This article originally appeared in The Recorder on December 4, 2020.

For most trial lawyers, jury selection begins when the courtroom deputy conducts the rollcall of prospective jurors. However, an important part of the process has already taken place before those potential jurors even enter the courtroom – the selection of the venire. Normally, this is a seamless process conducted by the jury commissioner in consultation with the trial judge. But, as with seemingly everything else, these are not normal times. 

Typically, a court’s jury plan is designed to ensure that the venire meets the statutory and constitutional requirement that it be comprised of a fair cross-section of the community. The dearth of successful challenges to a jury’s composition in recent memory normally renders an appeal on this ground a losing proposition. Fair cross-section arguments are often relegated to the “kitchen sink” portion of a brief, with just enough detail to avoid the dreaded footnote dismissing the argument as “unsupported by fact or law.”

However, in the age of COVID-19, courts have been making changes to their jury selection procedures that could result in the systematic elimination of particular groups such that a challenge to the venire on fair cross-section grounds may no longer be futile. They are doing it for good reasons – to protect especially vulnerable populations from the novel coronavirus – but doing so could still provide attorneys with arguments for error, arguments that need to be properly preserved for appeal.

For example, because older people are more likely to encounter serious consequences from contracting COVID-19, the jury commissioner may have instructions to automatically excuse anyone over a certain age from service upon request. In addition, numerous studies have documented that minority populations, particularly Black and Hispanic communities, suffer disproportionately severe outcomes from contracting COVID-19. Therefore, it is possible a greater number of people from these groups will also be regularly excused from service. The commissioner likewise may find himself regularly excusing women, who typically bear the brunt of child-care responsibilities which have grown exponentially as schools have remained closed to in-person learning. The routine granting of excuses to jurors based on their age, gender, race, or ethnicity may arguably establish a systematic exclusion of protected classes of potential jurors sufficient to support a fair cross-section challenge. 

In addition, excusing anyone who expresses anxiety over coming to the courthouse raises the specter of the venire consisting of only those who want to serve. The creation of a “volunteer” jury pool has been found to violate the requirement that a jury be selected at random from all qualified members of the community. 

Seating a jury drawn from a venire that does not comprise a fair cross-section of the community is structural error and, in theory at least, just because the courts have a good reason for restricting the venire does not vitiate such a fundamental error. In criminal cases, an indictment returned by a grand jury that does not meet the fair cross-section requirement may even be dismissed. Therefore, jury venire composition, an issue that normally would not merit much consideration on appeal, warrants a second look in the age of COVID-19 – as long as the trial attorney has made a sufficient record to support it.

Unfortunately, all too often, the record on appeal regarding the composition of the jury pool consists of a few comments from the trial lawyer on the lack of minority jurors in the venire. As appellate courts have repeatedly held, this is not enough. Specific facts and data are needed to establish an error in the composition of the venire. The tools to create a better record are already available, and trial counsel should be encouraged to use them to explore whether the court’s COVID-19 measures, no matter how well-intended, may result in the selection of a venire that does not meet constitutional and statutory requirements.

Under federal law, any party to a trial has an unqualified right to request the “records or papers” used in the jury selection process in order to challenge that process. California state law is more demanding, permitting discovery only where a party has made a particularized showing supporting a reasonable belief that the jury selection process was flawed. 

Thus, in order to preserve issues regarding the composition of the venire for appeal, trial counsel should at a minimum request any modifications to the jury plan, instructions to the clerk of the court regarding discretionary excuses, and demographic data concerning the summonses sent to prospective jurors, excuses and postponements granted and denied, and the ultimate composition of the venire. Trial counsel should also be reminded to ensure that these materials are made part of the record by including them as exhibits to a motion to dismiss, request for judicial notice, or other filing. 

Once a sufficient record has been compiled, appellate review of a fair-cross section challenge need not wait until trial is over. Courts have held that it is wholly appropriate to raise issues concerning the composition of the venire in a mandamus petition to the appellate court. Advisory mandamus is particularly well-suited to addressing this issue so that the appellate court may clarify novel and important questions of law that are likely to confront a number of lower court judges in a number of suits before appellate review is possible. 

Changes made in a trial court’s jury selection process may affect all of the trials that the court holds during the pandemic. If there are concerns about that process, especially where it results in the systematic exclusion of protected classes of prospective jurors due to the disproportionate manner in which COVID-19 affects certain populations, early intervention by the appellate court may save judicial and attorney resources by cutting off a parade of potentially unconstitutional trials.  

The pandemic is challenging for everyone, including courts… But it is not only the parties at trial who have a right to a fairly-composed jury. The opportunity to sit on a jury is a fundamental right that women and people of color have fought hard to win. Implementing procedures to protect vulnerable populations is a laudable goal, but in doing so, courts must take care that the resulting jury pools continue to represent a fair cross-section of the communities they serve. 

On Appeals is a monthly column by the attorneys of the California Appellate Law Group LLP*, an appellate boutique with offices in Los Angeles, San Francisco, and San Diego. Kirstin Ault is of counsel with the firm. She is a former Assistant U.S. Attorney who specializes in high-stakes criminal appeals and related civil appellate litigation. Find out more about Kirstin and the California Appellate Law Group LLP at www.calapplaw.com.

*In July 2022, the California Appellate Law Group was renamed the Complex Appellate Litigation Group.

This article is copyright © in the year of publication above.