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Criminal Jury Selection

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CaseState of Tennessee v. Dominc Eric Frausto

Issue:  Did the trial court’s deviation from the jury selection procedure in Rule 24(d) create reversible error?

Facts:  Jury selection began with the trial court’s selection of 18 prospective jurors. After questioning, each side used peremptory challenges, and 7 prospective jurors were excused. The remaining prospective jurors were taken to the jury room, and 18 new prospective jurors were seated. After questioning, both sides again used challenges. Of the remaining prospective jurors in the courtroom and the jury room, the court randomly selected 13 to be seated. Defense counsel objected on the basis that Rule 24(d) was not followed, which contemplates that replacement jurors will be seated in the original panel (without removing the original panel from the courtroom).

Appellate Decision:  The intermediate court held that the trial court failed to comply with the rule, but that such error was harmless because Defendant could not show prejudice. The court “caution[ed]” the trial court to comply with the relevant rules in the future.

Review Granted:  June 24, 2014.

Prediction:  David believes this is reversible error per se.  Not only was the rule violated but the initial jurors were functionally separated and could not hear the remaining jurors being questioned. It is impossible to prove prejudice. David thinks this error is governed by the exception that permits per se reversal for prejudice to the judicial process. There was no reason for this aberrant procedure and a new trial will be granted. Ben disagrees and thinks the Supreme Court will follow the lower court’s holding, and similarly caution trial courts to follow the rule in the future.