Supreme Court Cites Errors in JURY SELECTION, Grants New Trial

Pictured in the courtroom at the Supreme Court Building in Nashville are (seated) Chief Justice Sharon G. Lee, (standing left to right) Justice Holly M. Kirby, Justice Jeffrey S. Bivins, Justice Gary R. Wade, and Justice Cornelia A. Clark
Pictured in the courtroom at the Supreme Court Building in Nashville are (seated) Chief Justice Sharon G. Lee, (standing left to right) Justice Holly M. Kirby, Justice Jeffrey S. Bivins, Justice Gary R. Wade, and Justice Cornelia A. Clark

Nashville, Tenn. – The Tennessee Supreme Court has ordered a new trial in a Union County sexual battery case because the jury was not selected in the manner prescribed by the Tennessee Rules of Criminal Procedure. Dominic Frausto was found guilty by a jury in 2009 of two counts of sexual battery. He appealed the case, challenging, among other things, the method used to select the jury for his trial.

The process for selecting a juror in criminal trials is laid out in the Rules of Criminal Procedure and is very specific. As part of this process, the prosecution and the defense receive an equal number of peremptory challenges, which they may use to dismiss jurors without stating a reason for their dismissal.

Typically, before peremptory challenges are exercised, a group of jurors is seated in the jury box and questioned by attorneys for both sides. The attorneys are then given an opportunity to exercise peremptory challenges. When attorneys use peremptory challenges to eliminate prospective jurors, the trial judge replaces the jurors in the order of their dismissal with other prospective jurors not yet seated in the jury box. Questioning resumes, additional peremptory challenges are exercised, and additional replacement jurors are seated until either the attorneys are satisfied with the panel of jurors, or they run out of challenges.

In this case, a group of 18 prospective jurors was brought in and questioned, and the defense attorney used seven of his nine peremptory challenges, bringing the panel to 11. Rather than seating two replacement jurors, to bring the jury to the 13 needed for trial, the trial judge excused the first group of 11, seated an entirely different group of 18, and allowed the attorneys to begin interviewing this new group.

After the parties exercised five more peremptory challenges, and the trial court dismissed another juror for cause, 12 jurors from the second group remained. The trial court then combined the first group of 11 with the second group of 12, and from this combined group of 23, the trial court randomly selected 13 jurors to serve as Mr. Frausto’s trial jury. The defense objected to the use of this method of jury selection, which is not authorized by the Rules of Criminal Procedure, but was overruled by the trial court.

Mr. Frausto appealed the ultimate guilty verdict of the trial court to the Court of Criminal Appeals, which affirmed the decision. The Supreme Court agreed to hear the case and determined that the deviations from the jury selection procedure required by the Rules of Criminal Procedure deprived the parties of their opportunity to properly exercise their peremptory challenges and resulted in prejudice to the judicial process. The Supreme Court granted Mr. Frausto a new trial.

To read the State v. Dominic Eric Frausto opinion, authored by Justice Cornelia A. Clark, visit the Opinions section of

About Brad Jones

Brad is the Owner/Operator of BBB TV 12, and has been with the company since August of 1996. Brad is a 1987 graduate of Coalfield High School and a 1995 graduate of the University of Tennessee College of Communications. He won the 1995 broadcast production student of the year award. Brad worked at Shop at Home, Inc. a home shopping network that was located in Knoxville, TN from 1993 - 1995 and then at Via TV (RSTV, Inc.) from 1995 - 1996. After some freelance work in Nashville, Brad joined the BBB Communications staff in August of 1996. A short stint at WVLT TV as a news photographer was in 2001, but he continued to work at BBB TV as well. Brad is married to Nicole Jenkins Jones, a 1990 graduate of Oak Ridge High School, who works at Oak Ridge Gastroenterology and Associates in Oak Ridge. They have 3 kids, Trevor Bogard, 27, Chandler 22, and Naomi 13. On December 12, 2013 they welcomed their first grandchild, Carter Ryan Bogard. Brad is also the assistant boys basketball coach at Coalfield High School for the past 11 years. In 2013-14 the Yellow Jackets won their first district title since 1991 and just the 4th in school history.

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