§ 3.04 JURY SELECTION AND VOIR DIRE

• Jurisdiction: United States

§ 3.04. JURY SELECTION AND VOIR DIRE

The examination of prospective jurors (voir dire) is conducted to determine whether challenges are warranted. There are two types of challenges: (1) for cause⁸³ and (2) peremptory.⁸⁴ Challenges for cause are based on statutory provisions that typically contain age, citizenship, and other disqualifications such as a felony conviction or some relationship with one of the parties. The impartiality of jurors, of course, is required. Thus, evidence of personal bias is a grounds for challenge. In criminal cases it is a due process requirement.⁸⁵ A peremptory challenge can be exercised for any reason, except it may not be based on race or gender,⁸⁶ a rule that also applies in civil cases.⁸⁷

Voir dire may be conducted by the judge or the attorneys depending on the jurisdiction. In federal practice, the judge conducts voir dire.⁸⁸ The opposite is usually the case in state practice, which is why voir dire can take days in state proceedings.

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Notes:

^[83] Fed. R. Civ. P. 47(c) ("Excusing a Juror. During trial or deliberation, the court may excuse a juror for good cause.").

^[84] Fed. R. Civ. P. 47(b) ("Peremptory Challenges. The court must allow the number of peremptory challenges provided by 28 U.S.C. 1870.").

^[85] The Supreme Court held long ago that a juror will not be disqualified, despite having formed a general impression about a case, where the juror states under oath that she can fairly and impartially render a verdict according to the law. Spies v. Illinois, 123 U.S. 131 (1887). See also Smith v. Phillips, 455 U.S. 209 (1982) (challenge to juror who applied for investigator job in prosecutor's office during trial; no violation); Dennis v. United States, 339 U.S. 162 (1950) (challenge to government employees where the defendant is charged with contempt of House Committee on Un-American Activities; no violation).

^[86] See Batson v. Kentucky, 476 U.S. 79, 89 (1986) ("Although a prosecutor ordinarily is entitled to exercise peremptory challenges for any reason, . . . the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable impartially to consider the State's case against a black defendant."); J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (gender).

^[87] See Edmonson v. Leesville Concrete Co., Inc., 500 U.S. 614 (1991) (extending Batson to civil litigation).

^[88] Fed. R. Civ. P. 47(a) ("Examining...