VIII. Challenging Jurors

• Library: The Rights of the Accused under the Sixth Amendment (ABA) (2016 Ed.)

VIII. Challenging JurorsA. Information Given to the Lawyers, Understanding Voir Dire

Voir dire (which is derived from the French for "to speak the truth") is the process by which an impartial jury is selected from a larger group of prospective jurors. Attorneys can prepare questions to ask the prospective jurors during voir dire, based on information collected from juror questionnaires and made available earlier to the prosecution and the defense. The information contained in juror questionnaires generally includes a range of matters such as a person's name, age, occupation, education, employer, recent places of residence, homeowner status, marital status, age and educational background of spouse and children, union membership, military service, hobbies, previous service as a juror, literacy level, and medical conditions that would prevent the juror from sitting through a trial.¹⁵¹

B. Process of Voir Dire

Federal Criminal Procedural Rule 24 governs voir dire in the federal courts, and states have similar rules.¹⁵² Prospective jurors may be questioned individually and/or as a group.¹⁵³ Voir dire can occur through oral and/or written questions,¹⁵⁴ although a local rule may more strictly define the question form that counsel must use. Most jurisdictions give the trial judge discretion as to whether the court will conduct voir dire, or allow counsel to do so.¹⁵⁵

Although the process of voir dire varies considerably, the subject matters of voir dire questions are more consistent. Usually, the questions inquire into individuals' awareness of pretrial publicity, to determine whether a prospective juror has developed a preconceived notion about the guilt or innocence of the defendant.¹⁵⁶ If someone has developed such a preconceived notion that would interfere with the ability to arrive at a verdict based solely on the evidence presented at the trial, then that person will be dismissed for cause.¹⁵⁷ Additionally, prospective jurors may be asked about whether they have a relationship with any participant or party,¹⁵⁸ and whether they have a bias relating to the type of defendant or the type of crime.¹⁵⁹ There may also be inquiry into each person's experience with—or opinion of—the relevant law, or with the criminal justice system.¹⁶⁰

Very specific voir dire questions are required in death penalty cases because in such cases, the court cannot designate as a juror anyone who would never impose the death penalty or anyone who would always do so.¹⁶¹ In noncapital cases, the trial judge has considerable authority to structure how potential jurors are to be questioned, and by whom. But the court is not necessarily required to ask every useful question. "To be constitutionally compelled . . . it is not enough that [voir dire] questions might be helpful. Rather, the trial court's failure to ask these questions must render the defendant's trial fundamentally unfair."¹⁶² And, of course, potential jurors have a duty to honestly answer the questions asked of them. An individual who fails to truthfully answer voir dire questions may be charged with contempt or even perjury.¹⁶³

C. Challenges for Cause

In all criminal trials the defendant has the right to a fair and impartial trier of fact.¹⁶⁴ If the defense or the prosecution can establish that an individual cannot serve as an unbiased and capable juror, that person must be dismissed for cause. In the federal and state courts, there is no limitation on the number of prospective jurors who may be challenged for cause. However, the moving party must specifically allege the ground for the concern that a potential juror is not qualified to serve.¹⁶⁵ Challenges for cause may include the potential juror's appearance and expressions,¹⁶⁶ an inability to be unbiased due to prior experience in a similar matter,¹⁶⁷ any obvious prejudice, or any other inability to serve as stated by the potential juror or as a reasonable inference from information provided by the potential juror. As with peremptory challenges, the failure to challenge for cause before the trial begins will result in a waiver of the challenge, unless facts develop during the trial that reveal that the juror should be dismissed.¹⁶⁸

D. Peremptory Challenge

In the federal and state courts, prosecutors and defense attorneys can use peremptory challenges to dismiss potential jurors without cause and without disclosure of their strategy or rationale.¹⁶⁹ There is no constitutional mandate for peremptory challenges; they "are permitted only when the government, by statute or decisional law, deems it appropriate to allow parties to exclude a given number of people who otherwise would satisfy the requirements for service on the petit jury."¹⁷⁰

The number of peremptory challenges a party is authorized to use is generally determined by rule or statute. Under the Federal Rules of Criminal Procedure, for minor crimes, each side receives three peremptory challenges.¹⁷¹ When a defendant is charged with a crime punishable by imprisonment of more than one year, the government is granted six peremptory challenges and the defendant is given ten peremptory challenges.¹⁷² If the government is seeking the death penalty, each side has twenty peremptory challenges.¹⁷³ Most state rules are similar. For instance, Iowa allows each side four peremptory challenges for minor crimes, six for more serious crimes, and ten in a first-degree murder trial.¹⁷⁴ When there is more than one defendant at a joint trial, the court may grant additional peremptory challenges and these challenges may be exercised separately or jointly.¹⁷⁵ As a matter of procedure, in both the federal and state courts, a juror must be challenged before he or she is sworn in, otherwise the right is considered to have been waived.¹⁷⁶

Historically, peremptory challenges were not subject to judicial review. That changed in 1986. In response to growing concerns that prosecutors were using peremptory challenges in a racially discriminatory manner, the Supreme Court acted in Batson v. Kentucky.¹⁷⁷ In Batson, the justices ruled that race could not be used overtly or covertly by prosecutors to support a peremptory challenge.

Racial discrimination in the selection of jurors harms not only the accused whose life or liberty they are summoned to try. Competence to serve as a juror ultimately depends on an assessment of individual qualifications and ability impartially to consider evidence presented at a trial. A person's race simply "is unrelated to his fitness as a juror." . . . [B]y denying a person participation in jury service on account of his race, the State unconstitutionally discriminated against the excluded juror. . . .
The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community. Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice.¹⁷⁸

Specifically, Batson held that, if a defendant wished to challenge the prosecutor's use of a peremptory strike as race-based, a three-step inquiry was required. First, the trial court must determine whether the defendant had made a prima facie showing that the prosecutor's peremptory challenge had been based on the prospective juror's race. Second, if the showing was made, the burden shifted to the prosecutor to present a race-neutral explanation for striking the juror in question. Third, the court then determines whether the defendant had met her burden of proving purposeful discrimination.¹⁷⁹

In 1992, the prohibition against using race-based...