This article was published in Bar Briefs, the monthly journal of the Kane County Bar Association in July/August, 2002


This past March, the Appellate Court issued a full opinion concerning jury selection in a criminal case originating from Kendall County. The case of People v. McCormick, 328 Ill.App.3d 378 (2nd Dist., 2002), ruled that the defense had failed to demonstrate that the right to exercise peremptory challenges had been diluted by a voir dire method called a "struck jury" system. Why would I write an article about such an unremarkable holding, especially when I represented the losing party? And what caused the Court to issue a published opinion on this subject? The reason was that the reviewing court took the rather unusual step of cautioning against the use of the "struck jury" method of choosing the petit jury, unless certain precautions were taken to avert prejudice to the Defendant's right to exercise his full complement of peremptory challenges.

Factual Background

Mr. McCormick was charged with the offenses of unlawful possession of a controlled substance, driving while under the influence of alcohol and failure to yield. When jury selection commenced, the venire contained 46 people. After examination by the court concerning their qualifications as jurors, counsel for both parties were allowed to examine the venire members as well. Then the venire was removed from the courtroom and the parties were directed to submit lists to the trial judge containing the names of the persons against whom they wished to exercise peremptory challenges. These separate lists were submitted simultaneously, so that neither party was privy to the challenges exercised by its opponent. The State and the defense each used seven challenges, the maximum number allowed by Supreme Court Rule 434(d). Once peremptory challenges were exercised in this fashion, the clerk read the names of 12 persons in random order from more than 30 names remaining. These individuals were then seated as the petit jurors sworn to try the issues.

When the parties prepared their separate lists of persons they excused, the names of some of the same individuals appeared on both the State's list and the Defendant's list. In other words, although Mr. McCormick's trial attorney and the prosecutor exercised all seven of their respective peremptory challenges, less than 14 people were excused. On appeal, the defense contended that this procedure diluted the right to intelligently exercise peremptory challenges. Since the denial or diminishment of this right results in reversal without a showing of prejudice ( Swain v. Alabama, 380 U.S. 202 (1965) ), McCormick contended that he was entitled to a new trial..

Waiver, Plain Error & Fair Trial

The State contended that this issue was waived on appeal since trial counsel failed to object to the lower court's method of jury selection. The Second District agreed and considered whether the plain error rule should be invoked on the basis that McCormick had not received a fair trial. For the reasons noted below, the Defendant failed to carry his burden to show that the trial proceedings were unfair.

The court first explained that the defense had not presented any verbatim record of the voir dire process, since the jury selection had not been transcribed. The only substitute available once the trial had concluded was a bystander's report prepared under the authority of Supreme Court Rule 323(c). This report took the form of testimony presented by the two attorneys involved in the case, the trial judge's recollection of the voir dire, and arguments regarding the legal issues. The bystander's report was an admittedly poor substitute for a verbatim record, but it was the only method available to me to try to preserve the issue on appeal. Absent the bystander's report, the issue would never have been preserved at all.

In addition, the opinion stated that McCormick failed to identify any specific juror whom the defense was prevented from excusing. Since the trial judge indicated that he always allowed counsel to peremptorily strike as many people as they wanted, as long as sufficient jurors remained to try the case, the Defendant could have excused additional jurors beyond the normal limit of seven strikes. Since Supreme Court Rule
434(a) grants trial judges discretion to alter the traditional method of jury selection, no error was identified on appeal.

Struck Jury v. Jury Box Methods of Jury Selection

Despite the waiver problem and the ruling that no error occurred during jury selection, the Appellate Court added this note of caution at the end of its opinion:

We note that a "struck jury" system is potentially rife with problems. Under the traditional process described in Rule 434(a), the parties exercise their challenges against jurors already seated in the jury box and who will remain on the jury unless challenged. Where, as here, the parties must exercise their peremptory challenges against the entire venire and the jurors are subsequently chosen randomly, a defendant may be required to waste his peremptory challenges on venire members who have virtually no chance of being selected for the jury. [Citation omitted] Also, where, as here, the trial court requires the parties to submit their peremptory challenges simultaneously, the defendant may end up wasting peremptory challenges on prospective jurors that the State would have dismissed in the first instance.

Trial courts utilizing such a system must ensure that the process does not impair the defendant's peremptory right. A court possibly could avoid the problems noted above by limiting the size of the venire to the number of jurors required plus the authorized number of peremptory challenges or by explaining how the jury ultimately will be chosen, e.g., in numerical order. [Citation omitted] Allowing the defendant the additional challenges needed to preserve the peremptory right also may be an option....

The citation omitted from this quotation is the case of United States v. Ricks, 802 F.2d 731 (4th Cir., 1986). Ricks supplies an interesting overview of the common-law struck jury system if you enjoy a little history along with your legal analysis. In short, Ricks holds that federal courts must limit the size of the venire to the number of jurors to be selected plus the total number of challenges allowed to the parties. If the district court wants to summon a larger venire, then it must still provide the functional equivalent of a numerically correct venire by designating a portion of the venire from which the jury will be selected after peremptory challenges are exercised.

The opinion's reliance on Ricks for its note of caution is particularly helpful because the federal decision basically emphasizes the importance of notice in jury selection. When reviewing the common-law method of a struck jury, the federal court explained that litigants were provided with advance notice of the identity of jurors in order to provide them with sufficient time to discover any reason to exercise challenges against them. Moreover, parties were provided with advance notice of the method for selecting jurors from those individuals remaining after peremptories had been used by the parties.

Practical Trial Advice

The jury selection process becomes needlessly complicated for the defense when a large number of persons sits in the venire and is examined en masse. I think that this procedure has been adopted to speed the often tedious process of voir dire, but it interferes with the ability to take the measure of people who will sit in judgment on your client. Both individual questioning and knowing who will be seated absent the exercise of a challenge frequently expose a bias that cannot be elicited by asking a series of rote questions to dozens of people at the same time. In this respect, the jury box system permits a more precise focus on the attitudes of individual jurors.

When confronted with a situation in which the trial judge wants to employ a struck jury system, I suggest the following bits of advice:

1. This appeal failed on the merits in large part due to the absence of a transcript of the voir dire. I have never determined how a custom developed to waive the reporting of jury selection, particularly in felony cases. Just as in other parts of a trial, all types of issues may arise during voir dire that can be fertile ground for an appeal. At the very least, you can request that the court reporter return to the courtroom for arguments regarding any contested jury selection issue. Then the appellate lawyer will have a contemporaneous record and will not need to try to reconstruct events that cannot be recalled with precision months after the trial has concluded.

2. Cite to the Illinois statutes and the Supreme Court Rule that require the court to call all twelve prospective jurors into the jury box before the commencement of voir dire and that jurors must be selected in panels of four persons. (705 ILCS 305/21 & 23; Supreme Court Rule 434(a)) Since McCormick never afforded full review of the jury selection procedure in that case, it is not authority for overruling these provisions. Although the rule allows the court to use its discretion to alter the traditional procedure, discretion does not connote the ability to overrule statutes and rules specifically dealing with this aspect of trial. Apparently, this discretionary authority was granted to trial judges to prohibit the practice of backstriking, rather than to approve of a struck jury system. See People v. Moss, 108 Ill.2d 270, 275 (1985). In fact, as noted in Ricks, no federal authority exists for using a struck jury system with a larger-than-necessary jury list, absent a clear indication as to the sequence by which the actual jurors are selected. In preparing the brief for this appeal, I searched high and low for any Illinois authority approving this system at all, but found none.

3. The same statutes and rule noted above also require the State to exercise its peremptory challenges first. In this fashion, the jury box method of selection avoids the simultaneous exercise of challenges that may result in each party designating some of the same persons for excusal. Instead, exercising challenges in sequence allows each side to excuse those persons deemed objectionable without losing some of the challenges because the State would have excused the same person(s). Once again, the exercise of discretion to change traditional procedure does not authorize the veto of state law.

4. When you have exhausted all of your challenges, ask for more. If you don't ask for more challenges, the Appellate Court will rule that you failed to preserve the issue, since trial courts do have discretion to grant additional challenges. See, for example, People v. Washington, 104 Ill.App.3d 386 (1st DIst., 1982) McCormick has explicitly indicated that exceeding the limit contained in the rule can actually preserve the peremptory right itself.

So much for the unimportance of dictum.