Page 443 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1866

State or Federal court of record of, a crime wheel and shall place in such wheel names of all punishable by imprisonment for more than persons drawn from the master jury wheel who one year and his civil rights have not been re- are determined to be qualified as jurors and not stored. exempt or excused pursuant to the district court (June 25, 1948, ch. 646, 62 Stat. 952; Pub. L. 90–274, plan. From time to time, the jury commission § 101, Mar. 27, 1968, 82 Stat. 58; Pub. L. 92–269, § 1, or the clerk shall draw at random from the Apr. 6, 1972, 86 Stat. 117; Pub. L. 95–572, § 3(a), qualified jury wheel such number of names of Nov. 2, 1978, 92 Stat. 2453; Pub. L. 100–702, title persons as may be required for assignment to VIII, § 803(b), Nov. 19, 1988, 102 Stat. 4658; Pub. L. grand and petit jury panels. The clerk or jury 106–518, title III, § 305, Nov. 13, 2000, 114 Stat. commission shall post a general notice for pub- 2418.) lic review in the clerk’s office and on the court’s website explaining the process by which names HISTORICAL AND REVISION NOTES are periodically and randomly drawn. The jury Based on title 28, U.S.C., 1940 ed., §§ 181, 413 (Mar. 3, commission or the clerk shall prepare a separate 1911, ch. 231, §§ 100, 277, 36 Stat. 1121, 1164). list of names of persons assigned to each grand Section consolidates a part of section 181 with section and petit jury panel. 413 of title 28, U.S.C., 1940 ed. Other provisions of said (b) When the court orders a grand or petit jury section 181 are incorporated in section 115 of this title. to be drawn, the clerk or jury commission or Word ‘‘jurors’’ was changed to ‘‘grand and petit ju- their duly designated deputies shall issue sum- rors’’ upon authority of Agnew v. United States, 1897, 17 S.Ct. 235, 165 U.S. 36, 41 L.Ed. 624, construing such term monses for the required number of jurors. to include both types of jurors. Each person drawn for jury service may be The last sentence of subsection (a) was added to con- served personally, or by registered, certified, or form with existing practice in many districts. Sub- first-class mail addressed to such person at his section (b) extends to all districts a provision of section usual residence or business address. 181 of title 28, U.S.C., 1940 ed., which was designed for If such service is made personally, the sum- the convenience of the districts in Ohio and permitted mons shall be delivered by the clerk or the jury jurors drawn for service at Cleveland, Toledo, and Co- commission or their duly designated deputies to lumbus to serve at Youngstown, Lima, and Steuben- the marshal who shall make such service. ville, respectively. If such service is made by mail, the summons Changes were made in phraseology. may be served by the marshal or by the clerk, AMENDMENTS the jury commission or their duly designated 2000—Subsec. (a). Pub. L. 106–518, § 305(1), inserted ‘‘or deputies, who shall make affidavit of service and the clerk under supervision of the court if the court’s shall attach thereto any receipt from the ad- jury selection plan so authorizes,’’ after ‘‘jury commis- dressee for a registered or certified summons. sion,’’. (c) Except as provided in section 1865 of this Subsec. (b). Pub. L. 106–518, § 305(2), inserted ‘‘or the title or in any jury selection plan provision clerk if the court’s jury selection plan so provides,’’ adopted pursuant to paragraph (5) or (6) of sec- after ‘‘may provide,’’ in introductory provisions. tion 1863(b) of this title, no person or class of 1988—Subsec. (a). Pub. L. 100–702 substituted ‘‘in any alphabetical’’ for ‘‘the alphabetical’’. persons shall be disqualified, excluded, excused, 1978—Subsec. (b)(5). Pub. L. 95–572 struck out ‘‘by par- or exempt from service as jurors: Provided, That don or amnesty’’ after ‘‘civil rights have not been re- any person summoned for jury service may be stored’’. (1) excused by the court, or by the clerk under 1972—Subsec. (b)(1). Pub. L. 92–269 substituted ‘‘eight- supervision of the court if the court’s jury selec- een years old’’ for ‘‘twenty-one years old’’. tion plan so authorizes, upon a showing of undue 1968—Subsec. (a). Pub. L. 90–274 substituted provi- hardship or extreme inconvenience, for such pe- sions for the excusing of persons from jury service by the chief judge of the district court or by other district riod as the court deems necessary, at the con- court judge for provisions requiring the selection of ju- clusion of which such person either shall be rors so as to be most favorable to an impartial trial and summoned again for jury service under sub- so as to minimize the expense and burden of jury serv- sections (b) and (c) of this section or, if the ice. court’s jury selection plan so provides, the name Subsec. (b). Pub. L. 90–274 substituted provisions set- of such person shall be reinserted into the quali- ting out the conditions of ineligibility for jury service fied jury wheel for selection pursuant to sub- for provisions authorizing the service of jurors in a section (a) of this section, or (2) excluded by the place within the district other than the place for which the jurors were summoned. court on the ground that such person may be un- able to render impartial jury service or that his EFFECTIVE DATE OF 1978 AMENDMENT service as a juror would be likely to disrupt the Amendment by Pub. L. 95–572 applicable with respect proceedings, or (3) excluded upon peremptory to any grand or petit juror summoned for service or ac- challenge as provided by law, or (4) excluded tually serving on or after Nov. 2, 1978, see section 7(a) pursuant to the procedure specified by law upon of Pub. L. 95–572, set out as an Effective Date note a challenge by any party for good cause shown, under section 1363 of this title. or (5) excluded upon determination by the court EFFECTIVE DATE OF 1968 AMENDMENT that his service as a juror would be likely to Amendment by Pub. L. 90–274 effective 270 days after threaten the secrecy of the proceedings, or Mar. 27, 1968, except as to cases in which an indictment otherwise adversely affect the integrity of jury has been returned or a petit jury empaneled prior to deliberations. No person shall be excluded under such effective date, see section 104 of Pub. L. 90–274, set clause (5) of this subsection unless the judge, in out as a note under section 1861 of this title. open court, determines that such is warranted and that exclusion of the person will not be in- § 1866. Selection and summoning of jury panels consistent with sections 1861 and 1862 of this (a) The jury commission, or in the absence title. The number of persons excluded under thereof the clerk, shall maintain a qualified jury clause (5) of this subsection shall not exceed one § 1866 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE Page 444 per centum of the number of persons who return 1949 ACT executed jury qualification forms during the pe- This section amends section 1866 of title 28, U.S.C., by riod, specified in the plan, between two consecu- restoring provision of original law that special juries tive fillings of the master jury wheel. The names be impaneled in accordance with laws of the respective of persons excluded under clause (5) of this sub- States. section, together with detailed explanations for AMENDMENTS the exclusions, shall be forwarded immediately 2008—Subsec. (a). Pub. L. 110–406, § 5(b), struck out to the judicial council of the circuit, which shall ‘‘publicly’’ after ‘‘clerk shall’’ in second sentence and have the power to make any appropriate order, inserted ‘‘The clerk or jury commission shall post a prospective or retroactive, to redress any misap- general notice for public review in the clerk’s office plication of clause (5) of this subsection, but and on the court’s website explaining the process by otherwise exclusions effectuated under such which names are periodically and randomly drawn.’’ after second sentence. clause shall not be subject to challenge under Subsec. (g). Pub. L. 110–406, § 17(b), substituted ‘‘$1,000, the provisions of this title. Any person excluded imprisoned not more than three days, ordered to per- from a particular jury under clause (2), (3), or (4) form community service, or any combination thereof.’’ of this subsection shall be eligible to sit on an- for ‘‘$100 or imprisoned not more than three days, or other jury if the basis for his initial exclusion both.’’ would not be relevant to his ability to serve on Pub. L. 110–406, § 4, substituted ‘‘may be ordered’’ for ‘‘shall be ordered’’ and struck out ‘‘his’’ before ‘‘failure such other jury. to comply’’. (d) Whenever a person is disqualified, excused, 1988—Subsec. (c)(1). Pub. L. 100–702 amended cl. (1) exempt, or excluded from jury service, the jury generally. Prior to amendment, cl. (1) read as follows: commission or clerk shall note in the space pro- ‘‘excused by the court, upon a showing of undue hard- vided on his juror qualification form or on the ship or extreme inconvenience, for such period as the juror’s card drawn from the qualified jury wheel court deems necessary, at the conclusion of which such the specific reason therefor. person shall be summoned again for jury service under subsections (b) and (c) of this section, or’’. (e) In any two-year period, no person shall be 1983—Subsec. (b). Pub. L. 97–463, § 2, inserted provision required to (1) serve or attend court for prospec- in second par. authorizing service by first-class mail of tive service as a petit juror for a total of more persons drawn for jury service, substituted in fourth than thirty days, except when necessary to com- par. ‘‘If such service is made by mail, the summons plete service in a particular case, or (2) serve on may be served by the marshal or by the clerk, the jury more than one grand jury, or (3) serve as both a commission or their duly designated deputies, who grand and petit juror. shall make affidavit of service and shall attach thereto any receipt from the addressee for a registered or cer- (f) When there is an unanticipated shortage of tified summons’’ for ‘‘If such service is made by reg- available petit jurors drawn from the qualified istered or certified mail, the summons may be served jury wheel, the court may require the marshal by the clerk or jury commission or their duly des- to summon a sufficient number of petit jurors ignated deputies who shall make affidavit of service selected at random from the voter registration and shall file with such affidavit the addressee’s receipt lists, lists of actual voters, or other lists speci- for the registered or certified summons’’ and struck out fied in the plan, in a manner ordered by the provision requiring the marshal, if service was made by the marshal, to attach to his return the addressee’s re- court consistent with sections 1861 and 1862 of ceipt for the registered or certified mail. this title. 1978—Subsec. (c). Pub. L. 95–572 struck out introduc- (g) Any person summoned for jury service who tory text reference to par. (7) of section 1863(b) of this fails to appear as directed may be ordered by the title. district court to appear forthwith and show 1970—Subsec. (b). Pub. L. 91–543 inserted provisions cause for failure to comply with the summons. authorizing duly designated deputies of the clerk or the jury commission to issue summonses, and deliver them Any person who fails to show good cause for to the marshal for service when personal service is to noncompliance with a summons may be fined be made, and provisions authorizing, if service is made not more than $1,000, imprisoned not more than by registered or certified mail, the clerk or the jury three days, ordered to perform community serv- commission or their duly designated deputies to make ice, or any combination thereof. service of the summons. 1968—Subsec. (a). Pub. L. 90–274 substituted provi- (June 25, 1948, ch. 646, 62 Stat. 952; May 24, 1949, sions authorizing the commission or clerk to maintain ch. 179, § 96, 63 Stat. 103; Pub. L. 90–274, § 101, a jury wheel of qualified jurors and to draw particular Mar. 27, 1968, 82 Stat. 58; Pub. L. 91–543, Dec. 11, panels therefrom for provisions authorizing the mar- 1970, 84 Stat. 1408; Pub. L. 95–572, § 2(b), Nov. 2, shal to summon talesmen from the bystanders when there is an insufficient number of petit jurors. 1978, 92 Stat. 2453; Pub. L. 97–463, § 2, Jan. 12, 1983, Subsec. (b). Pub. L. 90–274 substituted provisions di- 96 Stat. 2531; Pub. L. 100–702, title VIII, § 801, recting the clerk or jury commission to deliver sum- Nov. 19, 1988, 102 Stat. 4657; Pub. L. 110–406, §§ 4, monses to the marshal for service when the court or- 5(b), 17(b), Oct. 13, 2008, 122 Stat. 4292, 4295.) ders a grand or petit jury to be drawn and setting out the details of service for provisions requiring that, HISTORICAL AND REVISION NOTES when a special jury was ordered by a district court, it 1948 ACT had to be returned by the marshal in the same manner and form as was required in such case by the law of the Based on title 28, U.S.C., 1940 ed., §§ 417, 418 (Mar. 3, State in which the district court sat. 1911, ch. 231, §§ 280, 281, 36 Stat. 1165). Subsecs. (c) to (g). Pub. L. 90–274 added subsecs. (c) to Section consolidates parts of sections 417, 418 of title (g). 28, U.S.C., 1940 ed., with necessary changes in phrase- 1949—Act May 24, 1949, divided section into sub- ology. sections and restored provisions that special juries be The requirement of section 418 of title 28, U.S.C., 1940 impaneled in accordance with State law. ed., for the summoning of a special jury in accordance with the law of the state was omitted as unnecessary EFFECTIVE DATE OF 1978 AMENDMENT and incongruous in view of other sections of this chap- Amendment by Pub. L. 95–572 applicable with respect ter making adequate provision for summoning jurors. to any grand or petit juror summoned for service or ac- Page 445 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 1868 tually serving on or after Nov. 2, 1978, see section 7(a) cation or enforcement of any law prohibiting of Pub. L. 95–572, set out as an Effective Date note discrimination on account of race, color, reli- under section 1363 of this title. gion, sex, national origin or economic status in EFFECTIVE DATE OF 1968 AMENDMENT the selection of persons for service on grand or Amendment by Pub. L. 90–274 effective 270 days after petit juries. Mar. 27, 1968, except as to cases in which an indictment (f) The contents of records or papers used by has been returned or a petit jury empaneled prior to the jury commission or clerk in connection with such effective date, see section 104 of Pub. L. 90–274, set the jury selection process shall not be disclosed, out as a note under section 1861 of this title. except pursuant to the district court plan or as may be necessary in the preparation or presen- § 1867. Challenging compliance with selection tation of a motion under subsection (a), (b), or procedures (c) of this section, until after the master jury (a) In criminal cases, before the voir dire ex- wheel has been emptied and refilled pursuant to amination begins, or within seven days after the section 1863(b)(4) of this title and all persons se- defendant discovered or could have discovered, lected to serve as jurors before the master wheel by the exercise of diligence, the grounds there- was emptied have completed such service. The for, whichever is earlier, the defendant may parties in a case shall be allowed to inspect, re- move to dismiss the indictment or stay the pro- produce, and copy such records or papers at all ceedings against him on the ground of substan- reasonable times during the preparation and tial failure to comply with the provisions of this pendency of such a motion. Any person who dis- title in selecting the grand or petit jury. closes the contents of any record or paper in vio- (b) In criminal cases, before the voir dire ex- lation of this subsection may be fined not more amination begins, or within seven days after the than $1,000 or imprisoned not more than one Attorney General of the United States discov- year, or both. ered or could have discovered, by the exercise of diligence, the grounds therefor, whichever is (June 25, 1948, ch. 646, 62 Stat. 953; Pub. L. 85–259, earlier, the Attorney General may move to dis- Sept. 2, 1957, 71 Stat. 583; Pub. L. 90–274, § 101, miss the indictment or stay the proceedings on Mar. 27, 1968, 82 Stat. 59.) the ground of substantial failure to comply with HISTORICAL AND REVISION NOTES the provisions of this title in selecting the grand Based on title 28, U.S.C., 1940 ed., § 416 (Mar. 3, 1911, or petit jury. ch. 231, § 279, 36 Stat. 1165; Jan. 31, 1929, ch. 126, 45 Stat. (c) In civil cases, before the voir dire examina- 1145). tion begins, or within seven days after the party Provisions for service by a disinterested person when discovered or could have discovered, by the exer- marshal or his deputy is disqualified is incorporated in cise of diligence, the grounds therefor, which- section 1868 of this title. ever is earlier, any party may move to stay the Provision for payment and reimbursement of postage proceedings on the ground of substantial failure and registry fee were omitted as covered by section 560 of this title. to comply with the provisions of this title in se- Word ‘‘summons’’ was substituted for ‘‘writ of venire lecting the petit jury. facias’’ in harmony with the Federal Rules of Civil Pro- (d) Upon motion filed under subsection (a), (b), cedure which abolished unnecessary forms. See Rule or (c) of this section, containing a sworn state- 81(b) thereof, and Rule 12 of the Federal Rules of Crimi- ment of facts which, if true, would constitute a nal Procedure. substantial failure to comply with the provi- Provision of section 416 of title 28, U.S.C., 1940 ed., sions of this title, the moving party shall be en- that the receipt of the person so addressed by reg- titled to present in support of such motion the istered mail should be regarded as personal service, was omitted. Such omission is consistent with Rule 5(b) of testimony of the jury commission or clerk, if the Federal Rules of Civil Procedure providing that available, any relevant records and papers not service by mail is complete upon mailing. public or otherwise available used by the jury Provision for attachment to the return of the ad- commissioner or clerk, and any other relevant dressee’s receipt for the summons, was inserted to evidence. If the court determines that there has cover its disposition. been a substantial failure to comply with the Provision that no mileage shall be allowed for service provisions of this title in selecting the grand by mail was omitted as unnecessary. Changes were made in phraseology. jury, the court shall stay the proceedings pend- ing the selection of a grand jury in conformity AMENDMENTS with this title or dismiss the indictment, which- 1968—Pub. L. 90–274 substituted provisions by which a ever is appropriate. If the court determines that defendant may assert noncompliance with the selection there has been a substantial failure to comply procedures of the jury for provisions covering the issu- with the provisions of this title in selecting the ance of summonses for jurors and service thereof upon petit jury, the court shall stay the proceedings jurors. pending the selection of a petit jury in conform- 1957—Pub. L. 85–259 inserted ‘‘or certified’’ in second and third sentences. ity with this title. (e) The procedures prescribed by this section EFFECTIVE DATE OF 1968 AMENDMENT shall be the exclusive means by which a person Amendment by Pub. L. 90–274 effective 270 days after accused of a Federal crime, the Attorney Gen- Mar. 27, 1968, except as to cases in which an indictment eral of the United States or a party in a civil has been returned or a petit jury empaneled prior to case may challenge any jury on the ground that such effective date, see section 104 of Pub. L. 90–274, set such jury was not selected in conformity with out as a note under section 1861 of this title. the provisions of this title. Nothing in this sec- § 1868. Maintenance and inspection of records tion shall preclude any person or the United States from pursuing any other remedy, civil or After the master jury wheel is emptied and re- criminal, which may be available for the vindi- filled pursuant to section 1863(b)(4) of this title,