28 U.S.C. § 1867 — Challenging compliance with selection

Page 473 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1867 court consistent with sections 1861 and 1862 of this title. (g) Any person summoned for jury service who fails to appear as directed may be ordered by the district court to appear forthwith and show cause for failure to comply with the summons. Any person who fails to show good cause for noncompliance with a summons may be fined not more than $1,000, imprisoned not more than three days, ordered to perform community serv- ice, or any combination thereof. (June 25, 1948, ch. 646, 62 Stat. 952; May 24, 1949, ch. 179, § 96, 63 Stat. 103; Pub. L. 90–274, § 101, Mar. 27, 1968, 82 Stat. 58; Pub. L. 91–543, Dec. 11, 1970, 84 Stat. 1408; Pub. L. 95–572, § 2(b), Nov. 2, 1978, 92 Stat. 2453; Pub. L. 97–463, § 2, Jan. 12, 1983, 96 Stat. 2531; Pub. L. 100–702, title VIII, § 801, Nov. 19, 1988, 102 Stat. 4657; Pub. L. 110–406, §§ 4, 5(b), 17(b), Oct. 13, 2008, 122 Stat. 4292, 4295.) HISTORICAL AND REVISION NOTES 1948 ACT Based on title 28, U.S.C., 1940 ed., §§ 417, 418 (Mar. 3, 1911, ch. 231, §§ 280, 281, 36 Stat. 1165). Section consolidates parts of sections 417, 418 of title 28, U.S.C., 1940 ed., with necessary changes in phrase- ology. The requirement of section 418 of title 28, U.S.C., 1940 ed., for the summoning of a special jury in accordance with the law of the state was omitted as unnecessary and incongruous in view of other sections of this chap- ter making adequate provision for summoning jurors. 1949 ACT This section amends section 1866 of title 28, U.S.C., by restoring provision of original law that special juries be impaneled in accordance with laws of the respective States. Editorial Notes AMENDMENTS 2008—Subsec. (a). Pub. L. 110–406, § 5(b), struck out ‘‘publicly’’ after ‘‘clerk shall’’ in second sentence and inserted ‘‘The clerk or jury commission shall post a general notice for public review in the clerk’s office and on the court’s website explaining the process by which names are periodically and randomly drawn.’’ after second sentence. Subsec. (g). Pub. L. 110–406, § 17(b), substituted ‘‘$1,000, imprisoned not more than three days, ordered to per- form community service, or any combination thereof.’’ for ‘‘$100 or imprisoned not more than three days, or both.’’ Pub. L. 110–406, § 4, substituted ‘‘may be ordered’’ for ‘‘shall be ordered’’ and struck out ‘‘his’’ before ‘‘failure to comply’’. 1988—Subsec. (c)(1). Pub. L. 100–702 amended cl. (1) generally. Prior to amendment, cl. (1) read as follows: ‘‘excused by the court, upon a showing of undue hard- ship or extreme inconvenience, for such period as the court deems necessary, at the conclusion of which such person shall be summoned again for jury service under subsections (b) and (c) of this section, or’’. 1983—Subsec. (b). Pub. L. 97–463, § 2, inserted provision in second par. authorizing service by first-class mail of persons drawn for jury service, substituted in fourth par. ‘‘If such service is made by mail, the summons may be served by the marshal or by the clerk, the jury commission or their duly designated deputies, who shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or cer- tified summons’’ for ‘‘If such service is made by reg- istered or certified mail, the summons may be served by the clerk or jury commission or their duly des- ignated deputies who shall make affidavit of service and shall file with such affidavit the addressee’s receipt for the registered or certified summons’’ and struck out provision requiring the marshal, if service was made by the marshal, to attach to his return the addressee’s re- ceipt for the registered or certified mail. 1978—Subsec. (c). Pub. L. 95–572 struck out introduc- tory text reference to par. (7) of section 1863(b) of this title. 1970—Subsec. (b). Pub. L. 91–543 inserted provisions authorizing duly designated deputies of the clerk or the jury commission to issue summonses, and deliver them to the marshal for service when personal service is to be made, and provisions authorizing, if service is made by registered or certified mail, the clerk or the jury commission or their duly designated deputies to make service of the summons. 1968—Subsec. (a). Pub. L. 90–274 substituted provi- sions authorizing the commission or clerk to maintain a jury wheel of qualified jurors and to draw particular panels therefrom for provisions authorizing the mar- shal to summon talesmen from the bystanders when there is an insufficient number of petit jurors. Subsec. (b). Pub. L. 90–274 substituted provisions di- recting the clerk or jury commission to deliver sum- monses to the marshal for service when the court or- ders a grand or petit jury to be drawn and setting out the details of service for provisions requiring that, when a special jury was ordered by a district court, it had to be returned by the marshal in the same manner and form as was required in such case by the law of the State in which the district court sat. Subsecs. (c) to (g). Pub. L. 90–274 added subsecs. (c) to (g). 1949—Act May 24, 1949, divided section into sub- sections and restored provisions that special juries be impaneled in accordance with State law. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1978 AMENDMENT Amendment by Pub. L. 95–572 applicable with respect to any grand or petit juror summoned for service or ac- tually serving on or after Nov. 2, 1978, see section 7(a) of Pub. L. 95–572, set out as an Effective Date note under section 1363 of this title. EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90–274, set out as a note under section 1861 of this title. § 1867. Challenging compliance with selection procedures (a) In criminal cases, before the voir dire ex- amination begins, or within seven days after the defendant discovered or could have discovered, by the exercise of diligence, the grounds there- for, whichever is earlier, the defendant may move to dismiss the indictment or stay the pro- ceedings against him on the ground of substan- tial failure to comply with the provisions of this title in selecting the grand or petit jury. (b) In criminal cases, before the voir dire ex- amination begins, or within seven days after the Attorney General of the United States discov- ered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is earlier, the Attorney General may move to dis- miss the indictment or stay the proceedings on the ground of substantial failure to comply with the provisions of this title in selecting the grand or petit jury. (c) In civil cases, before the voir dire examina- tion begins, or within seven days after the party Page 474 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1868 discovered or could have discovered, by the exer- cise of diligence, the grounds therefor, which- ever is earlier, any party may move to stay the proceedings on the ground of substantial failure to comply with the provisions of this title in se- lecting the petit jury. (d) Upon motion filed under subsection (a), (b), or (c) of this section, containing a sworn state- ment of facts which, if true, would constitute a substantial failure to comply with the provi- sions of this title, the moving party shall be en- titled to present in support of such motion the testimony of the jury commission or clerk, if available, any relevant records and papers not public or otherwise available used by the jury commissioner or clerk, and any other relevant evidence. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the grand jury, the court shall stay the proceedings pend- ing the selection of a grand jury in conformity with this title or dismiss the indictment, which- ever is appropriate. If the court determines that there has been a substantial failure to comply with the provisions of this title in selecting the petit jury, the court shall stay the proceedings pending the selection of a petit jury in con- formity with this title. (e) The procedures prescribed by this section shall be the exclusive means by which a person accused of a Federal crime, the Attorney Gen- eral of the United States or a party in a civil case may challenge any jury on the ground that such jury was not selected in conformity with the provisions of this title. Nothing in this sec- tion shall preclude any person or the United States from pursuing any other remedy, civil or criminal, which may be available for the vindi- cation or enforcement of any law prohibiting discrimination on account of race, color, reli- gion, sex, national origin or economic status in the selection of persons for service on grand or petit juries. (f) The contents of records or papers used by the jury commission or clerk in connection with the jury selection process shall not be disclosed, except pursuant to the district court plan or as may be necessary in the preparation or presen- tation of a motion under subsection (a), (b), or (c) of this section, until after the master jury wheel has been emptied and refilled pursuant to section 1863(b)(4) of this title and all persons se- lected to serve as jurors before the master wheel was emptied have completed such service. The parties in a case shall be allowed to inspect, re- produce, and copy such records or papers at all reasonable times during the preparation and pendency of such a motion. Any person who dis- closes the contents of any record or paper in vio- lation of this subsection may be fined not more than $1,000 or imprisoned not more than one year, or both. (June 25, 1948, ch. 646, 62 Stat. 953; Pub. L. 85–259, Sept. 2, 1957, 71 Stat. 583; Pub. L. 90–274, § 101, Mar. 27, 1968, 82 Stat. 59.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., § 416 (Mar. 3, 1911, ch. 231, § 279, 36 Stat. 1165; Jan. 31, 1929, ch. 126, 45 Stat. 1145). Provisions for service by a disinterested person when marshal or his deputy is disqualified is incorporated in section 1868 of this title. Provision for payment and reimbursement of postage and registry fee were omitted as covered by section 560 of this title. Word ‘‘summons’’ was substituted for ‘‘writ of venire facias’’ in harmony with the Federal Rules of Civil Pro- cedure which abolished unnecessary forms. See Rule 81(b) thereof, and Rule 12 of the Federal Rules of Crimi- nal Procedure. Provision of section 416 of title 28, U.S.C., 1940 ed., that the receipt of the person so addressed by reg- istered mail should be regarded as personal service, was omitted. Such omission is consistent with Rule 5(b) of the Federal Rules of Civil Procedure providing that service by mail is complete upon mailing. Provision for attachment to the return of the ad- dressee’s receipt for the summons, was inserted to cover its disposition. Provision that no mileage shall be allowed for service by mail was omitted as unnecessary. Changes were made in phraseology. Editorial Notes AMENDMENTS 1968—Pub. L. 90–274 substituted provisions by which a defendant may assert noncompliance with the selection procedures of the jury for provisions covering the issuance of summonses for jurors and service thereof upon jurors. 1957—Pub. L. 85–259 inserted ‘‘or certified’’ in second and third sentences. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1968 AMENDMENT Amendment by Pub. L. 90–274 effective 270 days after Mar. 27, 1968, except as to cases in which an indictment has been returned or a petit jury empaneled prior to such effective date, see section 104 of Pub. L. 90–274, set out as a note under section 1861 of this title. § 1868. Maintenance and inspection of records After the master jury wheel is emptied and re- filled pursuant to section 1863(b)(4) of this title, and after all persons selected to serve as jurors before the master wheel was emptied have com- pleted such service, all records and papers com- piled and maintained by the jury commission or clerk before the master wheel was emptied shall be preserved in the custody of the clerk for four years or for such longer period as may be or- dered by a court, and shall be available for pub- lic inspection for the purpose of determining the validity of the selection of any jury. (June 25, 1948, ch. 646, 62 Stat. 953; Pub. L. 90–274, § 101, Mar. 27, 1968, 82 Stat. 60.) HISTORICAL AND REVISION NOTES Based on title 28, U.S.C., 1940 ed., §§ 416, 417 (Mar. 3, 1911, ch. 231, §§ 279, 280, 36 Stat. 1165, Jan. 31, 1929, ch. 126, 45 Stat. 1145). Section consolidates parts of sections 416, 417 of title 28, U.S.C., 1940 ed., with necessary changes in phrase- ology. The remaining portion of section 416 of title 28, U.S.C., 1940 ed., constitutes section 1867 of this title. The remainder of section 417 of title 28, U.S.C., 1940 ed., is incorporated in section 1866 of this title. Words, ‘‘in the opinion of the court, disqualified’’ were substituted for ‘‘not an indifferent person, or is interested in the event of the cause’’.