No Per Se Reversal for Technical Jury-Selection Violations: State v. Hillious Clarifies Substantial Compliance, Strict Timeliness, and Treats TOP Petitions as Testimonial

Introduction

In State v. Hillious, 2025 MT 53, the Supreme Court of Montana affirmed a deliberate homicide conviction while delivering two significant doctrinal clarifications in Montana criminal procedure and evidence:

First, the Court clarified the “substantial compliance” standard governing statutory challenges to jury selection. It held that a clerk’s failure to personally serve nonresponding prospective jurors—a violation of § 3-15-405, MCA—was a technical statutory error that did not, on this record, undermine the randomness or objectivity of jury selection. The Court expressly rejected the notion that any statutory defect in jury selection is automatically a structural error requiring per se reversal.
Second, the Court enforced strict timeliness rules for jury-panel challenges and motions for new trial, declining to import civil “knowledge or means of knowledge” exceptions into criminal practice and emphasizing counsel’s duty to investigate jury formation before trial.

Additionally, the Court found a Confrontation Clause violation when the trial court admitted the victim’s sworn petition for a temporary order of protection (TOP) as substantive evidence; the petition was testimonial hearsay. Nonetheless, the error was deemed harmless in light of other, properly admitted evidence of the defendant’s conduct and the strength of the State’s case (including eyewitness testimony from the victim’s children).

A vigorous dissent would have applied State v. LaMere to find a structural error based on the failure to personally serve nonresponding jurors, would have excused the timing issues, and would have granted a new trial.

Case Background

Bradley Jay Hillious was charged with deliberate homicide in the death of his wife, Amanda. At trial, the State presented testimony from Amanda’s children describing the events and a medical examiner’s homicide determination (strangulation with blunt-force trauma). The State also offered Amanda’s April 2020 TOP petition and text messages to a coworker, plus testimony from Amanda’s mother.

On appeal, Hillious principally argued:

The Flathead County Clerk’s failure to certify nonresponding jurors for personal service as required by § 3-15-405, MCA, invalidated the jury panel and required a new trial.
The trial court violated the Confrontation Clause by admitting Amanda’s TOP petition and certain hearsay statements.

While the appeal was pending, he moved for a new trial based on the jury-selection irregularity. The district court denied relief and the Supreme Court affirmed.

Summary of the Opinion

Jury selection (Statutory compliance): The Court recognized a violation of § 3-15-405, MCA (no certification of nonresponders to the sheriff for personal service) but held there was nevertheless “substantial compliance,” because the record showed no effect on the randomness or objectivity of the process and no systematic exclusion of an identifiable group. The Court clarified the proper reading of LaMere: only statutory violations that materially undermine randomness or objective exclusion criteria constitute structural error with per se reversal; technical violations are subject to harmless error or no relief. Affirmed on this ground.
Timeliness and waiver: The Court enforced § 46-16-112(1), MCA (pretrial challenge to jury panel) and § 46-16-702, MCA (30-day window for new-trial motions), declining to adopt civil “means of knowledge” exceptions in criminal cases. The challenge was waived and the new-trial motion was untimely—and, in any event, not “in the interest of justice” given substantial compliance and no prejudice.
Confrontation Clause: The TOP petition was testimonial hearsay offered for its truth. Admission violated the Sixth Amendment because the defendant had no prior opportunity for cross-examination. However, the error was harmless in light of other evidence (including contemporaneous 911 calls, testimony by the victim’s mother, and strong eyewitness accounts by the victim’s children).

Analysis

1) Precedents Cited and How They Shaped the Outcome

Montana’s “substantial compliance” line: LaMere, Bearchild, Highpine

State v. LaMere (2000 MT 45): Found structural error where the clerk used telephone-only summoning and failed to personally serve nonresponders, contributing to the exclusion of persons without telephones (disproportionately poor and Native American households) and undermining random, objective selection. LaMere emphasized that where statutory noncompliance materially affects randomness or introduces subjective criteria, the violation is structural and per se reversible.
State v. Bearchild (2004 MT 355): Distinguished between “substantial” and “technical” violations. Errors that do not implicate randomness or objective exclusion are technical and subject to harmless-error analysis (e.g., premature excusal of a single prospective juror without compromising impartiality).
State v. Highpine (2000 MT 368): Post-LaMere, the Court reversed where the clerk excluded nonresponders and those without phone contact information, again stressing that self-selection out of jury service and failure to follow personal service requirements can undermine the statutory safeguard of randomness and objective criteria.

Federal law as persuasive authority under the Jury Selection and Service Act (JSSA)

United States v. Gometz (7th Cir. 1984): While a clerk may follow up on nonresponders, the JSSA was not designed to mandate a conscription-like system. Nonresponse does not itself prove exclusion of a cognizable group; concerns about resources and practicality matter.
United States v. Santos (9th Cir. 1979): No substantial failure to comply where the response rate was high and the clerk exercised discretion not to follow up when adequate responders existed.
United States v. Hernandez-Estrada (9th Cir. 2014): Even if questionnaire wording was flawed, no violation where disqualifications were based on uniform, objective criteria and not subjective gatekeeping.
United States v. Bearden (5th Cir. 1981) and United States v. Smith (5th Cir. 1979): The touchstone is whether procedures frustrate randomness or allow impermissible discrimination among cognizable groups; statistically nonrandom mechanics without discriminatory impact may not warrant reversal.

Statutory vs. constitutional fair cross-section standards

Duren v. Missouri (U.S. 1979): Constitutional fair cross-section claims require a prima facie showing that a distinctive group was underrepresented due to systematic exclusion. In Hillious, the defendant raised a statutory challenge—not a Duren constitutional claim—so the question was substantial compliance, not the Duren three-part test.

Confrontation Clause and testimonial hearsay

Crawford v. Washington and progeny (e.g., Melendez-Diaz, Bullcoming): Affidavit-like statements prepared for court use are testimonial; they may not be admitted against a defendant unless the declarant is unavailable and the defendant previously had an opportunity to cross-examine.
State v. Laird (2019 MT 198): Statements that function as substitutes for in-court testimony (even if not sworn) can be testimonial when created for prosecution purposes (e.g., autopsy findings requested by law enforcement without an ongoing emergency).
State v. Pingree (2015 MT 187): “Former testimony” exception does not apply to prior order-of-protection testimony where the defendant lacked a similar motive to cross-examine as in the subsequent criminal trial.

2) The Court’s Legal Reasoning

Substantial compliance clarified; technical vs. structural error

The Court reaffirmed that not every statutory misstep in jury procurement is structural error. Adopting the JSSA’s twin pillars, the analysis turns on whether:

Juror names are selected randomly from representative sources; and
Disqualifications, excuses, exemptions, and exclusions are made only on objective criteria.

If a violation materially affects randomness or introduces subjectivity that can skew the panel, it is a substantial noncompliance—structural error—requiring per se reversal. Otherwise, the violation is technical and subject to harmless error (or no relief).

Against this framework, the Court deemed Flathead County’s omission—failure to certify nonresponders for personal service—insufficient, without more, to show a nonrandom or subjective jury. The record showed:

Notices were mailed to randomized groups.
Nonresponders were not followed with personal service largely because of longstanding resource realities (with near-zero practical return on sheriff efforts).
No showing that nonresponse correlated with exclusion of a cognizable group or that the process permitted subjective gatekeeping or discrimination.

Crucially, the defendant presented no evidence tying nonresponse to systematic exclusion of a distinctive group or to any skewing of the panel’s composition. Thus, the omission—though a statutory violation—did not rise to substantial noncompliance.

Timeliness and waiver rigorously enforced

The Court held that jury-panel challenges must be brought pretrial under § 46-16-112(1), MCA, and that new-trial motions must be filed within 30 days of a guilty verdict under § 46-16-702(2), MCA, unless the court exercises its limited inherent power “in the interest of justice.” The Court declined to graft civil “knowledge or means of knowledge” exceptions onto criminal practice. Defense counsel have a duty to investigate jury formation before trial; failure to do so results in waiver, absent good cause truly warranting departure from the statute. Because the underlying statutory violation was technical and harmless, the Court also declined to invoke the “interest of justice” to order a new trial.

Confrontation Clause: TOP petitions are testimonial

Applying Crawford and Smith v. Arizona, the Court held Amanda’s TOP petition was created for court use (its primary purpose was to secure court relief) and was offered for its truth at trial; it therefore was testimonial hearsay. Because the defendant had no prior opportunity to cross-examine, admission violated the Confrontation Clause. The Court rejected the argument that the defendant “waived” confrontation by not cross-examining in the protection proceeding and reaffirmed that motives differ markedly between civil protection and criminal prosecution contexts (per Pingree).

Nevertheless, the Court found the error harmless. Multiple other pieces of admissible evidence established the same facts (e.g., 911 calls, supervisor testimony, and the mother’s testimony), and the children’s eyewitness accounts of the lethal assault presented overwhelming proof. Qualitatively, the petition added nothing more inflammatory than what the jury already heard from permissible sources.

3) The Dissent’s Approach

Justice Bidegaray, joined by Justice Gustafson, would have:

Applied LaMere to treat the failure to personally serve nonresponders as a substantial violation of § 3-15-405, MCA, i.e., a structural error requiring per se reversal without a separate showing of prejudice, particularly given post-LaMere decisions like Highpine emphasizing the follow-up requirement as central to randomness/objectivity.
Allowed the late challenge for “good cause” or under the court’s inherent power in the “interest of justice,” stressing that defense counsel could not have reasonably known of the systemic deviation until it surfaced in other litigation and that courts historically refrain from presuming waiver of fundamental jury-trial rights absent a knowing, intelligent relinquishment.

The dissent underscores a different reading of LaMere: once a statutory safeguard central to randomness/objectivity (such as follow-up personal service) is disregarded, the resulting process is materially compromised—and prejudice is presumed.

4) Impact and Practical Implications

A refined standard for jury-selection challenges

No per se reversal for every defect: Defendants must do more than identify a deviation; they must show how the deviation affected the randomness or introduced subjectivity into the process (or else mount a constitutional fair cross-section challenge with Duren proof).
Evidence matters: Affidavits, data, or other proof connecting a clerk’s practice to the systematic exclusion of a distinctive group will be key. Without it, violations like failure to personally serve nonresponders will likely be deemed technical.
Clerks’ practices statewide: The opinion acknowledges resource constraints and common practices across counties. Clerks should still strive to follow the statute, but the decision lessens the risk of automatic reversals absent proof of skewing the panel.

Strict timeliness and preservation

Pretrial obligation: Defense counsel must investigate jury formation and raise § 46-16-112 challenges before trial. Courts will enforce waiver, absent a strong, case-specific showing of good cause.
New-trial motions: The 30-day limit in § 46-16-702(2) will be enforced. The “interest of justice” safety valve remains, but is not a vehicle for routine circumvention—particularly where the underlying violation is technical and harmless.
Record-building: Practitioners should create a factual record (e.g., clerk testimony, sheriff data, demographic or statistical analysis) to establish substantial noncompliance if they contend the selection method skews randomness/objectivity.

Evidence law: TOP petitions and domestic-violence prosecutions

TOP petitions are testimonial hearsay when offered for truth: Prosecutors must ensure the declarant testifies and is subject to cross-examination, or find a nonhearsay purpose (if any) and craft appropriate limiting instructions. Former testimony exceptions are unlikely to apply given different motives at civil hearings.
Harmless error is still possible: Where other admissible evidence covers the same ground, erroneous admission of testimonial affidavits may be harmless. But reliance on TOP petitions for primary proof of prior abuse is risky.
Preservation via motion in limine: The Court reconfirmed that a definitive ruling on a motion in limine can preserve an objection without a redundant contemporaneous objection at trial; by contrast, where the court defers, counsel must object at trial.

Complex Concepts Simplified

Substantial compliance (jury statutes): Not every statutory misstep triggers reversal. The question is whether the misstep materially undermined randomness (who gets into the pool) or injected subjective criteria (who gets excused or excluded) that can skew the panel.
Structural error vs. trial error: Structural errors affect the framework of the trial itself (e.g., jury selection that is nonrandom or discriminatory) and require reversal without a prejudice showing. Trial errors (e.g., evidentiary mistakes) are reviewed for harmlessness.
Fair cross-section (constitutional): To prove a constitutional violation under Duren, a defendant must show a distinctive group was underrepresented due to systematic exclusion—typically requiring statistical proof.
Testimonial hearsay: Affidavit-like statements prepared for use in court are testimonial and generally inadmissible unless the declarant is unavailable and the defendant had a prior opportunity to cross-examine.
Primary purpose test: A statement is testimonial if, considering the circumstances, its primary purpose was to create an out-of-court substitute for in-court testimony.
Harmless error: Even constitutional evidentiary violations can be harmless if no reasonable possibility exists that the error contributed to the verdict, considering the record as a whole.
Waiver and timeliness: In criminal cases, challenges to jury panels must be raised pretrial; new-trial motions must meet statutory deadlines. Courts will strictly enforce these timelines absent strong, case-specific cause.

Conclusion

State v. Hillious meaningfully clarifies Montana’s approach to jury-selection statutes and evidentiary confrontation:

On jury formation, the Court harmonizes Montana law with federal JSSA principles: only statutory violations that materially compromise randomness or inject subjective decision-making are structural errors warranting per se reversal. Absent such a showing, deviations—like failure to personally serve nonresponders—are technical and do not, standing alone, invalidate convictions.
On timeliness, the Court underscores that challenges to jury panels must be made pretrial and that new-trial motions are subject to firm deadlines, rejecting attempts to import civil exceptions into criminal proceedings. Defense counsel have a proactive duty to investigate and timely object.
On confrontation, the Court confirms that victims’ TOP petitions are testimonial when offered for their truth in criminal cases and must meet Crawford’s requirements. Nevertheless, as in this case, such errors may be harmless where the record contains robust admissible proof.

Taken together, Hillious provides clear guidance for courts, clerks, prosecutors, and defense counsel. It preserves the constitutional core of randomness and objectivity in jury selection while avoiding automatic reversals for technical noncompliance, and it cautions trial courts against admitting civil protection affidavits as substantive evidence absent live testimony or a constitutionally adequate substitute. The case thus recalibrates Montana practice toward a principled, evidence-based assessment of jury-selection claims and a disciplined approach to confrontation and preservation.