Within seven days after a party discovers, or by the exercise of diligence could have discovered, the grounds therefor, and in any event before the jury is sworn to try the case, that party may move to stay the proceedings, and in a criminal case to dismiss the indictment, or for other appropriate relief, on the ground of substantial failure to comply with the Jury Selection and Service Act in selecting the jury.104

 The challenging party must file a motion containing a sworn statement of facts which, if true, would constitute a substantial failure to comply with the Act. The moving party is also entitled to present in support of the motion the testimony of clerk, any relevant records and papers not public or otherwise available used by the clerk and any other relevant evidence. If the court determines that in selecting a jury there has been a substantial failure to comply with the Act, the court may stay proceedings pending the selection of a jury in conformity with the Act, dismiss an indictment or grant other appropriate relief.105

 Substantial failure to comply with the Act will be found only if non-compliance contravenes the basic principles of the Act, i.e., random selection and excuse or disqualification on the basis of objective criteria only. The function of Act is to provide general guidelines to be used in providing jury trials. It is not intended to establish rigid procedures mandated for every situation regardless of the varying needs of the specific types of cases.106 Technical deviations that do not frustrate random selection and fair cross-section requirements and do not result in impermissible discrimination and arbitrariness will not constitute a substantial failure to comply with the Act.107

104. 10 Del. C. § 4512(a).

105. 10 Del. C. § 4512(b).

106. Farrell v. A.C. & S. Co., Inc., C.A. No. 85C-FE-10, slip op. at 5-6, Taylor, J. (Del. Super. May 11, 1989) (ORDER).

107. Celotex Corp. v. Wilson, 607 A.2d 1223, 1228 (Del. 1992). See also State v. Robinson, 417 A.2d 953, 958 (Del. 1980); Quillen v. State, 112 A.2d 848, 850 (Del. 1955).

© 2010  David L. Finger