2020 Georgia Code
Title 15 - Courts
Chapter 12 - Juries
Article 3 - Selection of Jurors
§ 15-12-40.1. State-Wide Master Jury List; Driver's License Information; List of Registered Voters; Random List of Persons to Comprise Venire

Universal Citation: GA Code § 15-12-40.1 (2020)
  1. After July 1, 2011, the council shall compile a state-wide master jury list.
  2. On and after July 1, 2017, upon the council's request, the Department of Driver Services shall provide the council data showing the full name of all persons who are at least 18 years of age and residents of this state who have been issued a driver's license or personal identification card pursuant to Chapter 5 of Title 40. In addition to the person's full name, the Department of Driver Services shall include the person's address, city of residence, date of birth, gender, driver's license or personal identification card number, and, whenever racial information is collected by the Department of Driver Services, racial information. The Department of Driver Services shall provide the document issue date and document expiration date; shall indicate whether the document is a driver's license or a personal identification card; and shall exclude persons whose driver's license has been suspended or revoked due to a felony conviction, whose driver's license has been expired for more than 730 days, or who have been identified as not being citizens of the United States. Such data shall also include a secure unique identifier, determined according to the specifications of the council in consultation with the Department of Driver Services, which shall be a representation of the last four digits of the social security number associated with each driver's license or personal identification card holder. The council shall provide the Department of Driver Services with the software required to generate such secure unique identifier. The Department of Driver Services shall also provide the names and identifying information specified by this subsection of persons convicted in this state or in another state of driving without a license. Such data shall be in electronic format as required by the council.
    1. On and after July 1, 2017, upon request by the council, the Secretary of State shall provide to the council, without cost, data showing:
      1. The list of registered voters, including the voter's date of birth, address, gender, driver's license number, and when it is available, the voter's race. Such list shall exclude persons whose voting rights have been removed; and
      2. The full name, date of birth, address, gender, and, when such information is available, the race of any individual declared as mentally incompetent within the information collected by the Secretary of State under subsection (b) of Code Section 21-2-231.
    2. The data provided to the council pursuant to this subsection shall also include a secure unique identifier, determined according to the specifications of the council in consultation with the Secretary of State, which shall be a representation of the last four digits of the social security number associated with each voter. The council shall provide the Secretary of State with the software required to generate such secure unique identifier.
  3. On and after July 1, 2014, each clerk shall obtain its county master jury list from the council. The council shall disseminate, in electronic format, a county master jury list to the respective clerk once each calendar year. The council shall determine the fee to be assessed each county for such list, provided that such fee shall not exceed 3› per name on the list. The council shall invoice each clerk upon the delivery of the county master jury list, and the recipient county shall remit payment within 30 days of the invoice.
  4. On and after July 1, 2017, upon request by the council, the Department of Public Health shall provide to the council, without cost, data relating to death certificates for residents of this state for the 15 year period preceding the date of the request. In addition to the deceased person's full name, the data shall include the person's address, including the county of residence and ZIP Code, date of birth, gender, county in which the person died, and, when such information is available, the person's race. Such data shall also include a secure unique identifier, determined according to the specifications of the council in consultation with the Department of Public Health, which shall be a representation of the last four digits of the social security number associated with each deceased person. The council shall provide the Department of Public Health with the software required to generate such secure unique identifier. Such data shall be in electronic format as required by the council.
  5. On and after July 1, 2017, upon request by the council, the Department of Corrections shall provide to the council, without cost, data showing a list of the names of all persons who have been convicted of a felony in this state. In addition to the convicted person's full name, the data shall include the person's address, including the county of residence and ZIP Code, date of birth, gender, and, when such information is available, the convicted person's race. Such data shall also include a secure unique identifier, determined according to the specifications of the council in consultation with the Department of Corrections, which shall be a representation of the last four digits of the social security number associated with each convicted person. The council shall provide the Department of Corrections with the software required to generate such secure unique identifier. Such data shall be in electronic format as required by the council.
  6. On and after July 1, 2017, upon request by the council, the State Board of Pardons and Paroles shall provide to the council, without cost, data showing a list of the names of all persons who have had his or her civil rights restored. In addition to the person's full name, the data shall include the person's address, including the county of residence and ZIP Code, date of birth, gender, and, when such information is available, the person's race. Such data shall also include a secure unique identifier, determined according to the specifications of the council in consultation with the State Board of Pardons and Paroles, which shall be a representation of the last four digits of the social security number associated with each person. The council shall provide the State Board of Pardons and Paroles with the software required to generate such secure unique identifier. Such data shall be in electronic format as required by the council.
  7. On or after July 1, 2017, in each county the clerk shall choose a random list of persons from the county master jury list to comprise the venire.
  8. The Supreme Court may establish, by rules, reasonable standards for the preparation, dissemination, and technological improvements of the state-wide master jury list and county master jury lists.

(Code 1981, §15-12-40.1, enacted by Ga. L. 1994, p. 408, § 1; Ga. L. 2011, p. 59, § 1-16/HB 415; Ga. L. 2012, p. 173, § 3-2/HB 665; Ga. L. 2014, p. 451, § 8/HB 776; Ga. L. 2015, p. 422, § 5-18/HB 310; Ga. L. 2017, p. 622, § 1/SB 95.)

The 2014 amendment, effective July 1, 2014, rewrote this Code section.

The 2015 amendment, effective July 1, 2015, inserted "July 1, 2015, upon request by the council, the Department of Community Supervision and, on and after" in the first sentence in subsection (f). See editor's note for applicability.

The 2017 amendment, effective July 1, 2017, rewrote this Code section.

Cross references.

- Registration of voters and compilation of official registered voters' lists, § 21-2-210 et seq.

Unified appeal, pretrial proceedings, Uniform Superior Court Rules, Rule 34.

Authority of probate courts to enact local rules, Uniform Rules for the Probate Courts, Rule 1.2.

Editor's notes.

- Ga. L. 2011, p. 59, § 1-1/HB 415, not codified by the General Assembly, provides: "This Act shall be known and may be cited as the 'Jury Composition Reform Act of 2011.'"

Ga. L. 2015, p. 422, § 6-1/HB 310, not codified by the General Assembly, provides, in part, that the amendment by this Act shall apply to sentences entered on or after July 1, 2015.

Law reviews.

- For annual survey of death penalty law, see 56 Mercer L. Rev. 197 (2004). For article on the 2015 amendment of this Code section, see 32 Ga. St. U.L. Rev. 231 (2015). For comment on discriminatory jury selection, in light of Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), see 5 Mercer L. Rev. 207 (1953). For comment on Allen v. State, 110 Ga. App. 56, 137 S.E.2d 711 (1964), see 1 Ga. St. B.J. 371 (1965). For comment on Simmons v. Jones, 478 F.2d 321 (5th Cir. 1973), see 8 Ga. L. Rev. 510 (1974).

JUDICIAL DECISIONS

ANALYSIS

  • General Consideration
  • Jury Commissioners
  • Makeup of Juries
  • Revision of Jury List
  • Proof of Jury Discrimination

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under Ga. L. 1878-79, p. 27, §§ 2, 3; Ga. L. 1878-79, p. 34, § 1; Ga. L. 1880-81, p. 124, § 1; Code 1882, §§ 3910b, 3910d, 3910e; Penal Code 1895, §§ 815, 818, 819; Ga. L. 1897, p. 40, § 1; Ga. L. 1899, p. 44, § 1; Penal Code 1910, §§ 816, 819; Code 1933, §§ 59-106, 59-108; and former O.C.G.A. §§ 15-12-40 and15-12-42 are included in the annotations for this Code section.

Constitutionality.

- This section does not violate U.S. Const., amends. 13 and 14, and is not void for vagueness. Robinson v. State, 225 Ga. 167, 167 S.E.2d 158 (1969) (decided under former Code 1933, § 59-106).

This section is not void for vagueness in the statute's mandate to select a fairly representative cross-section of the intelligent and upright citizens of the county from the official registered voters' list which was used in the last preceding general election. Johnson v. Caldwell, 228 Ga. 776, 187 S.E.2d 844 (1972) (decided under former Code 1933, § 59-106).

Procedures are directory.

- Statutory procedures for creating the jury list are merely directory and do not serve to deprive the defendant of any rights. Dillard v. State, 177 Ga. App. 805, 341 S.E.2d 310 (1986) (decided under former O.C.G.A. § 15-12-40).

Georgia's scheme for selecting grand juries and boards of education is not inherently unfair or necessarily incapable of administration without regard to race; the federal courts are not powerless to remedy unconstitutional departures from Georgia law by declaratory and injunctive relief. Turner v. Fouche, 396 U.S. 346, 90 S. Ct. 532, 24 L. Ed. 2d 567 (1970) (decided under former Code 1933, § 59-106).

Determination of discrimination.

- There is a progression of legal exercises leading to the conclusion of discrimination in jury selection. The first is the right to rely on the fact that peremptory strikes offer the prosecution a potential tool for discrimination. Second, the defendant must show membership in a racially cognizable group and that the prosecution used peremptory strikes to remove persons of defendant's race from the jury. Finally, the defendant is burdened with showing that these facts and other relevant circumstances raise an inference of the prosecution's racial motive in the use of peremptory strikes. Aldridge v. State, 258 Ga. 75, 365 S.E.2d 111 (1988) (decided under former O.C.G.A. § 15-12-40).

Fourteenth Amendment protects all citizens.

- United States Const., amend. 14 protects all and not some citizens as to discrimination in jury selection. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

Jury service is a duty rather than a right.

- Jury service is not a right or privilege but is a burden which the state summons certain of the state's citizens to bear. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

Presumption that jurors able to correctly analyze facts.

- Jurors are expected to bring into the box not only uprightness, but also intelligence, and there ought to be a presumption that jurors, through the use of the intelligence which the jurors are required to have in order to be qualified to be jurors, are able to correctly analyze the evidence and determine the facts, shown by such evidence, to have occurred. Purcell v. Hill, 111 Ga. App. 256, 141 S.E.2d 153 (1965) (decided under former Code 1933, § 59-106).

Competency of juror.

- Defendant did not show that juror was incompetent to serve merely because the juror gave an incoherent answer the first time the juror was polled about defendant's verdict; thus, denial of defendant's motion for a new trial was proper. Creed v. State, 255 Ga. App. 425, 565 S.E.2d 480 (2002) (decided under former O.C.G.A. § 15-12-40).

Programming computer for racial balance.

- Nothing in former O.C.G.A. § 15-12-40 or former O.C.G.A. § 15-12-42 forbade the clerk from maintaining and operating in the clerk's office the electronic equipment used to store and retrieve the jury data. Nor did these Code sections forbid programming the jury-selection computer to racially balance the venires the computer selects. Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990), cert. denied, 506 U.S. 837, 113 S. Ct. 114, 121 L. Ed. 2d 71 (1992) (decided under former O.C.G.A. § 15-12-40).

Waiver of citizenship issue.

- Defendant did not show deprivation of a constitutional right and waived the disqualification imposed by O.C.G.A. § 15-12-40.1 by not challenging a non-U.S. citizen juror before trial, and because defendant could not show that the juror was asked about citizenship during voir dire, that the juror lied about citizenship on a jury questionnaire or in response to inquiries made by court personnel, or that the juror's status as a non-U.S. citizen affected the juror's ability to understand the law and apply the law as instructed by the trial court. Moton v. State, 256 Ga. App. 594, 569 S.E.2d 264 (2002).

Section directory.

- Statutes regulating the selection, drawing, and summoning of jurors are intended to distribute jury duties among the citizens of the county, provide for rotation in jury service, and are merely directory. Hulsey v. State, 172 Ga. 797, 159 S.E. 270 (1931) (decided under former Penal Code 1910, § 820).

Object of laws regulating selection, drawing, and summoning of jury is not to secure impartial jurors. Rafe v. State, 20 Ga. 60 (1856) (decided under former law) Woolfolk v. State, 85 Ga. 69, 11 S.E. 814 (1890);(decided under former Code 1882, § 3910e).

Statutes for selecting jurors, drawing and summoning jurors, form no part of a system to procure an impartial jury to parties. Hulsey v. State, 172 Ga. 797, 159 S.E. 270 (1931) (decided under former Penal Code 1910, § 820).

Alphabetical, geographical, or numerical patterns.

- Jury lists should not contain alphabetical, geographical, or numerical patterns. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986) (decided under former O.C.G.A § 15-12-42).

Geographical voting districts.

- Fact that the names on the master jury list were originally obtained from geographical voting districts would not cause a non-random geographical pattern. Thus, the defendant failed to show a deliberate and systematic exclusion of identifiable and distinct groups, such as urban or black. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986) (decided under former O.C.G.A § 15-12-42).

Length of voters' registration not significant.

- Defendant failed to establish prima facie that those who were more recently registered voters and those who had been registered for a longer period were distinct and identifiable groups in the community. Larmon v. State, 256 Ga. 228, 345 S.E.2d 587 (1986) (decided under former O.C.G.A § 15-12-42).

Drawing names by the judge.

- Trial judge is not required physically to pass the judge's own hand into the box in which the name cards are kept to grasp the card in the judge's fingers and the statute was complied with when a small child drew a card under the scrutiny of the trial judge. Sanders v. State, 164 Ga. App. 13, 296 S.E.2d 213 (1982) (decided under former O.C.G.A § 15-12-42).

Writ of prohibition to prevent revision.

- Taxpayers cannot by writ of prohibition prevent jury commissioners from revising lists and making up jury boxes. Teem v. Cox, 148 Ga. 175, 96 S.E. 131 (1918) (decided under former Penal Code 1910, § 820).

Citizens and taxpayers have not such interest as will authorize them to maintain a petition for the writ of prohibition to prevent the jury commissioners of the county from revising jury lists and making up jury boxes as provided in former Penal Code 1910, §§ 816 and 820 et seq. and this principle is applicable when a plaintiff was a citizen and taxpayer and also was an attorney at law. Ritcher v. Jordan, 184 Ga. 683, 192 S.E. 715 (1937) (decided under former Code 1933, § 59-108).

Programming computer for racial balance.

- Nothing in former O.C.G.A. § 15-12-40 or former O.C.G.A. § 15-12-42 forbids the clerk from maintaining and operating in the clerk's office the electronic equipment used to store and retrieve the jury data. Nor did these Code sections forbid programming the jury-selection computer to racially balance the venires it selected. Meders v. State, 260 Ga. 49, 389 S.E.2d 320 (1990), cert. denied, 506 U.S. 837, 113 S. Ct. 114, 121 L. Ed. 2d 71 (1992) (decided under former O.C.G.A § 15-12-42).

Cited in Wellman v. State, 100 Ga. 576, 28 S.E. 605 (1897); Staten v. State, 141 Ga. 82, 80 S.E. 850 (1913); Pollard v. State, 148 Ga. 447, 96 S.E. 997 (1918); Dunham v. State, 32 Ga. App. 416, 123 S.E. 723 (1924); White v. State, 166 Ga. 192, 142 S.E. 666 (1928); Hulsey v. State, 172 Ga. 797, 159 S.E. 270 (1931); Griffin v. State, 183 Ga. 775, 190 S.E. 2 (1937); Cornelious v. State, 193 Ga. 25, 17 S.E.2d 156 (1941); Cady v. State, 198 Ga. 99, 31 S.E.2d 38 (1944); Crumb v. State, 205 Ga. 547, 54 S.E.2d 639 (1949); Reece v. State, 208 Ga. 165, 66 S.E.2d 133 (1951); Robinson v. State, 86 Ga. App. 375, 71 S.E.2d 677 (1952); Williams v. Georgia, 349 U.S. 375, 75 S. Ct. 814, 99 L. Ed. 1161 (1955); Reynolds v. Reynolds, 217 Ga. 234, 123 S.E.2d 115 (1961); Huey v. Sechler, 107 Ga. App. 467, 130 S.E.2d 754 (1963); Vanleeward v. State, 220 Ga. 135, 137 S.E.2d 452 (1964); Brookins v. State, 221 Ga. 181, 144 S.E.2d 83 (1965); Ricks v. State, 221 Ga. 837, 147 S.E.2d 431 (1966); Fallaw v. Hobbs, 113 Ga. App. 181, 147 S.E.2d 517 (1966); Williams v. State, 222 Ga. 208, 149 S.E.2d 449 (1966); O'Bryant v. State, 222 Ga. 326, 149 S.E.2d 654 (1966); Roach v. Mauldin, 277 F. Supp. 54 (N.D. Ga. 1967); Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967); Woods v. State, 117 Ga. App. 546, 160 S.E.2d 922 (1968); Lingo v. State, 224 Ga. 333, 162 S.E.2d 1 (1968); Bailey v. State, 118 Ga. App. 93, 162 S.E.2d 786 (1968); Whippler v. Dutton, 391 F.2d 425 (5th Cir. 1968); Roach v. Mauldin, 391 F.2d 907 (5th Cir. 1968); Pullum v. Greene, 396 F.2d 251 (5th Cir. 1968); Simmons v. State, 226 Ga. 110, 172 S.E.2d 680 (1970); Kemp v. State, 226 Ga. 506, 175 S.E.2d 869 (1970); Donlavey v. Smith, 426 F.2d 800 (5th Cir. 1970); Georgia v. Birdsong, 428 F.2d 1223 (5th Cir. 1970); Hill v. Smith, 326 F. Supp. 1002 (N.D. Ga. 1971); Mitchell v. Smith, 229 Ga. 781, 194 S.E.2d 414 (1972); Jones v. Caldwell, 230 Ga. 775, 199 S.E.2d 248 (1973); Wright v. Smith, 474 F.2d 349 (5th Cir. 1973); Spaulding v. State, 232 Ga. 411, 207 S.E.2d 43 (1974); McHan v. State, 232 Ga. 470, 207 S.E.2d 457 (1974); Estes v. State, 232 Ga. 703, 208 S.E.2d 806 (1974); State v. Gould, 232 Ga. 844, 209 S.E.2d 312 (1974); Maddox v. State, 233 Ga. 874, 213 S.E.2d 654 (1975); Zirkle v. State, 235 Ga. 289, 219 S.E.2d 389 (1975); Sanders v. State, 235 Ga. 425, 219 S.E.2d 768 (1975).

Foster v. Sparks, 506 F.2d 805 (5th Cir. 1975); Guy v. State, 138 Ga. App. 11, 225 S.E.2d 492 (1976); Gibson v. State, 236 Ga. 874, 226 S.E.2d 63 (1976); State v. Gethers, 139 Ga. App. 1, 227 S.E.2d 832 (1976); Barrow v. State, 239 Ga. 162, 236 S.E.2d 257 (1977); Hudson v. State, 240 Ga. 70, 239 S.E.2d 330 (1977); Brown v. Culpepper, 559 F.2d 274 (5th Cir. 1977); Mann v. Cox, 487 F. Supp. 147 (S.D. Ga. 1979); Dampier v. State, 245 Ga. 427, 265 S.E.2d 565 (1980); Robinson v. Kimbrough, 620 F.2d 468 (5th Cir. 1980); High v. State, 247 Ga. 289, 276 S.E.2d 5 (1981); Robinson v. Kimbrough, 652 F.2d 458 (5th Cir. 1981); Sacchinelli v. State, 161 Ga. App. 763, 288 S.E.2d 894 (1982); Gibson v. Zant, 705 F.2d 1543 (11th Cir. 1983); Davis v. Zant, 721 F.2d 1478 (11th Cir. 1983); Robinson v. State, 179 Ga. App. 616, 347 S.E.2d 667 (1986); Tankersley v. State, 261 Ga. 318, 404 S.E.2d 564 (1991); Wellons v. State, 266 Ga. 77, 463 S.E.2d 868 (1995); Cox v. State, 241 Ga. App. 388, 526 S.E.2d 887 (1999); Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000); Smith v. State, 275 Ga. 715, 571 S.E.2d 740 (2002); Greene v. State, 312 Ga. App. 666, 722 S.E.2d 77 (2011); Ellington v. State, 292 Ga. 109, 735 S.E.2d 736 (2012), overruled in part by Willis v. State, 2018 Ga. LEXIS 685 (Ga. 2018).

Jury Commissioners

Race may not be considered.

- To consider skin color in appointment of jury commissioners would be unconstitutional. Woods v. State, 222 Ga. 321, 149 S.E.2d 674 (1966), cert. denied, 386 U.S. 994, 87 S. Ct. 1311, 18 L. Ed. 2d 340 (1967) (decided under former Code 1933, § 59-106).

Duty to avoid discrimination.

- Jury commissioners have duty not to pursue course of conduct which results in racial discrimination. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974) (decided under former Code 1933, § 59-106).

Mere failure to comply with section does not give rise to federal cause of action.

- Failure of county jury commissioners to comply with this section, without a showing of systematic exclusion on the basis of race or some other ground forbidden by national policy, does not give rise to a federal cause of action. Simmons v. Jones, 478 F.2d 321 (5th Cir. 1973), modified, 519 F.2d 52 (5th Cir. 1975), for comment, see 8 Ga. L. Rev. 510 (1974) (decided under former Code 1933, § 59-106).

Good faith no defense.

- Fact that jury commissioners have acted in good faith is not a defense to the failure to discharge the affirmative duties cast upon the commissioners to compose a list of intelligent and upright jurors who represent a cross-section of such persons. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

If procedures used produce a list which is not representative of the county, the commissioners must find ways to supplement their sources of potential jurors' names. Berry v. Cooper, 577 F.2d 322 (5th Cir. 1978) (decided under former Code 1933, § 59-106).

It is mandatory that the number of persons selected to serve not exceed two-fifths of whole number selected for service. Kirksey v. State, 11 Ga. App. 142, 74 S.E. 902 (1912) (decided under former Penal Code 1910, §§ 816 and 819); Davis v. Arthur, 139 Ga. 74, 76 S.E. 676 (1912);(decided under former Penal Code 1910, §§ 816 and 819).

Makeup of Juries

1. In General

Constitutionality of standards set.

- Standards of intelligence, uprightness, and experience established for jurors in this section do not violate U.S. Const., amend. 14 or Ga. Const. 1945, Art. I, Sec. I, Para. III (see now Ga. Const. 1983, Art. I, Sec. I, Para. I) and Ga. Const. 1945, Art. I, Sec. I, Para. II (see now Ga. Const. 1983, Art. I, Sec. I, Paras. I, II). White v. State, 230 Ga. 327, 196 S.E.2d 849, appeal dismissed, 414 U.S. 886, 94 S. Ct. 222, 38 L. Ed. 2d 134 (1973) (decided under former Code 1933, § 59-106).

Death penalty qualification of jurors does not violate the right to an impartial jury drawn from a representative cross-section of the community. DeYoung v. State, 268 Ga. 780, 493 S.E.2d 157 (1997), cert. denied, 523 U.S. 114, 118 S. Ct. 1848, 140 L. Ed. 2d 1097 (1998) (decided under former O.C.G.A. § 15-12-40).

Jury list must include a fair cross-section of the eligible members of the community, not every eligible member of the community. Lipham v. State, 257 Ga. 808, 364 S.E.2d 840, cert. denied, 488 U.S. 873, 109 S. Ct. 191, 102 L. Ed. 2d 160 (1988) (decided under former O.C.G.A. § 15-12-40).

Burden of proof not met on fair cross section requirement.

- Although the defendant argued that the defendant was denied a fair trial because the jury array was selected in a manner that deprived the defendant of a fair cross-section of the community, the defendant failed to meet the defendant's burden because the defendant did not present any evidence of systematic or purposeful discrimination as the lack of information regarding the race of the jurors did not show that the composition of the array amounted to discrimination by random process; and because the state did not fail to show a fair cross-section as the defendant, not the state, bore the burden of proof on that issue; thus, the lack of information upon which the defendant relied proved nothing, and the defendant could not prevail. Grant v. State, 305 Ga. 170, 824 S.E.2d 255 (2019), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020).

Educational requirement.

- Contrary to defendant's statement that the jury commissioners required a high school education for grand jury service, defendant failed to present evidence clearly showing what educational requirement was applied. The testimony actually elicited indicated nothing more specific than that the commissioners had required prospective grand jurors to "have a third-grade education or something," and that each prospective grand juror removed as a candidate for the grand jury source list was replaced with a candidate from the same race and sex categories. Sealey v. State, 277 Ga. 617, 593 S.E.2d 335 (2004), overruled on other grounds by Willis v. State, 304 Ga. 686, 820 S.E.2d 640 (2018) (decided under former O.C.G.A. § 15-12-40).

Right to jury representing cross-section of community.

- Litigant in a civil case has a right under U.S. Const., amend. 14 to a jury list which fairly represents a cross-section of the community and that a jury roll is not such when excessive weight is given to some groups or classes. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

Tradition of trial by jury contemplates impartial jury drawn from cross-section of the community. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

Unified Appeal Procedure ensuring fair cross section.

- Unified Appeal Procedure provides a statewide procedure for creating and evaluating jury source lists, and that method was designed to promote adequate representation of cognizable groups through the use of a comprehensive and objective standard. Although in some instances, that procedure may create temporary, self-rectifying anomalies as decennial census reports grow old, the ill done by those temporary anomalies is outweighed by the other benefits of the procedure. Thus, a continued adherence to the requirements of the Unified Appeal Procedure regarding the balancing of cognizable groups to match the most-recent decennial census is justified by a sufficiently significant state interest. Finally, a fair cross-section was also guaranteed by former O.C.G.A. § 15-12-40 under standards "comparable if not identical" to Sixth Amendment standards. Williams v. State, 287 Ga. 735, 699 S.E.2d 25 (2010) (decided under former O.C.G.A. § 15-12-40).

Discrimination may result from inclusion or exclusion.

- Discrimination in jury selection may result from inclusion of certain groups as well as exclusion of others. An accused is entitled to have charges against the accused considered by a jury in the selection of which there has been neither inclusion nor exclusion because of race. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

Imperfection in representation not per se discrimination.

- System employed in selecting a jury list under the laws of this state may be imperfect in that the system fails to achieve the ideal of a perfectly representative cross-section of the citizens for service on juries, but imperfection is not per se discrimination. Burns v. State, 119 Ga. App. 678, 168 S.E.2d 786 (1969) (decided under former Code 1933, § 59-106).

Defendant's motion to quash an indictment based on defendant's claim that there was an under-representation of African-Americans on the grand jury was denied after it was shown that the grand jury source list was based on a significant state interest of obtaining comprehensiveness and objectivity in the selection process. Despite the fact that there was a disparity of over 10 percent from the federal census reports and the source list, there was no violation of defendant's rights shown under U.S. Const., amend. VI, amend. XIV, or under former O.C.G.A. § 15-12-40. Ramirez v. State, 276 Ga. 158, 575 S.E.2d 462 (2003) (decided under former O.C.G.A. § 15-12-40).

Disparity met constitutional requirements.

- Trial court did not err in denying the defendant's motion to quash the indictment based on the racial composition of the grand jury list because an absolute disparity of less than five percent was almost always constitutional, and the defendant showed no reason why that general rule did not apply in the defendant's case; the absolute disparity in over-representation on the grand jury list of 6.429 percent of African-Americans fell within a range that generally met constitutional requirements, and the defendant did not meet the defendant's burden of showing that the disparity violated the Sixth or Fourteenth Amendment of the United States Constitution, or former O.C.G.A. § 15-12-40. Worthy v. State, 307 Ga. App. 297, 704 S.E.2d 808 (2010) (decided under former O.C.G.A. § 15-12-40).

Jury roll need not be a perfect mirror of the community or accurately reflect proportionate strength of every identifiable group, for while the cross-sectional concept is firmly imbedded in the law, the Constitution does not require that the jury or jury venire be a statistical mirror of the community. Simmons v. Jones, 317 F. Supp. 397 (S.D. Ga. 1970), rev'd on other grounds, 478 F.2d 321 (5th Cir. 1973) (decided under former Code 1933, § 59-106).

As used in context of opportunity for discrimination, source of the jury list is the list of registered voters rather than the population as a whole since it is from the registered voters list that the jury commissioners select the initial jury array. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106).

List need not include every eligible citizen.

- There is no requirement that the jury list include the name of every citizen of the county eligible for jury service; the list must include a fair-cross-section of the eligible members of the community, not every eligible member of the community. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985) (decided under former O.C.G.A. § 15-12-40).

2. Representation of Classes

Age.

- Age is not a recognized class for purposes of jury representation. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106).

Eighteen to 21 age group does not constitute recognizable class for purposes of jury selection. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337 (1979), cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979) (decided under former Code 1933, § 59-106).

Eighteen to 29 year-olds.

- Petitioner failed to establish that young adults aged 18 to 29 constituted a cognizable group in petitioner's attempt to show under-representation of young adults in the jury pool since the group was not defined and petitioner did not prove that the views held by adults aged 18 to 29 could not be represented by other members of the community. Willis v. Kemp, 838 F.2d 1510 (11th Cir. 1988), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596 (1989) (decided under former O.C.G.A. § 15-12-40).

Exclusion of certain age group from jury pool does not result in per se illegal array. Florence v. State, 243 Ga. 738, 256 S.E.2d 467, cert. denied, 444 U.S. 953, 100 S. Ct. 431, 62 L. Ed. 2d 325 (1979) (decided under former Code 1933, § 59-106).

Underrepresentation of young persons on the grand jury list did not violate requirement that the grand jury be drawn from a fair cross section of the community; the underrepresentation was explained by the jury commissioner's compliance with the legal requirement that only a limited number of the most experienced persons on the traverse jury list be selected for inclusion on the grand jury list. Parks v. State, 254 Ga. 403, 330 S.E.2d 686 (1985) (decided under former O.C.G.A. § 15-12-40).

Underrepresentation of Hispanics.

- Supreme Court of Georgia found no need to address the trial court's finding regarding whether Hispanic persons were a cognizable group in Cobb County in order to decide the defendant's jury composition claim because: (1) the defendant failed to show any actual under-representation of Hispanic persons; (2) a slight over-representation of Hispanic persons who were citizens, in comparison to the total county population, was shown by the evidence; and (3) the defendant's own expert belied the defendant's claim of under-representation. Rice v. State, 281 Ga. 149, 635 S.E.2d 707 (2006) (decided under former O.C.G.A. § 15-12-40).

Women are an identifiable group for purposes of grand jury representation. Sanders v. State, 237 Ga. 858, 230 S.E.2d 291 (1976) (decided under former Code 1933, § 59-106).

Revision of Jury List

List not invalidated by delay.

- Statutes prescribing the time for selecting the jury list are held to be merely directory, and, if the list is at a later date properly selected and returned, the delay furnishes no ground of objection to the panel. Daughtery v. State, 59 Ga. App. 898, 2 S.E.2d 519 (1939) (decided under former Code 1933, § 59-106).

Provisions of this section are directory only and failure to revise the jury list in accordance with the timetable set forth does not invalidate the jury list or deprive the defendant of any right to which the defendant is entitled. Burney v. State, 244 Ga. 33, 257 S.E.2d 543, cert. denied, 444 U.S. 970, 100 S. Ct. 463, 62 L. Ed. 2d 385 (1979) (decided under former Code 1933, § 59-106).

Revision of jury lists not obligatory.

- Trial court's order quashing an indictment based solely on the failure to revise the grand jury list during the time period set forth in former O.C.G.A. § 15-12-40(a)(1) was reversed as the statute was not obligatory, but directory in nature, merely suggesting a timetable for grand jury lists to be revised. State v. Parlor, 281 Ga. 820, 642 S.E.2d 54 (2007) (decided under former O.C.G.A. § 15-12-40).

Delay in revising list.

- Fact that jury list should be revised every two years and that two years has elapsed since such revision had taken place has no effect on any rights guaranteed the defendant, and this is especially true if the court sets out in the record a reasonable ground for such slight delay. Daughtery v. State, 59 Ga. App. 898, 2 S.E.2d 519 (1939) (decided under former Code 1933, § 59-106).

If jury commissioners fail to revise the jury array for a period of three years and eight months, this alone did not invalidate the jury. Mooney v. State, 243 Ga. 373, 254 S.E.2d 337, cert. denied, 444 U.S. 886, 100 S. Ct. 179, 62 L. Ed. 2d 116 (1979) (decided under former Code 1933, § 59-106).

Failure of the jury commissioners to revise the jury array for a period of three years and eight months will not alone invalidate the jury. Florence v. State, 243 Ga. 738, 256 S.E.2d 467 (1979), cert. denied, 444 U.S. 953, 100 S. Ct. 431, 62 L. Ed. 2d 325 (1979) (decided under former Code 1933, § 59-106).

Revision found proper.

- Revision of jury list which replaced 1,933 names (which had become ineligible because of age, medical reasons, non residence, or felony convictions) with eligible names was lawful under subsection (b) of O.C.G.A. § 15-12-40. Ballenger Paving Co. v. Gaines, 231 Ga. App. 565, 499 S.E.2d 722 (1998) (decided under former O.C.G.A. § 15-12-40).

Writ of prohibition to prevent revision.

- Taxpayers not entitled to writ of prohibition to prevent revision of list. Teem v. Cox, 148 Ga. 175, 96 S.E. 131 (1918) (decided under former Penal Code 1910, §§ 816 and 819).

Citizens and taxpayers have no such interest as will authorize them to maintain a petition for the writ of prohibition to prevent the jury commissioners of the county from revising jury lists and making up jury boxes, and this principle is applicable to a case when a plaintiff is a citizen and taxpayer and also is an attorney at law. Ritcher v. Jordan, 184 Ga. 683, 192 S.E. 715 (1937) (decided under former Code 1933, § 59-106).

Proof of Jury Discrimination

1. In General

Blacks cannot be excluded.

- Conviction cannot stand if the conviction is based on an indictment of the grand jury or verdict of the petit jury from which blacks are excluded by reason of their race. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967) (decided under former Code 1933, § 59-106).

Systematic exclusion must be shown.

- Trial will not be struck down because, provided this section has been complied with, it so happens that the particular grand jury panel which returns the indictment or presentment is not in fact representative, nor will the court's denial of the challenge be overturned unless it appears undeniably that there has been in fact a systematic exclusion of some significantly identifiable representative segment of the population of registered voters. Julian v. State, 134 Ga. App. 592, 215 S.E.2d 496 (1975) (decided under former Code 1933, § 59-106).

Age-qualified population of women must be compared with the total age-qualified population, not with the total population, to determine under-representation. West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984) (decided under former O.C.G.A. § 15-12-40).

2. Burden of Proof

Burden of proving systematic exclusion.

- Defendant has the burden of proving the existence of systematic racial exclusion in the selection of jurors. Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969), vacated on other grounds, 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972) (decided under former Code 1933, § 59-106).

Burden is upon the defendant challenging the array of a jury to establish a prima facie case that there has been systematic exclusion of a distinct class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (decided under former Code 1933, § 59-106).

To challenge array of grand jury successfully, appellants must prove prima facie case of unconstitutional discrimination. Welch v. State, 237 Ga. 665, 229 S.E.2d 390 (1976) (decided under former Code 1933, § 59-106).

No burden to prove commissioners performed duty.

- There is no burden upon the state to prove that jury commissioners performed their duty as prescribed by this section. Garrett v. State, 133 Ga. App. 564, 211 S.E.2d 584 (1974), cert. denied, 423 U.S. 846, 96 S. Ct. 85, 46 L. Ed. 2d 68 (1975) (decided under former Code 1933, § 59-106).

Presumption that selection is according to law.

- Presumption is that jurors are selected and drawn according to law and are upright and intelligent. Adams v. State, 139 Ga. App. 670, 229 S.E.2d 142 (1976), overruled on other grounds, Kyles v. State, 243 Ga. 490, 255 S.E.2d 10 (1979) (decided under former Code 1933, § 59-106).

Once prima facie case is made out burden shifts to prosecution. Whitus v. Georgia, 385 U.S. 545, 87 S. Ct. 643, 17 L. Ed. 2d 599 (1967) (decided under former Code 1933, § 59-106); Sullivan v. State, 225 Ga. 301, 168 S.E.2d 133 (1969); 408 U.S. 935, 92 S. Ct. 2854, 33 L. Ed. 2d 749 (1972), vacated on other grounds, Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106);(decided under former Code 1933, § 59-106).

Mere affirmations of good faith are insufficient to dispel prima facie case of systematic exclusion when the opportunity for discrimination is present and when respondents fail to show that it is not practiced by the jury commissioners. Bonaparte v. Smith, 362 F. Supp. 1315 (S.D. Ga.), aff'd, 484 F.2d 956 (5th Cir. 1973), cert. denied, 415 U.S. 981, 94 S. Ct. 1572, 39 L. Ed. 2d 878 (1974) (decided under former Code 1933, § 59-106).

3. Elements of Prima Facie Case

What defendant must prove.

- In order to show systematic exclusion of a distinct class of citizens, the defendant must demonstrate sufficiently to establish a prima facie case that: (1) the sources from which the jury list was drawn are tainted in that they provide the opportunity for discrimination; and (2) that use of these sources resulted in a substantial disparity between the percentages of the separate class on the jury list and in the population as a whole. Implicit in these requirements is that the defendant has the burden of showing that the group defendant seeks to prove has been systematically excluded constitutes a distinct and separate class of citizens. Orkin v. State, 236 Ga. 176, 223 S.E.2d 61 (1976) (decided under former Code 1933, § 59-106); Fouts v. State, 240 Ga. 39, 239 S.E.2d 366 (1977); Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106);(decided under former Code 1933, § 59-106).

In order to make out a prima facie case of jury discrimination, the defendant must establish: (1) that a distinctive group or recognizable class in the community has been excluded from the jury lists; (2) that an opportunity for discrimination against this group existed from the source of the jury list; and (3) that use of the infected source produced a significant disparity between the percentages found present in the source and those actually appearing on the jury panels. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106); Berryhill v. State, 249 Ga. 442, 291 S.E.2d 685; 459 U.S. 981, 103 S. Ct. 317, 74 L. Ed. 2d 293 (1982), cert. denied,(decided under former O.C.G.A. § 15-12-40).

To make out a prima facie case of jury discrimination it must be proven that an opportunity for discrimination on account of race existed on the grounds that the source from which the potential jurors was drawn was racially biased, and that the use of such an "infected source" produced a significant disparity between the percentages of blacks found present in the source and those actually appearing on appellant's grand and petit jury panels. Cochran v. State, 155 Ga. App. 418, 271 S.E.2d 864 (1980) (decided under former Code 1933, § 59-106).

Gross disparity in representation may be sufficient.

- Challenger must establish by satisfactory evidence purposeful racial discrimination, even if the figures are not proportionate, except that a gross and unexplained disparity may be sufficient alone to demonstrate such discrimination. Talley v. State, 120 Ga. App. 365, 170 S.E.2d 444 (1969) (decided under former Code 1933, § 59-106).

The defendant always has the burden of showing jury discrimination. Evidence of "spectacular" underrepresentation meets the burden, making a prima facie case of discrimination. The burden of going forward then shifts to the government to explain the figures in a nondiscriminatory way. Cochran v. State, 155 Ga. App. 418, 271 S.E.2d 864 (1980) (decided under former Code 1933, § 59-106).

4. Specific Cases

Determination of significant disparity.

- It is the difference between the percentage of blacks on the grand jury list and the percentage in the population as a whole which actually determines whether a "significant disparity" exists to show discrimination. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106).

If defendant fails to establish impermissible disparity between percentages of blacks and women on a traverse jury panel and the source of these jurors in the population, the trial court is authorized to overrule defendant's challenge. Bowen v. State, 244 Ga. 495, 260 S.E.2d 855 (1979), cert. denied, 446 U.S. 970, 100 S. Ct. 2952, 64 L. Ed. 2d 831 (1980) (decided under former Code 1933, § 59-106).

Petitioner has established a prima facie case of jury discrimination if not one black selected to serve on panel of 60. Avery v. Georgia, 345 U.S. 559, 73 S. Ct. 891, 97 L. Ed. 1244 (1953), for comment, see 5 Mercer L. Rev. 207 (1953) (decided under former Code 1933, § 59-106).

Use of statistical evidence of underrepresentation.

- When the evidence shows that in three major identifiable groups (sex, race, and age), women are 91.2 percent underrepresented in the grand jury pool and 69.7 percent in the traverse or petit jury pool; African Americans are 49.5 percent underrepresented in the grand jury pool and 61.7 percent in the traverse or petit jury pools, the jury commissioners were, as a matter of law, remiss in the execution of their statutory duties. Gould v. State, 131 Ga. App. 811, 207 S.E.2d 519, aff'd in part and rev'd in part, 232 Ga. 844, 209 S.E.2d 312 (1974) (decided under former Code 1933, § 59-106).

When the grand jury list is composed of 15 percent women and eight percent blacks, while the county population is 55 percent women and 22 and one-half percent blacks, then there is too marked a disparity as a matter of law and the grand jury list is not fairly representative of the community. Sanders v. State, 237 Ga. 858, 230 S.E.2d 291 (1976) (decided under former Code 1933, § 59-106).

Trial court did not err by ruling that the composition of the grand and traverse jury pools did not violate the Constitution, former O.C.G.A. § 15-12-40, and the Unified Appeal Procedure when, in a comparison of the 1990 Census numbers for Hispanics in the county with the percentage of Hispanics on the jury lists, it was shown that the absolute disparities were within the legal limit. Morrow v. State, 272 Ga. 691, 532 S.E.2d 78 (2000), cert. denied, 532 U.S. 944, 121 S. Ct. 1408, 149 L. Ed. 2d 350 (2001) (decided under former O.C.G.A. § 15-12-40).

Calling commissioners as witnesses.

- If the voter registration list is maintained on a segregated basis by the use of separate file cards for whites and blacks, there can be no question that the trial court erred in refusing to allow the defendant to call the jury commissioners as witnesses to explain the relatively small percentage of blacks on the grand jury list. Cochran v. State, 151 Ga. App. 478, 260 S.E.2d 391 (1979) (decided under former Code 1933, § 59-106).

If women comprised 54 percent of the population of the county but only 18 percent of the grand jury list, a challenge to the composition of the jury list was well-taken and convictions and sentences obtained with jurys from such list were set aside. Devier v. State, 250 Ga. 652, 300 S.E.2d 490 (1983), cert. denied, 471 U.S. 1009, 105 S. Ct. 1877, 85 L. Ed. 2d 169 (1985) (decided under former O.C.G.A. § 15-12-40).

An absolute disparity of 17.7% between the percentage of females in the total population and the percentage of females comprising a grand jury demonstrated a violation of former O.C.G.A. § 15-12-40. West v. State, 252 Ga. 156, 313 S.E.2d 67 (1984) (decided under former O.C.G.A. § 15-12-40).

Unconstitutional exclusion of women from jury list.

- Defendant, under the following circumstances, was sentenced to die by a jury drawn from a list which unconstitutionally excluded women as: (1) there was a 22.7 percent variance between the percentage of women residing in the county and the percentage of women on the traverse jury list, immediately preceded by nearly a decade of even greater underrepresentation; (2) the largely subjective approach taken by the jury commissioners in composing the jury list, wherein no one was placed on the list who was not personally known by one of the commissioners, was susceptible of abuse; and (3) absent denials of discrimination, the state failed to offer an adequate explanation for the pattern of female underrepresentation. Bowen v. Kemp, 769 F.2d 672 (11th Cir. 1985), cert. denied, 478 U.S. 1021, 106 S. Ct. 3337, 92 L. Ed. 2d 742 (1986), vacated, 810 F.2d 1007 (11th Cir.), reinstated in part, 832 F.2d 546 (11th Cir. 1987), cert. denied, 485 U.S. 940, 108 S. Ct. 1120, 99 L. Ed. 2d 281, 485 U.S. 970, 108 S. Ct. 1247, 99 L. Ed. 2d 445 (1988) (decided under former O.C.G.A. § 15-12-40).

Petitioner established a violation of the Sixth Amendment's fair-cross-section requirement, notwithstanding jury commissioners' good faith belief that 39.36 percent representation of women on the master jury list "was in the ballpark guidelines that the Supreme Court would allow." Berryhill v. Zant, 858 F.2d 633 (11th Cir. 1988) (decided under former O.C.G.A. § 15-12-40).

A 6 percent disparity of blacks and a 7.1 percent disparity of women was not such an underrepresentation of blacks or of women on the grand jury list as to require reversal of defendant's murder conviction. Cochran v. State, 256 Ga. 113, 344 S.E.2d 402 (1986) (decided under former O.C.G.A. § 15-12-40).

Mere fact that a jury panel contains no black members when the accused is black will not, standing alone, support a challenge to the array and warrant the granting of a motion for a new jury. Hudson v. State, 185 Ga. App. 508, 364 S.E.2d 635 (1988) (decided under former O.C.G.A. § 15-12-40).

Fact that there are no jurors between ages of 18 and 21 not fatal.

- In a challenge to the array of petit jurors, the fact that no one between the ages of 18 and 21 was on the jury panel does not, standing alone, prove that there were no jurors of that age in the jury box; nor does it show a deliberate exclusion of such persons from jury service. This evidence alone is not sufficient to prove the jury list is not a fairly representative cross-section of the intelligent and upright citizens of the county. Treadwell v. State, 129 Ga. App. 573, 200 S.E.2d 323 (1973) (decided under former Code 1933, § 59-106).

Young persons not "distinct group."

- Defendant failed to demonstrate that persons between the ages of 18 and 23 constituted a "distinct and identifiable group in the community" for purposes of a challenge to the composition of the jury. Mincey v. State, 251 Ga. 255, 304 S.E.2d 882 (1983), cert. denied, 464 U.S. 977, 104 S. Ct. 414, 78 L. Ed. 2d 352 (1983) (decided under former O.C.G.A. § 15-12-40).

Underrepresentation of nonvoters on the traverse jury list did not provide a ground for challenge to the jury array, despite the defendant's assertion that blacks, young people, old people, and poor people tended to be underrepresented on voter registration lists; there was no substantial disparity shown between percentages of blacks in the county and on the jury list, and the defendant failed to demonstrate that young people, old people, and poor people were a cognizable group. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985) (decided under former O.C.G.A. § 15-12-40).

Compilation of a traverse jury list by jury commissioners who simply used the official registered voters' list without supplementing the list and without realizing that nonvoters could be included could not be the basis for reversible error in the absence of a showing that supplementation was necessary to achieve a fair cross-section of the community. Ingram v. State, 253 Ga. 622, 323 S.E.2d 801 (1984), cert. denied, 473 U.S. 911, 105 S. Ct. 3538, 87 L. Ed. 2d 661 (1985) (decided under former O.C.G.A. § 15-12-40).

Impersonation of juror by convicted felon.

- If it appeared from the extraordinary motion for a new trial that the name of one of the persons who served as a member of the jury was not in the jury box, that such person obtained a place on the jury by fraudulently impersonating another, and that before the trial this "juror" had twice been convicted of a felony, and that on discovering the same they acted promptly in presenting the extraordinary motion for a new trial, the facts alleged therein were such as to require the grant of a new trial, in the absence of any showing to the contrary. Wright v. Davis, 184 Ga. 846, 193 S.E. 757 (1937) (decided under former Code 1933, § 59-106).

Failure to make prima facie claim of intentional discrimination.

- Defendant could not make a prima facie claim of intentional discrimination under the equal protection clause of the Fourteenth Amendment because the defendant failed to show that the jury selection procedure in the defendant's case was susceptible of abuse or was not racially neutral; the Supreme Court of Georgia adopted the use of the decennial census in the Unified Appeal Procedure as a benchmark for the very purpose of promoting adequate representation of cognizable groups, and the demographic changes at issue in the defendant's case were beyond the control of the county's jury commissioners. Williams v. State, 287 Ga. 735, 699 S.E.2d 25 (2010) (decided under former O.C.G.A. § 15-12-40).

Absolute disparity of Hispanic jurors under five percent did not violate statute.

- Defendant's argument that Hispanic persons were misrepresented in the composition of the grand and traverse jury pools in violation of the Sixth and Fourteenth Amendments and former O.C.G.A. § 15-12-40 was rejected because the defendant failed to show any actual misrepresentation of this group: the defendant's own expert witness testified that when using 2000 Census data, absolute disparity figures for Hispanics were under the five percent threshold, although when adjusted to account for the citizenship rate of Hispanic persons, the absolute disparity figure showed over-representation by 6.12 percent for the grand jury list. Thus, the absolute disparity figures were well within the constitutional requirements of 10 percent. Foster v. State, 288 Ga. 98, 701 S.E.2d 189 (2010) (decided under former O.C.G.A. § 15-12-40).

5. Pleading and Practice

Defect which goes to legality of selection of panel of jurors is ground for challenge to array. Derryberry v. Higdon, 116 Ga. App. 381, 157 S.E.2d 559 (1967) (decided under former Code 1933, § 59-106).

White defendant lacked standing to make an equal protection claim against the state for excluding all black jurors by use of preemptory challenges. McGuire v. State, 185 Ga. App. 233, 363 S.E.2d 850 (1987) (decided under former O.C.G.A. § 15-12-40).

Challenge to array waived if not made before verdict.

- In the absence of an objection in the nature of a challenge to the array of the panel properly made before the verdict, a party in a civil trial waives the right and has no ground for complaint after verdict. Derryberry v. Higdon, 116 Ga. App. 381, 157 S.E.2d 559 (1967) (decided under former Code 1933, § 59-106).

Challenge to array of grand jury waived if not made before indictment.

- Plea in abatement by which the defendant contended that the indictment returned against the defendant is void because the grand jury returning the indictment was chosen from the tax digest rather than from the voters' list as required, which plea is not filed until the case is sounded for trial and which sets forth therein no reason why the defendant could not have challenged the array of the grand jurors prior to the indictment, is properly overruled. Wooten v. State, 224 Ga. 106, 160 S.E.2d 403 (1968) (decided under former Code 1933, § 59-106).

Challenge to the array of grand jurors may not be entertained by a trial court unless it is made prior to the return of the indictment or the defendant has shown that the defendant had neither actual nor constructive knowledge of the alleged illegal composition of the grand jury prior to the time the indictment was returned. Tennon v. Ricketts, 574 F.2d 1243 (5th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S. Ct. 874, 59 L. Ed. 2d 57 (1979) (decided under former Code 1933, § 59-106).

Fugitives.

- Undisputed fact is that the defendant fled the state immediately after the homicide. Although the defendant presumed that the state would wish to arrest the defendant, the defendant deliberately chose to be denied the opportunity to "notice before indictment". Defendant was indicted while the defendant was yet an unlocated fugitive in a distant state. After apprehension, the defendant says that the federal Constitution guarantees the defendant the right to proceed as if the defendant had not fled; that is, the defendant should be treated more advantageously than those who remain within the jurisdiction and submit in an orderly manner to prescribed procedures. However, the Constitution does not mandate such special treatment for fugitives. Tennon v. Ricketts, 574 F.2d 1243 (5th Cir. 1978), cert. denied, 439 U.S. 1091, 99 S. Ct. 874, 59 L. Ed. 2d 57 (1979) (decided under former Code 1933, § 59-106).

If there was no challenge to the initial programmed randomness of selecting jurors from a scan of the entire list of registered voters, defendant was not entitled to an additional final computer printout comprised of another entirely random arrangement of the previously randomly selected individuals. Larmon v. State, 177 Ga. App. 763, 341 S.E.2d 237, aff'd, 256 Ga. 228, 345 S.E.2d 587 (1986) (decided under former O.C.G.A. § 15-12-40).

Defendant's challenge to the master jury list for the first time in the defendant's third amended motion for a new trial was too late; a challenge to the jury lists was required to be made at the time the jury is put upon the defendant or else be waived. Neither the Jury Composition Reform Act of 2011 nor the Jury Composition Rule relaxed that requirement. Hill v. State, Ga. , S.E.2d (Sept. 28, 2020).

OPINIONS OF THE ATTORNEY GENERAL

Editor's notes.

- In light of the similarity of the statutory provisions, annotations decided under former Code 1933, § 59-106 and former O.C.G.A. § 15-12-42 are included in the annotations for this Code section.

Proper interpretation of this section is that jury commissioners are to compose the jury list by selecting a fairly representative cross-section of the county by placing at least 50 percent of the registered voters on the jury list; as long as it appears that the selection of the registered voters, from the voters' list most recently revised by the county board of registrars or other county election officials, is a fairly representative cross-section of the intelligent and upright citizens of the county, the requirements of this section are satisfied. 1978 Op. Att'y Gen. No. 78-52 (decided under former Code 1933, § 59-106).

Military personnel.

- Supremacy clause of U.S. Constitution prohibits United States military personnel from serving on state juries. 1980 Op. Att'y Gen. No. 80-125 (decided under former Code 1933, § 59-106).

Possibility of conflict of interest between grand jury and county board of tax equalization would not constitute disqualification for service upon either body, but would be a question for the court at the time of jury selection. 1973 Op. Att'y Gen. No. U73-111 (decided under former Code 1933, § 59-106).

Person operating computer need not be court official.

- In those counties utilizing mechanical or electronic means for the selection of jurors, the person who operates the computer pursuant to the clerk's direction need not be a court official. 1982 Op. Att'y Gen. No. U82-5 (decided under former O.C.G.A. § 15-12-42).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Jury, §§ 101 et seq., 119 et seq., 128.

C.J.S.

- 50A C.J.S., Juries, §§ 306, 308, 311 et seq.

ALR.

- Effect of, and remedies for, exclusion of eligible class or classes of persons from jury list in criminal case, 52 A.L.R. 919.

Irregularity in drawing names for a jury panel as ground of complaint by defendant in criminal prosecution, 92 A.L.R. 1109.

Eligibility of women as jurors, 157 A.L.R. 461.

Membership in secret order or organization for the suppression of crime as proper subject of examination, or ground of challenge, of juror, 158 A.L.R. 1361.

Exclusion of women from grand or trial jury panel in criminal case as violation of constitutional rights of accused or as ground for reversal of conviction, 9 A.L.R.2d 661, 70 A.L.R.5th 587.

Validity of enactment requiring juror to be an elector or voter or have qualifications thereof, 78 A.L.R.3d 1147.

Validity of requirement or practice of selecting prospective jurors exclusively from list of registered voters, 80 A.L.R.3d 869.

Validity of statutory classifications based on population - jury selection statutes, 97 A.L.R.3d 434.

Age group underrepresentation in grand jury or petit jury venire, 62 A.L.R.4th 859.

Validity and application of computerized jury selection practice or procedure, 110 A.L.R.5th 329.

Prejudicial effect of juror's inability to comprehend English, 117 A.L.R.5th 1.

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