Chapter 11 Selecting the Jury

• Library: Mastering Voir Dire and Jury Selection: Gain an Edge in Questioning and Selecting Your Jury (ABA) (2018 Ed.)

CHAPTER 11 Selecting the Jury

Objectives

• To properly prepare the jury selection environment.
• To consider bases for challenges for cause.
• To examine the use of peremptory challenges in light of nondiscriminatory use requirements.
• To examine strategies for exercising peremptory challenges based on the structure of the jury selection process.

Contrary to what the name implies, jury selection is actually a filtering process of juror rejection. Potential jurors are removed from consideration based on the evaluations made by the respective parties and the judge. Those potential jurors who remain after this filtering process, depending on the jury selection environment, serve as the jury. Evaluation of jurors was the focus of the previous chapter. This chapter focuses on the process of removing jurors that results in the final jury. As such, consideration is given to preparing for jury selection, understanding how to prevent jurors from serving on the jury through challenges for cause and peremptory challenges, and developing strategies for exercising peremptory challenges.

Preparing for Jury Selection

Fundamental to effective jury selection is knowing exactly how jurors will be selected at trial. This requires becoming familiar before the trial begins with the jury selection procedures and traditions the trial judge employs. Not only is this information necessary to effectively operate within the system, but also it will identify procedures or areas that need to be improved, e.g., the need for individual questioning concerning specific topic areas. Addressing with the judge any areas of concern in the jury selection process prior to trial will help in improving the voir dire conditions.¹

Using a checklist approach in reviewing jury selection and voir dire procedures will ensure an understanding of what lawyers will face and what needs to be done to get the most out of voir dire. The checklist in Table 11.1 illustrates the kinds of information of interest.

TABLE 11.1 JURY SELECTION AND VOIR DIRE PROCEDURE CHECKLIST

Yes	No	Request	Topics
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	Supplemental Juror Questionnaires Has the jurisdiction used supplemental juror questionnaires in the past? Is there a policy or established practice for the use of supplemental juror questionnaires? Will supplemental juror questionnaires be used? Will jurors complete the questionnaire prior to their arrival at trial? Will jurors complete the questionnaire at trial? Will there be sufficient time to review the jurors' responses prior to examining the jurors (e.g., recess, overnight, or extended period of time)? Will lawyers be allowed to ask follow-up questions based on the jurors' answers on the questionnaire? Will the answers on the questionnaire be used as a screening device to remove certain jurors prior to voir dire (e.g., hardship or bias issues)?
[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ] [ ]	Voir Dire Questioning: Who will ask the questions? What will be the format for questioning? Will the trial judge conduct a preliminary examination of jurors? Will the trial judge conduct all questioning? Will questioning be allowed by parties? Will jurors be questioned in a group setting? Will individual questioning by lawyers (either in general or for specific content areas) be allowed? Will potential jurors be sitting in the spectators' section while awaiting their examination? Will individual questioning on potentially sensitive areas be conducted outside the presence of other jurors (e.g., in the judge's chambers)? Are procedures in place to prevent the tainting of jurors as a result of hearing comments made by other jurors (e.g., nonpanel members being absent from the courtroom or sequestering all but the individual juror being questioned)? Will the parties be allowed to make brief summaries or "mini-opening" statements before questioning jurors? Will open-ended questions be allowed? Will special topic areas (e.g., racism, pretrial publicity, and relevant experiences) be addressed?
[ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ]	Jury Selection Procedures: How will challenges for cause be addressed, and what method for exercising peremptory challenges will be used? Will challenges for cause be addressed when examining the juror in question? Will challenges for cause be addressed at the conclusion of the party's questioning of the panel? Will challenges for cause be made outside the presence of the juror in question or other jurors (e.g., at the bench)? Will there be a reasonable time period during which to consider the exercise of peremptory challenges (e.g., a brief recess or break)? Can peremptory challenges not used during the selection of the trial jury be added to those available for the selection of alternate jurors?
[ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ]	Will a struck jury method be used? Will peremptory challenges be exercised simultaneously (blind strikes)? Will each party be allowed (or required) to exercise more than one challenge at a time? Will a party be allowed to pass on the exercise of a peremptory challenge and still be able to use that challenge and others should additional rounds be necessary (i.e., can peremptory challenges be saved for later use)? Will replacement jurors for those struck take the seats of stricken jurors? Will the trial jury reflect the nonstricken jurors in order of their appearance in questioning?
[ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ]	[ ] [ ] [ ] [ ] [ ] [ ]	Will a sequential jury method be used? Will peremptory challenges be exercised on an individual or per-panel basis? Will "back strikes" be allowed (striking previously passed jurors)? Will the questioning of jurors and the exercise of peremptory challenges always follow the same party order? Will replacement jurors take the seats of stricken jurors? Will replacement jurors for those stricken for cause be seated immediately?
[ ] [ ]	[ ] [ ]	[ ] [ ]	Selection of the Foreperson Is the foreperson selected by the jurors themselves? Is the foreperson assigned the position arbitrarily (e.g., by seat position or seat number?)"

Knowing your environment: A key to preparing for jury selection

Will a juror questionnaire be used?
Who will ask the questions and under what format?
What are the procedures for raising challenges for cause and exercising peremptory challenges?
How are alternates selected?
How is the foreperson selected?

Additional questions:

What is the size of the trial jury?
What are the voting requirements for returning a verdict, e.g., unanimous agreement or certain majority decision rules?
Will certain parties share challenges and, if so, in what manner?
How will juror hardship issues be addressed, and what would be the possible grounds for hardship?
How long will the trial be expected to last?
Once the trial commences, should it be necessary to excuse jurors, in what order will alternates replace these jurors?
If a jury selection expert is used, will this person be allowed to sit with the lawyer during jury selection?

Preventing Jurors from Serving on the Jury

Armed with a thorough understanding of the jury selection environment, attention shifts to the task of removing potential jurors. Jurors can be removed in one of two ways: through challenges for cause and through peremptory challenges.

Challenges for Cause

Challenges for cause were briefly considered in Chapter 4 and Chapter 6 in the context of the style of questioning used to secure such a challenge.² Challenges for cause are those challenges within the discretion of the trial court that seek to remove potential jurors for failure to meet statutory qualifications for jury service or because of bias or prejudice. This bias or prejudice may be of an inferred or actual nature. For example, when a potential juror reports having a business relationship with one of the parties, being a blood relative of a party, or having a pecuniary interest in the outcome of the case, the court may infer that the juror could not be fair and impartial. While there are a number of circumstances from which bias may be inferred, generally speaking these "grounds" are set forth in the controlling statutes.

Bases for challenges for cause:

Failure of the juror to meet statutory requirements.
Inferred bias or prejudice on the part of the juror.
Actual bias or prejudice exhibited by the juror.

Actual bias, on the other hand, centers on statements the potential juror makes during voir dire or in some other setting (e.g., responses to questions contained in supplemental juror questionnaires or statements made to others or posted online) that reflect bias against a party or an inability of the juror to discharge his or her duty. For example, potential jurors who say that they believe the defendant is guilty or liable and that they will not base their decision on the facts and the law as presented in court will be removed for cause.

Great deference has been paid to jurors' assertions on whether they can be fair. Trial courts are reluctant to remove a potential juror who expresses a prejudicial sentiment (e.g., "I think the defendant is guilty") yet later claims to be fair and impartial. The Supreme Court³ has expressed great reluctance to second-guess the trial courts in this matter, ruling that jurors' affirmations of fairness are sufficient to render a challenge for cause unnecessary.⁴ However, some state courts have ruled that any reasonable doubt as to the impartiality of the juror should be resolved in favor of the juror's removal.⁵

Challenges for cause are unlimited in number, but they are limited in their scope. In practice, challenges for cause are granted infrequently. Success in securing these...