How Lawyers Choose Juries

Lawyers look for jurors who will be fair and impartial. Paradoxically, they also look for people who are likely to be sympathetic to their side, and try to avoid those who may not be.

A group of solemn people sit in rows of chairs on one side of a courtroom silently watching as the lawyers question witnesses and the judge rules on objections. A familiar sight but unless you have been a juror, the process of how that group got there may be a mystery. This article discusses how lawyers choose juries for trial.

Voir Dire

We have all received the (often dreaded) juror summons instructing us to show up at a designated courthouse as a potential juror. Most of us 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?

The first thing that usually happens is a series of questions (or a written questionnaire) from the court to weed out people who truly cannot serve 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 is called “voir dire,” which comes from an Old French term for “to speak the truth.” During voir dire, the attorneys are scrutinizing each prospective juror to try to determine if she or he would be sympathetic to one side or the other. That is one purpose of voir dire.

Another purpose of voir dire, the one that serves the public interest in fair trials, is to determine if a prospective juror harbors any biases that would prevent them from being impartial. Both the criminal and civil law systems in the U.S. depend upon impartial juries to hear cases in order to ensure fair trials. A defendant in a criminal case has a constitutional right to a fair trial. (U.S. Const. amend. VI.)

After questioning prospective jurors, each side’s attorney may challenge certain jurors using two types of challenges: “for cause;” and, “peremptory.”

“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 pre-trial 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, she 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 (and frequently none at all) because of the difficulty of accusing a prospective juror of bias or other incompetency to serve. The remaining jurors may 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), which might harm the attorney’s client more than just silently keeping the person on the panel in the first place.

Peremptory challenges

A “peremptory” challenge is one that is made without having to state a reason. 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. Under the federal rules, each side is allowed three peremptory challenges in a civil case (28 USC 1870), 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)).

Although no reason must be given for exercising a peremptory challenge, certain reasons are prohibited if it appears that they motivated a challenge.

Prohibited peremptory challenges

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).)

External Tools for Selection

In addition to voir dire (and often before that stage of trial), 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 use focus groups of randomly selected area residents to present portions of their case to in order 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.

Some of these tools are very expensive and that means only a party with money can take advantage of them. This is but one of the many subtle ways that the playing field in both civil and criminal trials is not level.

Jury Duty is Also a Right

As you can see, serving on a jury is not only a duty you must fulfill, it is an honor that cannot be denied to you for unconstitutional reasons. It might be a big inconvenience, but if you were on trial, you would be thankful for a jury of unbiased, attentive people.

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