Chapter 13 Jury De-selection

• Library: How to Try a Murder Case: Pretrial and Trial Guidelines for Prosecution and Defense (ABA) (2011 Ed.)

CHAPTER 13 Jury De-selection

Why is this chapter titled "Jury De-selection?" That is because we really do not get to select juries. A group of people appear at the venire and they may well end up on the jury unless one gets them de-selected. So, de-selection is what really happens when one is "picking" a jury.

Jury selection by skilled trial lawyers often begins with the premise that there are factors in a person's background that will predispose them to one side or the other in the decision-making process. Jury questionnaires and voir dire are tools that can be used to discover these biases, perceptions, and predispositions. The premise is that people have backgrounds that can predispose them toward being receptive to one side or the other. It is this premise that has resulted in the growth of "scientific jury selection" experts who, for a fee, are willing to help attorneys pick a receptive jury. Whether the premise is true or not, one can easily agree that people have biases and that—like it or not—there is sometimes a basis in fact for most stereotypes.¹ For instance, a person who is adamantly opposed to the death penalty is highly unlikely to vote for a penalty of death. There have been few studies on whether the exercise of peremptory challenges has a real impact upon jury verdicts. One study, conducted some years ago, found that in seven of 12 cases studied, the peremptory challenges had little or minimal effect upon the jury's verdict. However, in the other five cases the challenges did make the probability of a guilty verdict less likely.²

Jury selection in a murder case is much like jury selection in any criminal case—unless the murder case is a death penalty case, which will be discussed below.³ The practice of voir dire varies from one jurisdiction to another. Whether the judge conducts voir dire or the attorneys are allowed to conduct it, this is a prime opportunity to learn about the individuals who make up the venire. In major trials, such as murder trials, many jurisdictions will permit jury (venire) questionnaires. A sample questionnaire for a death penalty murder case is included as Appendix F of this book.

Death Penalty and Witherspoon Excludables

In 1968, in Witherspoon v. Illinois,⁴ the Court held that the state could not exclude from a jury in a capital case all jurors who are opposed to capital punishment and all jurors with conscientious scruples against the death penalty. The Court observed, however, that potential jurors who say that they could never vote to impose the death penalty may be challenged by the prosecution for cause. The Court noted:

The issue before us is a narrow one. It does not involve the right of the prosecution to challenge for cause those prospective jurors who state that their reservations about capital punishment would prevent them from making an impartial decision as to the defendant's guilt. Nor does it involve the State's assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty or that they would refuse even to consider its imposition in the case before them. For the State of Illinois did not stop there, but authorized the prosecution to exclude as well all who said that they were opposed to capital punishment and all who indicated that they had conscientious scruples against inflicting it. . . . If the State had excluded only those prospective jurors who stated in advance of trial that they would not even consider returning a verdict of death, it could argue that the resulting jury was simply "neutral" with respect to penalty. But when it swept from the jury all who expressed conscientious or religious scruples against capital punishment and all who opposed it in principle, the State crossed the line of neutrality. In its quest for a jury capable of imposing the death penalty, the State produced a jury uncommonly willing to condemn a man to die.⁵

This case produced the doctrine that potential jurors who say that they could never vote to impose the death penalty may be challenged by the prosecution for cause. Such potential jurors are referred to as "Witherspoon excludables." Thereafter, the U.S. Supreme Court was faced with the argument that a jury that has Witherspoon excludables removed is a jury more likely to convict—and that...