Jury Selection

BIBLIOGRAPHY

The jury system is the cornerstone of the common law legal system, the legal system shared by England and most of its former colonies. The common law legal system is premised on the notion that legal norms develop through common practice rather than formal rules; juries—groups of people lacking formal legal training who are brought in to adjudicate disputes—provide the perspective of the community, a common rather than formal perspective. Because juries are essential to the common law legal tradition, their selection and composition affect the very heart of common law systems of justice. Jury selection systems vary from jurisdiction to jurisdiction, but the goal of all such systems is to convene juries that are representative of the broader community and that are unbiased.

Jury selection begins with the process of identifying those people who are eligible to serve. A list of potential jurors may be constructed from voter registration lists, drivers’ license and state identification lists, or other official rosters of citizens. The goal of a representative jury is best achieved with a comprehensive list of potential jurors; using voter registration lists as a source of potential jurors, for example, may result in a jury pool that underrepresents certain demographic groups, such as the poor and young adults.

From the list of potential jurors, a jury pool is randomly selected. In smaller jurisdictions, where the need for a jury is rare, a jury pool may only be selected when the need arises. In most jurisdictions, however, jury pools are convened as a regular matter. From a single jury pool, multiple juries will be selected over the course of the pool’s service (which may range from a single day to several weeks to several months).

Individuals who receive a summons to appear for jury duty—to be a part of the jury pool—are generally asked to complete a short list of questions. Based on their answers, jurors may be disqualified—deemed ineligible to serve. Citizens may be disqualified for jury service because of a lack of language proficiency, mental or emotional disturbance, or a criminal record or pending criminal charges. Historically, in the United States, citizens were disqualified from jury service on the basis or their race or gender, but the U.S. Supreme Court has determined that such disqualifications are inconsistent with the equal protection clause of the Fourteenth Amendment to the Constitution.

Some potential jurors, while not disqualified, are nevertheless excused from jury service. In other words, while they may serve, they are not legally obligated to serve. Members of certain professions—doctors, teachers, lawyers, military personnel, and small business owners—as well as individuals whose physical condition would make jury service difficult, may be excused.

When a particular jury is needed for a particular case, names are randomly selected from the jury pool. These individuals—called venirepersons —are subjected to more detailed questioning by the attorneys and judge involved with the case. This questioning process is known as voir dire. The purpose of voir dire is to identify particular biases a juror might have that would affect his or her ability to be objective in resolving the case: knowledge of the parties to the case, witnesses, or attorneys; exposure to prejudicial media coverage about the case; past experiences that might color the juror’s judgment; or even biases against certain groups of people.

On the basis of the venirepersons’ answers to questions during voir dire, attorneys may challenge their ability to serve on the case. Specifically, attorneys may use two types of challenges: challenges for cause and peremptory challenges. In a challenge for cause, the attorney requests that the judge strike the potential juror because of some obvious bias. For example, in cases involving the death penalty in the United States, the prosecuting authority is entitled to a jury of individuals who are not opposed to capital punishment; such a jury is said to be death-qualified. If, during the course of voir dire, a venireperson expressed opposition to the death penalty, the prosecuting attorney could challenge that venireperson for cause.

Attorneys can use peremptory challenges to strike jurors who are not clearly biased. Peremptory challenges give attorneys the opportunity to strike jurors whose answers do not necessarily reflect bias but whose demeanor or background raise concerns for the attorney. Attorneys use questions about the types of television shows jurors watch, the books they read, their hobbies, and even the bumper stickers on their cars to develop profiles of potential jurors and to expose unspoken biases. While there is no limit to the number of potential jurors who may be struck for cause, each party to a case has a fixed number of peremptory challenges and, once they are exhausted, may not exercise any more.

Peremptory challenges are controversial. In England, peremptory challenges are not allowed. In the United States, peremptory challenges are allowed, but they cannot be used to eliminate jurors on the basis of race or gender, and there is considerable variation in how the process is implemented. Specifically, some jurisdictions use a sequential system, while others use what is called a struck system.

In a sequential system, the number of venirepersons empanelled equals the number of individuals needed for the jury, so that when a party uses a peremptory challenge to strike a venireperson, that party has no idea what the replacement venireperson will be like. A party may use its last peremptory challenge to strike a venireperson only to find that the replacement venireperson is even less desirable. In a struck system, however, the number of venirepersons chosen equals the number of jurors required plus the total number of peremptory challenges the parties may exercise. Thus, a party may use its peremptory challenges to eliminate the least desirable of a known set of potential jurors.

Once both parties have passed the jury panel for cause—concluded that everyone who remains is capable of serving impartially—and have exercised all of the peremptory challenges they choose to use, the remaining venirepersons are issued an oath of service and become the jury. While no jury is perfectly representative and some personal bias is unavoidable, the iterative process of random selection and careful screening increase the likelihood of a jury that reflects community values and common sense in legal decision making.

SEE ALSO Judiciary; Jurors, Death-Qualified