How Lawyers Choose Juries

Criminal defendants have a Sixth Amendment right to a public trial by an impartial jury. An impartial jury must represent a fair cross-section of the community, which begins with a jury pool and then jury selection.

Criminal defendants have a Sixth Amendment right to a public trial by an impartial jury. An impartial jury must represent a fair cross-section of the community, which begins with a jury pool and then jury selection.

How Does Jury Selection Work?

Most of us have received a juror summons instructing us to show up at a designated courthouse as a potential juror. Many people get dismissed from this civic duty at a very early stage (sometimes without even setting foot in a courtroom). But, what happens to the large pool of prospective jurors (called the "venire") who are led into the courtroom?

Voir Dire

Before even going to the courthouse, the court or jury management office usually sends prospective jurors a written questionnaire. The answers help weed out people who truly cannot serve as jurors due to physical, language, or irresolvable family or other conflicts.

Then, the judge calls smaller groups of prospective jurors to the jury box for individual questioning by the attorneys (and often by the judge, too). This questioning is called "voir dire" (vwar deer), which comes from an Old French term for "to speak the truth."

During voir dire, the attorneys scrutinize each prospective juror to try to determine if she or he would be sympathetic to one side or the other. The attorneys are also trying to determine if a prospective juror harbors any biases that would prevent them from being impartial. After questioning prospective jurors, each side's attorney may challenge certain jurors using two types of challenges: "for cause" and "peremptory." By challenging a juror, the attorney is asking the judge to excuse that juror from the panel.

Juror Service During COVID-19 Pandemic

Much has changed during the coronavirus pandemic, including jury trials. Court operations vary depending on what city and state you live in. Some courts have restarted jury trials, while others continue to suspend jury trials. If you've been called to jury service, check out your court's website. You should find instructions on how jury service will work under pandemic guidelines. In some areas, the jury selection process is being conducted remotely over web-conferencing platforms.

"For Cause" Challenges

Each attorney has an unlimited number of "for cause" challenges which are, as the term suggests, based on a specified reason or "cause" to challenge the prospective juror. A prospective juror may be challenged for cause because of:

  • exposure to pretrial publicity about the case,
  • a connection with a party, an attorney, the judge, or a witness in the case
  • experience as a victim of a crime that is similar to that being tried
  • a religious prohibition on imposing a sentence or otherwise fulfilling his or her role, or
  • gender, race, or other bias.

When an attorney wants to challenge a juror for cause, they must state to the court the reason for that challenge. Even though the number of such challenges is unlimited, attorneys do not generally exercise very many because of the difficulty of accusing a prospective juror of bias or other incompetency to serve.

The remaining jurors might resent the attorney for making a for-cause challenge, and the judge may even refuse to excuse the juror (if he or she is not persuaded that cause exists). In either case, the harm to the attorney's client might outweigh the harm of keeping the person on the panel.

Peremptory Challenges

A "peremptory" challenge is one that is made without having to state a reason (without cause). Because the attorneys for each party may make peremptory challenges without justifying them, court rules limit the number of peremptory challenges to a handful for each side. In federal criminal trials, the number of peremptory challenges allowed is ten for the defendant and six for the prosecution in a felony case, 20 for each side in a death penalty case, and three for each side in a misdemeanor case (Fed. R. Crim. P. 24.) (In a civil case, federal rules allow each side three peremptory challenges. (28 U.S.C. § 1870.))

Prohibited Peremptory Challenges

Although no reason must be given for exercising a peremptory challenge, an attorney's use of the challenge cannot be motivated by bias. If, for example, a defense attorney believes the prosecution is using peremptory challenges to exclude black jurors or women jurors, the prosecutor will need to show a race- or gender-neutral reason for the challenge.

In 1986, the U.S. Supreme Court ruled that a prosecutor's peremptory challenges of African-American prospective jurors based on their race violated the prospective jurors' Equal Protection rights under the Constitution. (Batson v. Kentucky, 476 U.S. 79 (1986).) The Court reasoned that challenging a juror based on his or her race, because the attorney believes the juror could not be impartial to a defendant of the same race, assumes that people of a certain race cannot be unbiased. This assumption violated the challenged jurors' Equal Protection rights.

In 1991, the Court held that the constitutional prohibition on peremptory challenges based on race also applied in civil cases. (Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991).) In 1994, the Court held that the same constitutional reasoning barred peremptory challenges based on gender. (J.E.B. v. Alabama, 511 U.S. 127 (1994).)

In addition to voir dire, attorneys for each side may turn to certain research and survey tools to test how sympathetic the jury pool in their area would be to their client's case. Some lawyers hire jury consultants, who often have detailed demographic information for a prospective jury pool. These consultants often also attend voir dire and advise the attorney who hired them during that process.

Some attorneys present portions of their case to focus groups of randomly selected area residents to see how people respond. Others present their cases to colleagues in mock trials to obtain feedback as to how jurors might respond to their presentation of evidence and their closing arguments.

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