EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Monday, February 3, 2025

Courts Find "Dismembering" the Jury in the Absence of the Defendant is Unconstitutional

In researching a wrongful conviction case this weekend, I came across my favorite example of judicial vocabulary since learning that people convicted of manslaughter are dubbed "slayers." The example I found involved a line of cases in which judges dismissed jurors without the defendant present. But rather than referring to this as the judge improperly dismissing or excusing certain jurors, these courts referred to this as improperly "dismembering" the jury.

A good example can be found in the Fourth Circuit's opinion in United States v. Hanno, 21 F.3d 42 (4th Cir. 1994). In Hanno, the defendant was charged with eight counts involving drug conspiracy, importation, distribution, possession, and smuggling, and one count of illegally transporting monetary instruments. Thereafter,

On July 20, 1992, jury selection began. Prior to that time, the district court knew that it had two consecutive criminal trials scheduled and two juries to pick. Immediately prior to jury selection on July 20th, the district court stated to counsel that “I may not go with you first but I want to get things lined up.” At this time, counsel for the defense informed the court that he had already been told that their trial would be second, scheduled to start the following week, and that the defendant's witnesses and parents were accordingly absent. Stating that that “put him in a box,” the district court commenced jury selection. Twelve petit jurors and one alternate juror were selected. The district court acknowledged that the jury was complete, but did not excuse the jurors. The district court informed them that “[i]n all likelihood we will try this case next week and so you will probably be excused, although I can't do it right now but later in the day and will not have to return until next week.” Later that same day, the court started jury selection for its next criminal case, United States v. Wittek....

The defendant's attorney attended to affairs not mentioned in the record for the next week, but upon his return to the district court a week later, on July 27th, to commence Hanno's trial, he found that six of the jurors he had previously selected had been removed from his jury and, presumably, used in Wittek's case. The docket in the Wittek case shows that that jury was selected the same day, July 20th, that the Hanno jury initially was. This removal of the Hanno jurors was done in the absence of the defendant and his attorney and without notice to them.

On appeal, the Fourth Circuit found that this was reversible error for a few reasons, including,

First, the trial court erred when it dismembered the selected jury for the reason that it needed jurors for another trial. Neither the Federal Rules of Criminal Procedure nor the Jury Selection Plan for the Eastern District of North Carolina4 authorize the removal of selected petit jurors merely in order to supplement another jury in which there was a shortage of jurors. Reasonable fidelity to ordinary jury selection procedures is one of the basic protections required to ensure that criminal trials are fair and juries are randomly selected and impartial....

A second error is that Hanno's jury was dismembered without giving notice to and in the absence of the defendant. This is a violation of the defendant's due process right to be present under the constitution and Fed.R.Crim.P. 43(a). “[A]n accused ‘has a [constitutional] right to be present at all stages of the trial where his absence might frustrate the fairness of the proceedings.’”...In our circuit authority most nearly on point here, we concluded in United States v. Camacho, 955 F.2d 950, 952 (4th Cir.1992), that a defendant has such a right under the constitution and Rule 43(a) to be present during the impaneling of a jury and we see no reason to distinguish the dismemberment of this jury in this case. “Convening a criminal tribunal without the presence of the defendant treads precariously close to the concept of trial in absentia, which our system has long disdained.”...

The third error that occurred on July 20th, was the dismemberment of the jury in the absence of the defendant's attorney (emphases added).

-CM

https://lawprofessors.typepad.com/evidenceprof/2025/02/in-researching-a-wrongful-conviction-case-this-weekend-i-came-across-my-favorite-example-of-judicial-vocabulary-since-learni.html

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