By R. Davis

Understanding how to select a jury in a criminal case is essential to ensuring the criminal defendant receives a fair trial. A jury is a group of impartial individuals who are responsible for evaluating the evidence presented during a jury trial and determining the guilt or innocence of the accused. The process of jury selection, also known as voir dire, is a delicate art that aims to assemble a diverse, unbiased, and competent jury panel.

In this blog post, we will delve into the essential steps and considerations involved in selecting a jury for a criminal trial.

Understanding the Jury Selection Process

Before we delve into the nitty-gritty of selecting a jury, it is essential to grasp the jury selection process. The process typically involves three main stages: summoning potential jurors, conducting voir dire, and exercising challenges.

1. Summoning Potential Jurors: A pool of potential jurors is summoned through a random selection process, typically from voter registration lists or driver’s license records. The court sends out juror summons, requiring the recipients to report to the court for jury duty.
2. Conducting Voir Dire: Voir dire is the examination of potential jurors to assess their qualifications and potential biases. Attorneys for both the prosecution and defense have the opportunity to question the potential jurors to determine if they are suitable for the case.
3. Exercising Challenges: After voir dire, both sides can exercise challenges to dismiss potential jurors for specific reasons. There are two main types of challenges: “for cause” challenges, where a potential juror is removed due to a demonstrated bias or inability to serve impartially, and “peremptory” challenges, which allow the removal of a potential juror without stating a specific reason, although they cannot be based on discriminatory factors.

Establishing Jury Selection Objectives

Before diving into the jury selection process, legal teams must establish their objectives for selecting a jury. These objectives can vary based on the nature of the case and its specific circumstances. Common objectives include:

• Education: I like to prepare the jury with the most damaging evidence they will hear before my opposition does it for me. This removes any forthcoming surprise and allows me to find uncertainty in juror impartiality before it’s to late.
• Impartiality: Ensuring that jurors do not have preconceived notions or biases that may affect their ability to remain impartial during the trial.
• Understanding: Seeking jurors who can comprehend complex legal concepts and evidence, as well as follow the court’s instructions.
• Diversity: Striving for a diverse pool that represents a cross-section of the community to prevent potential biases and promote fairness.
• Sympathy: Identifying potential jurors who may sympathize with the defendant or the prosecution’s case.

Preparing for Voir Dire

Effective jury selection requires thorough preparation. Both the prosecution and defense must understand the case details and consider potential biases that could arise. This preparation will help formulate relevant questions and identify potential red flags during voir dire. Some ways to prepare are:

Using Written Questionnaires: If the court will permit, consider creating written questionnaires for potential jurors to gather beneficial information about their backgrounds, experiences, and potential biases. This information can help identify potential juror biases before voir dire.

Written questionnaires can also permit extremely biased individuals to be removed “for cause” before sharing their opinions in the presence of other potential jurors. One person verbally sharing a negative opinion of the client or case, in the presence of other potential jurors, creates a possibility to contaminate the entire jury pool. I prefer avoiding that catastrophe whenever possible.

Research Jurors: In some cases, publicly available information on potential jurors may be useful in understanding their backgrounds and potential biases. Search for information on social media websites and within news stories.

Conducting Voir Dire

During the voir dire process, attorneys have the opportunity to question potential jurors. The goal is to identify biases, prejudices, and other factors that could impact a juror’s ability to remain impartial.

• Open-Ended Questions: Attorneys should start with open ended questions to encourage potential jurors to express their opinions and feelings without leading them to a specific answer.
• Follow-up Questions: Based on the responses received, attorneys can follow up with additional questions to explore potential biases in more depth.
• Body Language: Observing body language during voir dire can also offer valuable insights into potential juror’s attitudes and feelings. Notice if direct eye contact is avoided or disinterest in the case is present.

Identifying Biases and Challenges

Throughout the voir dire process, attorneys must identify potential biases and determine whether to exercise “for cause” challenges or “peremptory challenges.”

“For Cause” Challenges: Attorneys (or the judge) may seek to remove potential jurors for specific reasons, such as a demonstrated bias, a vocalized inability to be impartial, or a close personal connection to the case.

“Peremptory” Challenges: These challenges allow attorneys to remove potential jurors without stating a specific reason, but they cannot be used to discriminate against jurors based on race, gender, or other protected characteristics.

In Batson v. Kentucky, 106 S.Ct. 1712 (1986), the Supreme Court held using a peremptory challenge to exclude a potential juror based solely on race, or simply because they are a member of a protected class, is forbidden.

If a party wishes to allege some type of discrimination is occurring during the jury selection process, the complaining party must establish a prima facie case of discrimination, including whether there has been a pattern of strikes against members of a protected class.

Building a Cohesive Jury

Once the voir dire process is complete, the final jury panel is selected. The composition of the final jury is crucial. Both the prosecution and defense will be aiming to build a cohesive jury that supports their respective cases.

In complex cases, legal teams may work with jury consultants who specialize in analyzing potential jurors’ behavior and attitudes to assist in selecting a favorable jury. This can be an additional expense for the defense, but worth the investment when funding is available.

Strive for diversity in a jury panel. If the defendant was a white collar employee, try to have a white collar juror. If medical issues will arise in trial, pursue a juror from the health care field. Know who your jurors are and speak directly to them in key moments. Form a connection with them in opening and closing statements. Pursuing this diversity can help ensure a broader range of perspectives and minimize potential biases.

My Final Thoughts

The process of selecting a jury for a criminal trial is an intricate task that requires careful planning, strategic questioning, and age deep understanding of human behavior. The goal is to assemble an impartial, diverse, and competent jury that can fairly assess the evidence and render a just verdict. Effective jury selection is a critical component of upholding the principles of justice and ensuring the integrity of the criminal justice system.

Within The Colossal Book of Criminal Citations readers will find sample voir dire questions and a written questionnaire to assist with the jury selection process.

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