, duties of the clerk of the jury commission generally include:
- Procurement of statutorily mandated and other required source lists
- Calculation of statistical data
- Performance of clerical duties necessary to eliminate duplicated names
- Printing, mailing, abstracting, and reconcilement of jury questionnaires
- Regularly updating and correcting jurors’ personal information (addresses, social security numbers, ages, etc.)
- Tracking jurors who become ineligible for service subsequent to each jury revision (for removal by the commission or clerk from respective jury pools); and
- Maintenance of all official jury data and other jury commission materials and data.
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Statutory Provisions O.C.G.A. § 15-12-11. Appointment
of court personnel in certain counties; juror questionnaires; construction
with other laws
O.C.G.A. § 15-12-23 (b). Appointment
of court personnel in certain counties; juror questionnaires; construction
with other laws (b) (1) In all counties of
this state having a population of not less than 183,000 and not more than
216,000 according to the United States decennial census for 1990 or any such
future census, the chief judge of the superior court of such counties shall
have the power to appoint a jury clerk and such other personnel as may be
deemed necessary or advisable to dispatch the work of the court, and the
appointments to these positions and the compensation therefor shall be
determined by said judge without regard to any other system or rules, said
personnel to serve at the pleasure of said judge, and the salaries and
expenses thereof, and any attendant expense of administration of the courts
are determined to be contingent expense of court, and shall be paid as
provided by law for the payment of contingent expenses. The duties of said
personnel shall be as prescribed by said judge. (2) All prospective jurors
in such counties shall be required to answer questionnaires as may be
determined and submitted by said chief judge of such counties concerning
their qualifications as jurors. |
Other Court Personnel
As previously noted, Code sections 15-12-11 and 15-12-23 (b) shown above authorize appointment of a “jury clerk” in counties having populations of 183,000 to 216,000 and 600,000 or more, but the jury clerk may not legally perform duties ascribed exclusively by law for the clerk of superior court—specifically duties of the clerk of the jury commission.
Jury Qualification
Questionnaires
Both O.C.G.A. § 15-12-11 and 15-12-23 provide that the court may require prospective jurors “in all counties” to answer written questionnaires concerning their qualifications as jurors. A properly designed “Jury Qualification Questionnaire” is an invaluable tool used by jury commissions to ascertain jurors’ personal information, particularly when the information is unavailable from data derived from supplemental source lists.
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Figure 5 (a). Sample jury qualification
questionnaire – Front Side |
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Bulk creation and delivery of questionnaires en masse—that is, all at one time—is very labor-intensive and costly. Alternatively, questionnaires may be distributed periodically (see other methods for identifying jurors on page 18). The jury commission or the clerk of superior court in his or her capacity as clerk of the jury commission—not a jury clerk or some other personnel appointed by the court—should administer the creation, distribution, and collection of questionnaires, as well as compilation of juror eligibility data there from derived.
Figure 5 (a) above and 5 (b) below illustrates a paper jury qualification questionnaire.
Figure 5 (b). Sample jury
qualification questionnaire – Reverse Side. |
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Online Jury Qualification Questionnaire
Posting a jury qualification questionnaire on the Internet enables jurors to readily provide updated personal information. By linking the jury qualification questionnaire to a web page that contains information about jury service, new jurors are encouraged to submit their names and personal information voluntarily, thereby providing a simple system for recruiting new potential jurors (see Supplemental Source Lists on page 18 for suggestions for identifying names of additional potential jurors’ names not included on the county’s voter registration or drivers’ license lists). View www.libertyco.com/juryquest.htm for an example of an online jury questionnaire.
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Statutory Provisions O.C.G.A. § 15-12-40
(a). Compilation, maintenance, and revision of jury list –
non-mechanical procedure |
Compilation of Trial (Petit) and Grand Jury Lists
Since electronic, computer-based software is currently being used by almost all superior court clerks of the state for maintenance and management of jury lists, O.C.G.A. § 15-12-4 (a) (page 14) appears at first blush to apply only to clerks’ offices that utilize “non-mechanical” means for such purposes (i.e., a “jury box”). However, the subsection contains explicit provisions that govern compilation, maintenance, and revision of jury lists without regard to the type of jury management system used. Jury commissioners should understand and apply these provisions throughout the jury compilation process. [14]
Those provisions are:
a. Jury commissioners shall compile, maintain, and revise the county’s trial jury list “at least biennially” (i.e., every two years), unless “otherwise directed by the chief judge of superior court”[15]
b. The trial jury list must contain the names of “a fairly representative cross section” of “upright and intelligent” citizens of the county
c. The grand jury list must contain the names of “a fairly representative cross section” of the “most experienced, intelligent, and upright citizens of the county”
d. When revising the trial and grand jury lists, the jury commission must “make use of” drivers' licenses or personal identification cards issued by the Department of Motor Vehicle Safety and the county’s voter registration rolls.
Basic
Statutory Requirements
To serve as either a trial or grand juror, individuals must:
- Be a legal resident of the
- Be 18 years of age or older
- Not be a convicted felon or one whose “voting rights have been removed” (see O.C.G.A. § 15-12-40.2 below)
- Not have been declared mentally incompetent and, as a result, had his or her voting rights removed.
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Statutory Provisions O.C.G.A. § 15-12-40.2. List of
convicted felons and mentally ill provided to board of jury commissioners. It shall be
the duty of the county board of registrars to provide the board of jury
commissioners with a copy of the lists of persons who have been convicted of
felonies in state or federal courts or who have been declared mentally
incompetent and whose voting rights have been removed, which lists are
provided to the county board of registrars by the Secretary of State pursuant
to Code Section 21-2-231. Upon receipt of such list, it shall be the duty of
the board of jury commissioners to remove such names from the trial and grand
jury lists and to mail a notice of such action and the reason therefor to the
last known address of such persons by first-class mail. |
By law, the county board of registrars must apprise the jury commission of persons convicted of felonies or “who have been declared mentally incompetent and whose voting rights have been removed.” The jury commission is required to remove such persons’ names from the trial and grand jury lists and to provide notice to such persons as provided in O.C.G.A. § 15-12-40.2 (at right).
A misdemeanor conviction does not affect an individual’s eligibility to serve as either a grand or trial juror.[17] A person who has been placed on probation pursuant to the First Offender Act (O.C.G.A. §§ 42-8-60 through 42-8-65) is not incompetent to serve on a grand or trial jury under paragraph (b) (2) of O.C.G.A. § 15-12-60, either before or after being discharged without court adjudication of guilt.[18] While the state’s voter registration laws may provide otherwise, the attorney general has opined that a pardon or restoration of civil rights is necessary before a convicted felon can serve on a grand jury, even if the sentence has been completed.[19]
In addition to the rudimentary statutory qualifications for all jurors indicated above, trial jurors must be “intelligent and upright” citizens of the county.[20]
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Statutory
Provisions 15-12-60. Qualifications of grand jurors (a) Except as provided in
subsection (b) of this Code section, all citizens of this state 18 years of
age or older who are not incompetent because of mental illness or mental
retardation, who have resided in the county for six months preceding the time
of service, and who are the most experienced, upright, and intelligent
persons are qualified and liable to serve as grand jurors unless
exempted by law. |
Specific Qualifications of Grand Jurors
By law (see O.C.G.A. § 15-12-60 below), grand jurors must be rudimentarily qualified for service as previously indicated, but must also have resided in the county for six months prior to
the date for which
they are summoned to serve as grand jurors. An individual is automatically
barred from service as a grand juror if he or she holds or has held within two years prior to being summoned for grand jury service “any elective office in state or local government” and when he or she was convicted of a felony and “has not been pardoned or had his or her civil rights restored.”
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Statutory Provisions O.C.G.A. § 50-3-100. English
designated as official language; constitutional rights not
denied; authorization for documents and forms in other languages;
exceptions (a) The English language
is designated as the official language of the State of |
The jury commission must deem an individual as one of “the most experienced, upright, and intelligent persons” of the county before adding his or her name to the grand jury list.[21]
There is no statutory
provision requiring trial or grand jurors to speak the English language.
Contrarily, O.C.G.A. § 50-3-100 (see page 16) provides that, even though English is the official
language of the state, this Code section shall not apply (1) “when in
conflict with federal law” and (2) “when the public safety, health, or justice requires the use of other
languages.”
Jury service is not a right or privilege but is “a burden which the state
summons certain citizens to bear;” yet, when interpreted literally, exclusion
of persons of a cognizable group because they do not speak English could
precipitate a legitimate, bona fide basis for upholding a challenge to the
array of a grand or petit jury.[22] In the future, courts may be required to
provide interpreters for jurors as a consequence.
Primary Source Lists
Legally, the primary source of the jury list is the list of registered voters rather than the population as a whole, since it is from the registered voters list that the jury commissioners select the initial jury array.[23]
The official list of registered voters of a county can be obtained from the Georgia Courts Automation Commission (GCAC), which receives electronic voter information from the Office of the Secretary of State and serves as a conduit for distribution of the data to clerks of superior court for the benefit of county jury commissions. Currently, requests for voter lists should be made to:
GCAC
Phone: 1-800-298-8203
The qualifications of voters and jurors are almost identical, so, the voter registration list contains all personal information required for prospective jurors—including name, address, date of birth, race, sex, and even Social Security number. GCAC will provide the voters’ list in ASCII, field-delimited format, facilitating easy importing of data into various off-the-shelf database software programs (e.g., Microsoft Excel and Access) that can be used for sorting and correcting individual’s personal information, compiling racial and sexual statistical information, and eliminating duplications.
There are two major drawbacks to using voter lists as a primary source for identifying potential jurors:
- Citizens
may be more hesitant to vote, since doing so is perceived by the public as
the only means whereby they are identified and made eligible for jury
serve; and
- Since
enactment of the National Voter Registration Act (commonly called “The
Motor Voter Act”) in 1993 by Congress, many people register to vote, then
never vote or merely vote once and no more. The act severely restricts
local and state election officials from purging of inactive and stale
voters from county voter rolls, which results in the amassing of large
numbers of persons on the voters’ whose names should be removed—specifically
non-residents. (Note, by law, the Secretary of State and other state
agencies are required to provide a procedure for removal of the names of
convicted felons, deceased, and mentally incapacitated persons from the
voter registration list).
Motor Vehicle Operators’ Licenses
Upon receiving a written request from the clerk of superior court or the county jury commission, the Department of Motor Vehicle Safety (DMVS) must provide a printed or electronically formatted list of persons in the county licensed to operate a motor vehicle. Historically, the list provided only partial personal information since the department was prohibited by law from collecting and distributing and individual’s race, birth date, and Social Security number, but recently there have been initiatives to include collection of such data.[24] Also, lists formerly included names of person younger than 18 years of age, although the department now has the ability to electronically filter names by age.
Currently, the following persons within the Department may be contacted to obtain a county’s motor vehicle operator licensing list:
Rodney Singley (Phone – 678-413-8894); or
Lisa Smith (Phone – 678-413-8881)
The DMVS’ address is:
Post Office Box 80447
When a list is not representative of the county, the jury commissioners must find ways to supplement their sources of potential jurors’ names.[25] O.C.G.A. § 15-12-40 and the United States Constitution, Amendment 14, require that the jury list be supplemented by other sources if the voter list produces a jury list with substantial disparity.[26]
The jury commission may use any other sources it deems appropriate to supplement disparately arrayed jury lists. Exhibit 1 on page 7 of the Georgia Jury Commissioners’ Handbook shows various source lists and provides potential inherent biases that may result from using each source. Whenever practical, commissioners should procure source lists that are computer-generated. Doing so significantly reduces costs and the amount of labor necessary for incorporating or migrating source-list data with existing jury data and for checking and correcting consolidated database for duplications, missing data, and data input errors.
Names of additional prospective jurors may be obtained from:
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Statutory Provisions O.C.G.A. § 15-12-40
(b). Compilation, maintenance, and revision of jury list—mechanical
or electronic procedure (b) Mechanical or electronic procedure. |
- Jurors summoned for jury service who are willing to “share their burden” for jury duty with friends, neighbors, co-workers, and other fellow citizens (which can be stimulated by the clerk urging jurors to provide names of others for consideration for inclusion in the county’s jury pools)
- Persons responding to a paper or online jury questionnaire who are willing to report names of others that they deem fit for jury service (which is facilitated by providing a section on the jury questionnaire whereby recipients of questionnaires are asked to provide names and addresses of other persons who are 18 years old and who reside in the prospective juror’s household). For information on the value of web-based jury questionnaires, see page 13.
- Advertisements sponsored by the jury commission and published in the legal organ of the county or some other publication, whereby citizens interested in serving as jurors but who have never been summoned are asked to complete a questionnaire (which can be provided in the advertisement, by the clerk’s office upon request, or on the clerk’s or court’s website). For illustration, visit www.libertyco.com/jury.htm; and
- Names of persons that jury commissioners or the clerk know are not on the jury list but who should be since they are statutorily qualified to serve. (Note: Jury commissioners can “make up jury lists” based upon their personal knowledge of the citizens of the county).[27]
Birthday Letters
The Clerk of Superior Court of Liberty County sends all prospective jurors and jurors currently on the county’s grand and petit jury lists a jury qualification questionnaire on each juror’s birthday. The questionnaire accompanies a “birthday letter,” in which the clerk wishes the clerk extends wishes for a happy birthday to the individual. The questionnaire enables the jury commission to identify new, potential jurors while, at the same time, updating personal information about jurors already included in county jury lists. It enables the clerk’s office staff to mail questionnaires over a period of time, as opposed to mailing thousands of questionnaires at one time.
A sample of the birthday latter is provided in Figure 9 on page 49.
Provisions are
Directory
Statutory procedures for creating jury lists set forth in O.C.G.A. § 15-12-40 are “merely directory,” meaning that a jury commission’s failure to revise a jury list in accordance with the timetable set forth does not automatically invalidate the jury list or deprive the defendant of any right to which he or she is entitled.[28] Even though courts have decided that failure to revise every two years has no effect on any rights guaranteed a defendant, which is especially true where the court sets out in the record a reasonable grounds for such slight delay, the jury commission should never delay jury revision beyond the two-year period unless conditions extenuating and meritorious circumstances exist that impede judicious revision.[29] Doing so causes jury lists to become quickly outdated, diminishes the attendance rate of jurors summoned for jury service, complicates future revision efforts, and causes hurdles for jury commissioners when trying to defend a challenge to the array.
Provisions for
Non-Mechanical vs. Mechanical Jury Management Systems
Non-Mechanical
When a non-mechanical jury management system is utilized, no new names may be added to the trial or grand jury lists “until those names originally selected have been completely exhausted or until a revised list has been properly created” and the grand jury list shall not exceed two-fifths of the number of citizens on the county’s most recent jury lists (two-fifths equals 40 (%) percent or .4 multiplied times the total of persons on the most recent trial jury lists). Complete exhaustion of the jury box is not required “before drawing names for jury service from the boxes containing the revised jury.”[30] The Supreme Court of Georgia held in 1979 that, where the jury commissioners of a county failed to revise the jury array for a period of three years and eight months, this alone did not invalidate the jury.[31]
Mechanical
Conversely, when a mechanical or electronic system is used:
- The jury commission “may revise such lists from time to time by adding names to the lists, correcting names and other data on the lists, and deleting names from the lists by reason of death or other legal cause”
- The number of citizens in the grand jury box shall contain, “as a minimum, a number equal to four times the number of grand jurors required to be drawn in the county annually, but not to exceed 5,000 grand jurors”
- The trial or grand jury box for the county may be compiled by mechanical or electronic means as provided for in a plan (see O.C.G.A. § 15-12-42) for selection of persons for trial and grand jury boxes by such means
- Trial and grand jury lists shall be stored in a “security data processing storage bank” from which all trial or grand juries in the county shall be selected; and
- The computer shall be programmed to scan the entire appropriate jury box under the formula and plan adopted pursuant to O.C.G.A. § 15-12-42.
Unless otherwise provided by local court rule, the clerk may maintain and operate electronic equipment used to store and retrieve jury data.[32]
A sample court rule relating to electronic jury selection is shown in Figure 6.
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Figure 6. Sample local court rule for
electronic jury selection system. |
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Statutory Imperatives
Both the grand and trial jury lists of a county must include a fair cross-section of the eligible members of the community, not every eligible member of the community.[33] The 1983 Georgia Constitution (Article I, Section I, Paragraph XI) requires that the jury list be composed of upright and intelligent persons, not that every upright and intelligent person.[34] The courts have explicitly provided the following guidelines for jury commissioners with respect to what constitutes a fair cross-section of the community:
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Statutory Provisions O.C.G.A. §
15-12-1. Exemptions from jury duty (2) Notwithstanding
paragraph (1) of this subsection, any person who is a full-time student at a
college, university, vocational school, or other postsecondary school who,
during the period of time the student is enrolled and taking classes or
exams, requests to be excused or deferred from jury duty shall be excused or
deferred from jury duty. |
a. The “jury roll does not need to be a perfect mirror of the community or accurately reflect proportionate strength of every identifiable group, for while the cross-sectional concept is firmly embedded in the law, the Constitution does not require that the jury or jury venire be a statistical mirror of the community”[35] and
b. There is no requirement that the jury list include the name of every citizen of the county that is eligible for jury service, only that the list includes a fair, cross-section of the eligible members of the community, not every eligible member of the community.[36]
However, the courts have held that no “cognizable group” can be excluded from jury lists because of race or gender.[37]
Appellate courts have stated that “the terms ‘intelligent and upright’ and ‘most experienced, intelligent, and upright’ are neither vague nor indefinite.”[38] An ‘intelligent citizen’ is defined as “one possessed of ordinary information and reasoning faculty.”[39] An ‘upright citizen’ is “one who is honorable, honest, and who will do right as he or she sees it.”[40] Jury commissioners must further define each term so that, while performing their duties, the consistently and without bias apply each term as a standard for the addition or exclusion of citizens’ names to or from the county’s trial and grand jury lists.
Age is not a recognized class for the purpose of jury representation.[41] Exclusion of a certain age group from the jury pool does not result in a per se illegal array.[42] The requirement that jury commissioners must select the most experienced to make up the grand jury box does not necessarily result in the rejection of young adults contrary to the Unites States or Georgia constitutions.[43] Younger persons may be excluded from the grand jury because of the legal requirement that “only a limited number of the most experienced persons…may be selected for inclusion on the grand jury.”[44] Appellate courts have held: (1) that “it is extremely doubtful that any age group has such a distinctness as a group that it can be a ‘significantly identifiable group’ under (any statutory provision) which requires the jury commissioners to supplement the jury lists with persons from such a group if it is not fairy represented otherwise[45] and (2) young adults age 18 to 29 do not constitute a cognizable group since the group is not defined and the views of held by persons in that age group could be represented by other members of the community who are older.[46]
Women are an identifiable group for purposes of grand jury representation.[47]
Members of a grand jury may not be selected in any manner that discriminates against persons of a particular race or religion. However, the basic theory of the functions of a grand jury does not require grand jurors to be impartial and unbiased.[48]
Appellate courts have said that a trial will not be struck down because it so happens that the particular grand jury panel which returned the indictment or presentment was not in fact representative, nor will the court’s denial of the challenge be overturned unless it appears undeniably that there has been in fact a systematic exclusion of some significantly identifiable representative segment of the population of registered voters.[49]
Judges of superior court or “some other person who has been duly appointed by order of the chief judge” are authorized by O.C.G.A. § 15-12-1 (a) (1) to excuse summoned jurors from jury service. When a juror is excused, the juror is permanently relieved of jury duty, while granting a a deferral from jury service simply means that the juror is temporarily relieved from serving as a juror until a “date and time certain” within the term or next succeeding term of court.
Deferrals and excusals from jury service indirectly and directly affect the array of grand and trial jurors and, because they do, the clerk or other court official responsible for granting exemptions should exercise due diligence when granting them.
Deferrals from Jury Service
Reasons for deferral include:
- Work necessary for the public health, safety, or good order
- Matriculation of a fulltime student at a college, university, vocational school, or other postsecondary school, provided the student is “enrolled and taking classes or exams”
- Primary caregiver “having active care and custody of children under four years of age,” upon execution of an affidavit as provided in O.C.G.A. § 15-12-1 (a) (3).
- Service in any branch of the United States Armed Services, provided the juror is on “active duty”[50]
- Legislators who request deferral due to their legislative duties (O.C.G.A. § 15-12-2); and
- Other good cause.[51]
Other good cause includes reasons provided for by local court rule, which may include temporary medical and psychological illness, as well as other types of hardships.
Subsection (a) of O.C.G.A. § 15-12-1 gives broad discretion to a trial judge to excuse prospective jurors when the court finds that, during the term of court, the juror provides a statutory or other good cause, which authority may be delegated to some other person appointed by the chief judge of superior court after the establishment by court order guidelines governing excuses.[52] Except for permanently disabled and disqualified persons, any juror meeting the minimum legal requirement for excusal shall be deferred to a date and time certain with that term or the next succeeding term, as set forth in the order or excusal, and the clerk is responsible for ensuring that the juror is sent a summons for the designated time. Most computer-based jury management systems facilitate this practice electronically, thereby eliminating the need for the clerk to keep a list of deferred jurors to whom summonses must be sent.
In a death penalty case, the court designee who defers and excuses jurors pursuant to local court rule should have a “written order authorizing this action which (provides) the clerk with guidelines.”[53]
Reasons for Permanent
Excusal of Jurors
Reasons for permanent exemption from jury service include:
- Death
- Lack of residency (see Qualifications on page 15)
- A permanent physical or mental disability that causes an individual to be eternally unable to serve as a juror (as stated upon affidavit by a physician, psychiatrist, or psychologist certifying the juror’s incapacity)
- Age, provided that an individual is 70 years of age or older and a requests in writing that the jury commission remove his or her name from the county’s jury lists; or
- Conviction of a felony, unless the individual has been pardoned, paroled, or has his or her civil rights otherwise restored.
Creating and Revising Jury Lists
(Note: Since most clerks of superior court use an electronic jury management software program, discussion henceforth is restricted for requiring computer-based data. Also, because steps are similar for creating and revising lists, contents of this section are primarily confined to the revision process).
The jury commission must first decide which primary source list(s) will be used for initial revision of the county’s jury lists and then obtain requisite data, either in printed or electronic format, from the responsible state agency. (See Source Lists, beginning on page 15, for related information). Electronic data is best because data derived there from does not have to be re-keyed by the clerk but, instead, can be migrated or imported into existing database programs. Although not required by law, most jury commissions opt to revise the trial jury before revising the grand jury.
State agencies should provide the jury commission lists compiled in ASCII format and preferably in a field-delimited sequence, thereby facilitating expedient importing of data into standard off-the-shelf software, such as Microsoft Excel and Access. Such programs allow even novice users to systematize, sort, edit and compile statistical reports from data, although it may be necessary to employ a computer programmer and or software vendor to assist with data migration or conversions tasks.
Preliminary Working
List
If more than one primary source list is used, data fields containing specific information for individuals must be similar enough to facilitate the systematic merger of like data, which is essential for production of a maximum yield of potential jurors. It is best to combine the lists before correcting and editing data.
The preliminary working list may consist of one primary source list or a list created from the merging of other source lists. The working list should be checked either manually or by a computer verification program to reveal duplicated names and personal information. Removal of duplicated data is necessary to ensure that no replicated jurors on the final revised jury list. This process is facilitated best electronically since manual edits are very labor-intensive. Because computers are programmed to “think” logically, illogically duplicated information can only be discerned by humans. An alphabetic listing of jurors should be printed and jury commissioners should visibly inspect each name on the list to help further eliminate duplications.
After duplications are removed, it is necessary to produce statistics for analyzing the number of jurors, by race and sex, which may be derived from combining the preliminary working list with the corresponding existing jury list. The data must then be compared to the most recent decennial census data for the county.
Census Data
Either the commission or the clerk should obtain the most
recent decennial
ü www.gadata.org/information_services/Census_Info/votingage2002DONE.htm;
or
ü www.censusubureau.org
A sample of the 2000 demographic data for all
Census data should only include demographics for persons 18
years of age or older. For example, the following racial demographics are
indicated for
|
A |
B |
C |
D |
E |
F |
G |
H |
I |
|
Amount |
Total |
White |
Black/African- American |
American Indian/Alaska Native |
Asian |
Native Hawaiian/Other Pacific Islander |
Other Race |
Two or More Races |
|
# |
41,916 |
21,066 |
16,917 |
238 |
868 |
170 |
1,768 |
889 |
|
% |
100.00% |
50.26% |
40.36% |
.57% |
2.07% |
.41% |
4.2% |
2.1% |
Each column’s total indicates residents of the county 18 years of age or older. The Total column reflects the total number of persons residing in the county in 2000, while the White column indicates total number Caucasians and the Black/African-American column indicating likewise those persons who consider themselves of African descent. The percentage of persons in each column must be calculated by the jury commission or the clerk so, later in the revision process, the percentage of each column’s 18-year-old-and-older population can be compared the corresponding percentage for the jury list. The process must be repeated for each column.
To calculate percentages for each column, divide the number in each column by the number in the Total column. For example, to calculate the percentage of white residents, divide 21,066 by 41,916, which equals .5026, then move the decimal two digits to the right (between the 0 and 2), which can be translated into 50.26 (%) percent.
Columns E through I contain totals for residents of other races not reported in Columns A through D. If the number and corresponding percentage of persons reported in any of those five columns is substantial enough to merit classification as a “cognizable group,” then the jury commission must attempt to include a comparable number of qualified persons of that race on the county’s grand and trial jury lists. After calculating percentages for each column and comparing the percentages to corresponding percentages produced by the most recent census, jury commissioners must decide if any race is a distinct group that merits definite representation. If not, the races in Columns E through I may be combined to form an “other” category. The disparity of others on the jury list must ensure appropriate representation.
Sample Jury Commissioners’ Worksheet for
Calculation of Number of Jurors Needed for Trial Jury Pool
(Created in Microsoft Excel)
Hispanics
Many courts have determined that Hispanics are a distinctive group for Sixth Amendment purposes, meaning that they may comprise a cognizable group in some counties. They are not a race, but a class of persons who share common, definite social, religious, economic, and cultural characteristics, as well as a common language.[54] Some Hispanics consider themselves to be Caucasian, while others claim to be of African descent or some other race.
In Smith v. the State, the Georgia Supreme Court held that, even though a cognizable group exists, there may be bona fide, legal, and defensible reasons for under-representation and broad disparities on the trial and grand jury lists—the most significant reason in the Smith case being that a majority of Hispanics in Hall County were not U.S. citizens and were thus ineligible for jury service.[55] Systematic exclusion is almost impossible to prove when the source lists used for jury revision contains names of most citizens of the county, irregardless of individual’s race, sex, religious preference, or other affiliation, who have availed themselves to procedures established by law that basically ensure their inclusion in county jury lists—which is a the best reason for using voter registration and drivers’ license lists as primary sources for obtaining jurors’ names.
Inclusion as a
Cognizable Group
When the most recent decennial census indicates that Hispanics comprise a substantial portion of the county’s total population, jury commissioners must make a special effort to identify and include a proportionate number of Hispanics in the trial and grand jury pools. Personal information on source lists may indicate that an individuals’ race is “Hispanic” or “Latino” even though neither Hispanic nor Latino is a scientifically recognized racial classification. When individuals do so, the jury commission should mail a follow-up jury qualification questionnaire that provides a section in which the individual’s race is reported as white, black/African-American, American Indian/Alaska native, Asian, Native Hawaiian/other Pacific Islander, other Race, or two or more races, making the racial categories on the questionnaire consistent with those categories reported on the U.S. census.
Another section should be provided on the questionnaire, wherein the respondent indicates if he or she considers himself Hispanic or Latino.
Many jury management
software programs allow recordation of both an individual’s race and his
Hispanic/Latino affiliation. In other words, a person indicating on a
questionnaire that he or she is a black/African-American may also report that
he or she is Hispanic. If Hispanics comprise a distinct portion of the total
population of the county, the jury management program should enable Hispanics
to be included and reported as both a racial and cultural category on county
jury lists, enabling comparison of percentages of both categories to
corresponding categories on the
For example, using 2000 census
data for
Similarly, the total disparity of Hispanics on the grand jury was even greater but, because thre are more rigid qualifications for grand jurors, the jury commission has also successfully defended against a challenge to the array of the grand jury on the same grounds cited in Smith v. State.
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Statutory Provisions O.C.G.A. § 15-12-42 (a). Selection of jurors –
non-mechanical procedure.
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Selection of Jurors
O.C.G.A. § 15-12-42 (a) and (b) provides procedures that must be followed when selecting the trial or grand jury venire. Subsection (a) applies to counties utilizing a non-mechanical system, while subsection (b) applies to electronic systems.
Jury commissioners should understand these procedures as they work to compile the county’s grand and trial jury lists, specifically, subsection (b) provisions which detail the elements that must be included in local court rules applicable to selection of jurors (see an example local court rule in Figure 6 on page 21). As indicated below, the plan should provide for a “fair, impartial, and objective method of selecting jurors for jury service with the aid of mechanical or electronic equipment, using the jury boxes compiled in Code Section 15-12-40.”
Safeguards
O.C.G.A. § 15-12-42 (b) (2) mandates that local court rules shall “contain such other safeguards relative to the creation, handling, maintenance, processing, and storage of magnetic tapes, data banks, and other materials and records used in the selection process.” In many instances, superior court clerks and staff of the clerk’s office are authorized by the plan to update jurors’ personal information, to inactive ineligible jurors, and to independently select juries at the court’s request. Lists should remain intact once the jury commission creates them and the array should not be subsequently altered in any manner by anyone—other than as provided for by law. It is critical that the clerk implements safeguards to prevent unauthorized or illegal alteration or removal of information on any jury list created and certified by the jury commission.
Since the clerk performs specific clerical duties for the jury commission, the commission should provide in writing to the clerk documentation of specific duties the clerk is authorized to perform. See Figure 7 on page 31 for an example.
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Statutory
Provisions O.C.G.A. § 15-12-42
(b). Selection of jurors –mechanical procedure. (b) Mechanical or electronic procedure. |
Under no circumstances should the clerk or clerk’s staff perform clerical duties relative to jury selection, management, or maintenance that is not authorized by law, court rule, or the written agreement executed by the jury commission. Doing so may result in removal of the clerk from office or sanctions against the clerk and a challenge to the array of the jury being upheld. Tainting of a jury pool can result from improper deferral and excusal of jurors, so due diligence should be exercised when doing so. When in doubt, the clerk or other person responsible for deferring and excusing jurors should strictly comply with local court rules and
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Figure 7. Jury commission order delineating
clerk’s duties. |
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Continued
on next page |
|
In Figure 7, the jury commission authorized the clerk
to perform specific duties, including removal from active jury lists the names
of deceased persons, persons over 70 years of age requesting excusal from
service, and convicted felons.
The jury commission stated specific tasks that the
clerk was barred from performing—including removal of names from lists, except
as provided for by court rule or general law, the addition names to lists, and the
re-designation of the type of jury a juror is qualified by the jury commission
to serve on (that is, as a grand or petit juror or both).
The clerk was required to obtain juror qualification
questionnaires from the county voter registrar and to organize and maintain
them for jury revision purposes. To ensure continually balanced jury lists, the
clerk was responsible for compiling statistical reports, analyzing jury pool
data, and reporting to the jury commission if, at any time, the percentage of
active jurors for any statistical or cognizable group was less than or greater
than five percent of the number for the corresponding category, as indicated by
the most recent decennial census.
Each time the jury commission is restructured and new
commissioners are appointed, a similar statement should be provided to the
clerk. The statement should be filed on the minutes of superior court.
|
Figure 7. Continued
from page 30. |
|
|
general law and should not deviate from there from, unless the plan established by the court provides flexibility to the clerk for this purpose. Only authorized personnel should be allowed to operate and enter data on the computer program used for selecting juries and maintaining jury lists, and all programs should be password protected, with rigid policies regarding password protection adopted and enforced by the clerk.
O.C.G.A. § 15-12-62 establishes procedures for selection of grand jurors. Subsection (a) is not applicable in counties that utilize an electronic jury selection system. Instead, provisions of O.C.G.A. § 15-12-42 (b) pertaining to the selection of trial jurors must be followed.
When a manual jury selection system is used, no name deposited in the grand jury box “shall, on any pretense whatever, be thrown out of it or destroyed except when it is satisfactorily shown to the judge that the juror is dead, removed out of the county, or otherwise disqualified by law.”
Irregardless of which system is employed, not less than 18 nor more than 75 names shall be drawn for a specific term of court.
Contracts for
Electronic Jury Selection
O.C.G.A. § 15-12-42(b) authorizes contracting with private business or entities within the state for selection of jurors if a “proper court rule” authorizes doing so. The contract should ensure that proper safeguards are included in the contract with the agency responsible for performing such service.
Selection of juries has, and will always continue, to be an essential court function performed by clerks of superior. Logically, since the clerk of superior court serves as clerk of the jury commission, the clerk should not voluntarily relinquish any duties relative to the jury selection
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Statutory Provisions O.C.G.A. § 15-12-62. Selection of grand jurors |
process. If the clerk is to serve as the court’s designee pursuant to O.C.G.A. § 15-12-1 (which is directly related to remuneration provided for in O.C.G.A. § 15-6-89), it is essential that the clerk perform jury selection duties.
Certification of Jury List
Once the jury commission completes all tasks necessary for creating or revising trial or grand jury lists, each list must be certified by the jury commission, as required by the unified appeal procedures set forth in Rule 34 of the Uniform Rules of the Superior Court (cited below) and O.C.G.A. § 15-12-43. Certification requires the jury commissioners to inspect each list to ascertain if all persons they intended to be included on a specific list actually are. As noted previously, the clerk, when serving in his or her official capacity as clerk of the jury commission, is bound by law to discharge faithfully his duties as required by law” (viz., O.C.G.A. § 15-12-23), making it incumbent upon the clerk to list or to cause to be listed on the electronic jury management system each jurors’ name provided to the clerk by the jury commission.
Most electronic jury selection programs available used by clerks of superior court feature a statistical reporting menu from which grand and trial jury certificates can be generated. A sample of a grand jury certificate is provided on pages 46 through 47.
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Statutory Provisions O.C.G.A. § 15-12-42
(b). Contract for mechanical or electronic jury selection. (c)
Contract for mechanical or electronic juror selection. A county utilizing
mechanical or electronic means for the selection of jurors may, under proper
court rule, contract for the drawing of their respective trial and grand jurors
with any entity with which a county may contract under Article IX, Section
III, Paragraph I, subparagraph (a) of the Constitution and with any private
business or entity within this state, but any such contract shall ensure that
proper safeguards are maintained as provided in paragraph (2) of subsection
(b) of this Code section. The drawing may be held outside of the county so
contracting by a judge of the circuit or his designee upon proper posting and
advertising in the county legal organ of the rule of court allowing this
service to be performed for the county. |
Jury List Book or Computer Printout
For the benefit of the court, parties in litigation, attorneys, and the jury commission, the list of grand and trial jurors derived from the jury commission’s creation or revision efforts should be printed and published for public inspection. O.C.G.A. § 15-12-43 requires the clerk of superior court to “make out” the certified grand and trial jury lists in alphabetic order, with the lists bound
in a book in the clerk’s office. Counties utilizing an electronic jury selection system are required to generate a computer printout.
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Statutory Provisions O.C.G.A. §
15-12-43. Jury list book or computer print-out (a) The
clerk of the superior court shall make out, in a book, lists of the names
contained in the grand jury box and in the trial jury box, respectively,
alphabetically arranged, and shall place the book in his office after the
lists therein have been certified by the clerk and commissioners to contain,
respectively, all the names placed in the jury boxes. |
As noted above, jury commission must certify the grand and trial jury list each time either list is updated.[56] Each time the jury box or the electronic jury management list is restructured by the jury commission, the amended list must be made out or printed “showing all changes contained in the subsequent list.”
All computer-based jury management programs used by clerks produce an alphabetic listing of jury lists. Although most enable viewing of jury electronically, online lists do not include the jury commission’s certification affidavit and, therefore, must still be printed.
Printed lists should not include jurors’ Social Security numbers (which is prohibited by federal law), their date of birth, or physical or mailing addresses. The information may be used by unscrupulous persons for fraudulent or other sinister purposes.
Challenges to the Array
Any party in a civil or criminal action may legally file a challenge to the makeup of the grand and petit juries. As has been alluded to throughout this section, such a challenge is called a “challenge to the array.” By law, the challenge must be filed in writing at an appropriate time during the pendency and litigation of the case, the appropriateness of the motion being a matter solely for determination by the presiding judge.
Challenges for cause are not uncommon, particularly in criminal cases in which the death penalty is being sought by prosecutors for the state. O.C.G.A. § 15-12-62 provides that the “accused may, in writing, challenge the array for any cause going to show that it was not fairly or properly impaneled or ought not to be put upon him.” Specifically, the primary issue in a challenge to the
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Statutory and
Uniform Rule Provisions O.C.G.A. §
15-12-162. Challenge to the array Uniform Superior
Court Rules – Rule 34, Unified Appeal. C. First Proceeding. The following matters shall be concluded during the
first proceeding: E. Forms for
Required Jury Certificates. (Note: For the
purpose of economy herein, Rule 34 (E) text has been excluded. See Sample
below jury certificates below). |
array is whether or not the jury commission has excluded any person for any discriminatory reason from inclusion in the county’s grand or trial jury lists.
When a challenge is filed, neither the clerk nor the jury commission should panic. If the jury commission has diligently and deliberately included as many persons as possible and legally permissible on trial and grand jury lists, chances are that no court will uphold the challenge. However, jury commissioners and the clerk should be cognizant and mindful of the following information and recommendations relating to challenges to the array as they perform jury compilation tasks.
The best defense is a good offense. So, if jury commissioners follow the law when creating or revising lists and ensured requisite representation of all cognizable groups, the court will usually have no choice but to find no prima facie exists (meaning “at first sight” or “before closer inspection”) to substantiate the challenge. If the court does find a prima facie case has been made out by the defendant, there is still no reason for anxiety if disparity resulted from an unavoidable, justifiable, or otherwise defensible reason.
At the onset, jury commissioners should understand that statutes for selecting jurors, drawing and summoning jurors “form no part of a system to procure an impartial jury to parties. They establish a mode of distributing jury duties among persons in the respective counties, they provide for rotation in jury service; they prescribe the qualifications of jurors, and the time and manner of summoning them, and are directory to those whose duty it is to select, draw, and summon persons for jurors.” Obviously, however, a disregard of the essential and substantial provisions of the statute will have the effect of vitiating the array.[57]
Burden of Proof
The defendant has the burden of proving the existence of systematic racial exclusion of jurors.[58] The defendant must prove a prima facie case of systematic exclusion of a distinct class of citizens.[59] To challenge the array of the grand jury successfully, the defendant must prove a prima facie case of unconstitutional discrimination.[60]
The court must presume that jury commissioners have performed their duties properly.[61] There is no burden upon the state to prove that the jury commissioner performed their duty as provided by law.[62] There is a presumption that jurors are selected and drawn according to the law and that they are upright and intelligent.[63] However, the fact that jury commissioners have acted in good faith is not a defense to the failure to discharge the affirmative duties cast upon them to compose a list of intelligent and upright jurors who represent a cross-section of such persons.[64]
Mere failure to comply with provisions of O.C.G.A. § 15-12-40, without a showing of systematic exclusion on the basis of race or some other ground forbidden by national policy, does not give rise to a federal cause of action.[65]
Jury commissioners have a duty to pursue a course of conduct which does not result in racial discrimination.[66] There is no apparent standard by which performance of jury commissioners in complying with duty to consider intelligence and uprightness of prospective jurors may be judged.[67] Mere affirmations of good faith are insufficient to dispel prima facie case of systematic exclusion where the opportunity for discrimination is present and where respondents fail to show that it is not practiced by the jury commissioners.[68]
Once a prima facie case is made, the burden shifts to
prosecution.[69] Both
the state and the accused may call the jury commission, clerk, and experts to
substantiate the challenge to cause.
Elements of a Prima Facie Case
In order to show a systematic exclusion of a distinct class of citizens, the defendant must demonstrate sufficiently to establish a prima facie case that: (1) the sources from which the jury list was drawn are tainted in that they provide the opportunity for discrimination, and (2) that use of these sources resulted in a substantial disparity between the percentages of the separate class on the jury list and in the population as a whole. Implicit in these requirements is that the defendant has the burden of showing that the group he seeks to prove has been systematically excluded constitutes a distinct and separate class of citizens.[70]
In order to make out a prima facie case of jury discrimination, the defendant must establish: (1) that a distinctive group or recognizable class in the community has been excluded from the jury lists; (2) that an opportunity for discrimination against this group existed from the source of the jury list; and (3) that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the jury panels.[71] It must be proven that an opportunity for discrimination on account of race existed on the grounds that the source from which the potential jurors was drawn was racially biased, and that the use of such an "infected source" produced a significant disparity between the percentages of blacks found present in the source and those actually appearing on appellant's grand and petit jury panels.[72]
The challenger must establish by “satisfactory evidence purposeful racial
discrimination, even if the figures are not proportionate, except that a gross
and unexplained disparity may be sufficient alone to demonstrate such
discrimination.”[73] The
defendant always has the burden of showing that discrimination occurred in the
jury selection process. Evidence of "spectacular under-representation”
meets the burden and makes out a prima facie case of discrimination, in which
case the burden of going forward then shifts to the government to explain the
figures in a nondiscriminatory way.[74]
For the purpose of proving discrimination, the difference between the
percentage of a specific cognizable group on the grand jury list and the
percentage the cognizable group represents in the population as a whole which
actually determines whether a "significant disparity" exists.[75] The
Georgia Supreme Court has held that as much as a six percent disparity of
blacks and a 7.1 percent disparity of women was not such an
under-representation of blacks or of women on the grand jury list substantiating
reversal of defendant's murder conviction.[76] The
mere fact that a jury panel contains no black members when the accused is black
will not, standing alone, support a challenge to the array and warrant the
granting of a motion for a new jury.[77] Appellate
courts have denied a defendant’s motion to quash an indictment despite the fact
that there was a disparity of over ten (10) percent in the number of
African-Americans on the grand jury and the percentage of African-Americans
residing in the county, as reflected by the most recent federal census reports
and source lists.[78]
In a challenge to the array of a trial jury, the fact that
no one between the ages of 18 and 21 was on the jury panel does not, standing
alone, prove that there were no jurors of that age in the jury box; nor does it
show a deliberate exclusion of such persons from jury service. Such evidence
alone is not sufficient to prove the jury list is not a fairly representative
cross-section of the intelligent and upright citizens of the county.[79] As
previously noted, persons between the ages of 18 and 23 do not necessarily
constitute a "distinct and identifiable group in the community" for
purposes of challenge to composition of jury.[80]
Compilation of a traverse jury list by jury commissioners
who simply use the official registered voters' list without supplementing it
and without realizing that nonvoters could be included is not a prima facie basis for reversible error,
absent a showing that supplementation was necessary to achieve a fair
cross-section of the community.[81]
Applicability to
Civil Cases
A litigant in a civil case has a right under the United States Constitution, Amendment 14, to a jury list that fairly represents a cross-section of the community and that a jury roll is not such where excessive weight is given to some groups or classes of persons.[82]
Results of a Bona Fide Challenge to the Array
If a challenge to the array is upheld by the trial court or as the result of an appeal of a ruling of the trial court, the following actions are required:
- In a criminal case, if the successful challenge was to the array of the grand jury, the indictment may be quashed (declared invalid) on statutory grounds. The state must present the case against the defendant to a properly arrayed grand jury, which requires the jury commission to revise the list so that vitiating circumstances no longer exist; and
- In a criminal case, if the successful challenge was to the array of the trial jury, then, prior to trial, the jury commission must cure the defect in the array to the trial jury.
The only possible scenario wherein an improperly arrayed grand or trial jury could cause irreparable harm is in a criminal case in which a defendant was indicted, successfully challenged the array of the grand jury, was re-indicted, then successfully challenged the array of the subsequent and second grand jury that indicted him or her.
Testimony
of Jury Commission and Clerk
Both jury commissioners and the clerk may be compelled to testify in court concerning the array of the grand and trial juries. Usually, the court will notify commissioners and the clerk to appear for a scheduled hearing, although the accused may summon them for this purpose, allowing ample time for preparation for testimony.
Preparation for
Testimony
Many district attorneys throughout the state schedule time to meet with jury commissioners and the clerk to help them prepare for testimony. When the district attorney does not conduct a pre-testimony session, the clerk should spend time with jury commissioners, informing them of the kind of questions that they may be asked, reviewing relative laws and court rules applicable to the revision process, and generally explaining the rules for testifying in a court of law.
Commissioners should refresh their memory as to what the qualifications are for trial and grand jurors and be able to communicate those qualifications, if asked. They should also review minutes of the commission, if kept, and frame timelines in which specific jury revision tasks were completed.
The most important point to stress to jury commissioners is that they must, by law, tell the truth and, if they do not know the answer to a question, to not be afraid to say, “I do not know.”
Some pointers for testifying about how a jury is arrayed include:
- Do not be nervous, remembering that you are not on trial but have been called to simply relate procedures and practices followed by the jury commission during the jury creation and/or revision process.
- Do not volunteer information that is not elicited.
- Respond to each question with a ‘yes’ or ‘no’ then elaborate only if necessary.
- Listen carefully to each question and reply as succinctly as possible, always being responsive as possible to the question.
- Keep in mind during your testimony that jury commissioners are not required to recall as to why any specific person was included or excluded from inclusion on a jury list but should be able to relate to whomever is asking the question general rules that the commission followed for adding and excluding jurors; and
- If you are forced to answer a question which you thinks reflects negatively on the manner and methodology employed by jury commissioners during compilation, remember that the district attorney or his staff will have an opportunity to cross-examine each witness and therefby clarify points in defense of jury commissioners’ actions.
CERTIFICATE OF APPOINTMENT
MEMBER
OF
«County Name»
To:
«First»
«Last» «Middle»
Greeting:
By virtue of the Power and Authority in me
Vested by the Constitution and Laws of this State, and in pursuance to your
appointment, I do hereby certify that you,
«First»
«Last» «Middle»
are a duly
appointed member of the
<<Name_of County>>
You
are therefore authorized and required to do and perform all and singular the duties
incumbent on you as said officer, according to the law and the trust reposed in
you. This commission is to continue in force from «Term_Start»
through «Term_End»,
or until you are removed in the manner prescribed by law.
Given
under my hand and the seal of the Office of the Clerk of the Superior Court of «County Name»
County, in the City of «City Name»,
the 20th day in the year of our Lord, Two Thousand
and «Year» .
By
the Clerk of Superior Court,
|
(SEAL) |
|
Clerk of the of «County Name» County |
Table 2
2000
(Obtained from
www.gadata.org/information_services/Census_Info/votingage2002DONE.htm)
|
PL3. RACE FOR THE POPULATION 18 YEARS AND OVER |
||||||||
|
Data Set: Census 2000 Redistricting
Data (Public Law 94-171) Summary File |
||||||||
|
COUNTY |
TOTAL |
WHITE |
BLACK/ AFRICAN AMERICAN |
AMERICAN INDIAN NATIVE |
ASIAN |
NATIVE HAWAIIAN OTHER PACIFIC ISLANDER |
OTHER RACE |
TWO OR MORE RACES |
|
Appling |
12,690 |
10,036 |
2,248 |
30 |
37 |
1 |
279 |
59 |
|
Atkinson |
5,301 |
3,649 |
1,021 |
18 |
6 |
2 |
556 |
49 |
|
Bacon |
7,455 |
6,292 |
983 |
11 |
24 |
0 |
97 |
48 |
|
Baker |
2,961 |
1,509 |
1,401 |
7 |
0 |
1 |
30 |
13 |
|
|
34,979 |
19,981 |
14,251 |
71 |
351 |
3 |
123 |
199 |
|
Banks |
10,646 |
9,964 |
333 |
30 |
56 |
7 |
181 |
75 |
|
Barrow |
33,019 |
28,472 |
3,065 |
103 |
573 |
12 |
479 |
315 |
|
Bartow |
54,820 |
48,622 |
4,490 |
165 |
295 |
16 |
801 |
431 |
|
Ben Hill |
12,675 |
8,462 |
3,718 |
28 |
36 |
0 |
347 |
84 |
|
Berrien |
11,811 |
10,330 |
1,186 |
28 |
30 |
7 |
138 |
92 |
|
Bibb |
113,007 |
61,600 |
48,731 |
215 |
1,262 |
30 |
446 |
723 |
|
Bleckley |
8,565 |
6,530 |
1,873 |
8 |
71 |
3 |
38 |
42 |
|
Brantley |
10,484 |
9,940 |
387 |
17 |
10 |
1 |
33 |
96 |
|
Brooks |
12,025 |
7,416 |
4,229 |
39 |
29 |
3 |
205 |
104 |
|
|
16,128 |
13,519 |
2,160 |
57 |
137 |
14 |
83 |
158 |
|
Bulloch |
43,503 |
30,697 |
11,711 |
58 |
400 |
13 |
333 |
291 |
|
Burke |
15,289 |
7,793 |
7,193 |
38 |
47 |
1 |
92 |
125 |
|
Butts |
14,823 |
10,406 |
4,161 |
62 |
36 |
4 |
48 |
106 |
|
Calhoun |
4,925 |
1,984 |
2,897 |
5 |
4 |
0 |
14 |
21 |
|
|
29,832 |
22,967 |
5,566 |
149 |
352 |
28 |
397 |
373 |
|
Candler |
7,009 |
4,762 |
1,779 |
15 |
19 |
1 |
387 |
46 |
|
Carroll |
64,638 |
52,975 |
9,857 |
173 |
392 |
11 |
697 |
533 |
|
Catoosa |
39,526 |
38,281 |
437 |
114 |
269 |
7 |
149 |
269 |
|
Charlton |
7,456 |
5,174 |
||||||