5.5 How Jury Selection Works

• Library: Federal Civil Practice in Virginia (Virginia CLE) (2023 Ed.)

5.5 HOW JURY SELECTION WORKS

5.501 Jury Voir Dire.

A. In General.

Fed. R. Civ. P. 47(a) grants the district court the discretion to conduct the voir dire examination or permit the attorneys to conduct a voir dire of prospective jurors.

B. Practical Considerations.

Counsel should consider the following questions regarding jury voir dire:

1. What jury voir dire is permitted and who conducts it under the local rules?

2. Must voir dire questions be submitted in advance? In the Eastern District, yes. ¹³⁷¹ In the Western District, the court typically does not require submission of voir dire questions in advance. Judge Moon's standard Scheduling Order, however, does require the submission of "any special voir dire questions" in the joint pretrial order seven days prior to trial.

3. What are the voir dire practices and restrictions of each judge? In the Eastern District of Virginia, all voir dire is conducted by the judge. In the Western District of Virginia, attorneys may conduct voir dire, and the judges typically allow wide latitude.

5.502 Jury Selection Process.

A. Eastern District.

1. Jury selection in the Eastern District is very fast and will usually only take about two hours.

2. The parties will receive information on the jury panel about one week before trial. This allows counsel to research the potential jurors, but "no juror shall be approached, either directly or through any member of his or her immediate family, in an effort to secure information concerning such juror." ¹³⁷²

3. Once voir dire is completed and the court excuses any potential jurors, the initial jurors will be picked by random.

4. Once the initial jurors are in the jury box, the parties may exercise any peremptory challenges. But note that once a juror is passed over (i.e., no objection is made to that specific juror), neither party may go back and strike that juror on a subsequent round. In other words, subsequent peremptory challenge rounds are only for new jurors who are placed in the box to replace a stricken juror.

5. A federal civil jury must have at least six members. ¹³⁷³ However, most judges will place seven or eight jurors in the box in case a juror becomes unable to serve during trial. There are no alternate jurors in federal court; "each juror must participate in the verdict unless excused." ¹³⁷⁴

6. After the jury returns a verdict, counsel may not communicate with any juror about the verdict without leave of court. ¹³⁷⁵

B. Western District.

1. Jury selection in the Western District is usually also relatively fast.

2. Information on potential jurors is available, upon request, from the clerk usually a week before trial. It typically includes the potential jury member's name, address, year of birth, race, name of employer, whether the juror attended school beyond high school, and marital status, spouse's occupation, and number of children.

3. Jurors are selected randomly for service and seated in the box. Particular voir dire and peremptory practices vary by judge.

4. In the Western District, no local rule prohibits contacting jurors after a verdict, but some judges will order attorneys not to do so until the jurors' term expires. The recommended practice is to seek leave prior to contacting jurors.

5.503 Jury Selection: Restrictions on Peremptory Challenges.

A. Applicable Rule and Statute.

Fed. R. Civ. P. 47(b) permits parties to exercise the number of peremptory challenges authorized by 28 U.S.C. § 1870. In civil cases, each side may exercise three peremptory challenges; more may be allowed in cases with multiple plaintiffs or defendants. But, typically, each "side" is allowed three strikes, regardless of the number of plaintiffs or defendants. ¹³⁷⁶

B. Request for Additional Peremptory Challenges.

E.D. Va. Civ. R. 47(B) provides that a party seeking additional peremptory challenges must file a motion stating that request at least 21 days in advance of the trial date. Untimely motions will not be entertained. No parallel local rule exists in the Western District.

C. Constitutional Restrictions on Peremptory Challenges.

In Batson v. Kentucky, ¹³⁷⁷ the United States Supreme Court recognized constitutional limitations on the use of peremptory challenges against prospective jurors in criminal trials based only on the juror's race. The Court has extended the protections to civil cases ¹³⁷⁸ and recognized gender as an additional impermissible basis for challenge. ¹³⁷⁹

The following is a list of classes to which Batson has not been extended, to date:

1. Religious affiliation;

2. Ethnic or national origin;

3. Marital status;

4. Age;

5. Disability;

6. Wealth or socioeconomic status; and

7. Sexual orientation.

D. Requirements of a Batson Inquiry.

The opponent of a peremptory challenge must establish a prima facie case of racial or gender discrimination. ¹³⁸⁰

1. Procedure.

Counsel must make his...