Jury Selection and Voir Dire

2012-07-19 07:41:42

Juries are at the foundation of the American justice system. The U.S. Constitution’s Sixth Amendment, applicable to the states since the 1968 case Duncan v. Louisiana, guarantees criminal defendants the right to be tried by an impartial jury drawn from a fair cross-section of the community. The Fifth and Fourteenth Amendments’ due process clauses are understood to similarly guarantee an impartial jury for civil litigants. The Fourteenth Amendment’s equal protection clause also grants prospective jurors the right not to be excluded from a jury on account of race or gender. State constitutions provide similar guarantees.

How then are the people who serve on juries chosen? Generally, government officials create a source list of names and addresses from publicly available records. Some of these people, usually selected randomly, are sent jury qualification questionnaires to create a list of qualified prospective jurors, sometimes referred to as the jury wheel, who meet statutory requirements such as residency and Citizenship. From the list of qualified jurors, prospective jurors, again usually selected randomly, are summoned to the courthouse to form a panel, commonly known as the venire. In voir dire, the judge or attorneys question members of the venire regarding their demographics and personal beliefs. The judge may excuse some potential jury members for cause, because of occupation, undue hardship, or because they are perceived as unable to be impartial. The judge may excuse others based on a party’s exercise of a peremptory challenge. The remaining members of the venire will be eligible to serve on the jury, sometimes referred to as the petit jury to distinguish it from a grand jury. Each stage of this process might result in disproportionate inclusion or exclusion of different categories of people, resulting in concerns that minorities, women, and the economically disadvantaged are inadequately represented on today’s juries.

Composing the Venire

The Supreme Court in Thiel v. Southern Pacific Co. observed that ‘‘[t]he American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community.’’ This right to an impartial jury drawn from a cross-section of the community was codified federally by the Jury Selection and Service Act (JSSA).

Originally, jury service was often limited to white men who were property owners or taxpayers. In the landmark case of Strauder v. West Virginia, the Supreme Court said that blacks could not be prohibited from serving on juries on account of race. In contrast, however, the Court reached out to note that states could confine jury ‘‘selection to males, to freeholders, to citizens, to persons within certain ages, or to persons having educational qualifications.’’

It was not until 1898 that the first state, Utah, permitted women to serve on a jury. The Supreme Court did not rule until 1975 in Taylor v. Louisiana that laws that discriminated against women serving on juries were unconstitutional. Louisiana had prevented women from being called for jury service unless they had affirmatively stated that they wanted to be called for service. The JSSA now expressly provides that no citizen shall be excluded from jury service in United States district courts on account of not only sex but also of race, color, religion, national origin, or economic status.

Before an impartial jury can be selected, prospective jurors must be identified and summoned to the courthouse. The process of forming a venire varies in different jurisdictions. The JSSA governs the process for litigation in federal courts.

Government officials create source lists from databases like voter registration lists, lists of actual voters, telephone books, census lists, or driver license records. Source lists should be both inclusive and representative. Voter registration lists, used federally and in most states, tend to overrepresent the relatively wealthy and underrepresent racial minorities and women compared with the general population. Some contend that this overrepresentation is desirable, because it is based on excluding those uninterested enough in their government to bother registering to vote. Jurisdictions that are not persuaded by this logic sometimes use additional lists as a supplemental source of names. ‘‘Key man’’ systems have also been used, whereby prominent members of the community choose people they know to appear on the source lists.

Officials then create a master file of names selected from the source list. In federal courts and in most state courts, names are selected randomly. As master files are only created every fourth year, the master file may not remain representative of the community, as represented by the source list, if the community is changing rapidly. Some states update as frequently as every year. Officials then determine whether people on the master file are qualified to be jurors. Federally, this is determined through jury qualification questionnaires, but states may also use personal interviews or the official’s personal knowledge.

To qualify for federal jury service, a prospective juror must be a U.S. citizen; eighteen years or older; able to speak, read, and write English; and have no prohibiting mental or physical infirmity. In addition, the prospective juror may not be a convicted felon, or even have a pending felony charge, or work in specified occupations, like the military, police, or firefighters. Prospective jurors who do not wish to serve may request exemptions from jury service on grounds such as undue hardship or extreme inconvenience. States add other criteria, like state or county residency or Citizenship, or being of good character or sound judgment. Even the objective criteria may result in the disproportionate exclusion of different groups of people. For example, people who move frequently are less likely to receive questionnaires, and thus less likely to complete them and be selected.

People drawn from the list of qualified prospective jurors, or jury wheel, are summoned to a venire at the courthouse. Federally and in most states, the people selected must be chosen randomly. Prospectivejurors are again screened for statutory qualifications. In a criminal trial a defendant may challenge a venire that fails to reflect the community under the Sixth Amendment’s fair cross-section provision. Some courts have also adopted the Sixth Amendment procedure for civil trials as well. A party challenging the composition of the venire under the JSSA must show a substantial failure to comply with the Act.

To bring a fair cross-section challenge, the Court said in Duren v. Missouri that a defendant must show the systematic exclusion of a ‘‘distinctive group’’ in the community such that their representation on venires is not ‘‘fair and reasonable’’ in relation to the number of such persons in the community. The state then has the opportunity to show that attaining a fair cross-section of the community is incompatible with a significant state interest.

Alternately a defendant may challenge the composition of a venire against the states under Fourteenth Amendment equal protection grounds and against the federal government as incorporated by the Fifth Amendment’s due process clause. The test is similar to the fair cross-section test; however, the defendant must also demonstrate that the underrepresentation of the distinctive group occurred over a significant period of time and resulted from intentional or purposeful discrimination. Underrepresentation of a group on the venire caused by group members’ failure to respond to summons or complete questionnaires is inadequate. Discriminatory purpose may be presumed, however, based on the statistical showing of underrepresentation, which shifts the burden to the state to demonstrate that there was either no discriminatory purpose or effect.

A ‘‘distinctive group’’ must be sufficiently numerous and may not be singled out on the basis of an unreasonable classification. Race, color, and gender are obvious distinctive groups, and the Supreme Court has also accepted day laborers as a distinctive group. Social, religious, political, and geographical groups may also be distinct.

Underrepresentation of a distinctive group can be determined in several ways. Absolute disparity is the difference between the percentage of the group in the community and the percentage called to serve. Therefore if women make up fifty percent of the community but only thirty percent of those called to serve, there is an absolute disparity of twenty percent. A more sophisticated but rarely used measure involves statistical decision theory, which determines the likelihood of the underrepresentation occurring by chance. The composition of the community is often determined on the basis of the U.S. census, although these data reflect the community as whole rather than the community eligible to serve as jurors. Some have also argued that minorities are underrepresented in census data.

How much underrepresentation is not ‘‘fair and reasonable’’? Although there is no absolute rule, some courts have held that a ten percent or greater absolute disparity passes the threshold. The Supreme Court in Jones v. Georgia held that a 14.7% absolute disparity was unacceptable. Arguably, a Sixth Amendment claim should require a lower threshold, because there is no requirement that the state harbor a discriminatory purpose.

Voir Dire

Voir dire, meaning ‘‘to speak the truth’’ in French, is the questioning of venire members to determine their fitness to serve on a jury. Courts administer voir dire in widely divergent ways. The judge, lawyers, or both may conduct voir dire. Proponents of judge-conducted voir dire argue that it is more efficient and that attorneys often use voir dire for inappropriate purposes, such as ingratiating themselves to a jury or to justify an improper peremptory challenge. Supporters of attorney- conducted voir dire note that attorneys will be more familiar with the case and thus better able to establish a prospective juror’s impermissible bias. Occasionally prospective jurors will complete questionnaires intended to speed up the voir dire process.

The Supreme Court recognized in Rosales-Lopez v. United States that voir dire plays a critical function in assuring an impartial jury able to follow the court’s instructions and weigh the evidence. That said, trial courts have broad discretion in determining the scope of voir dire. Voir dire must create a reasonable assurance of discovering whether a prospective juror is impartial, with reversal granted only if there was an abuse of discretion. For example, inquiries about prospective jurors’ racial prejudices are not necessarily required, even in situations where the defendant and victim are of different races. In general, questions regarding specific subjects, like racial prejudice, ethnic identity, or religious or political affiliation will only be required when they are particularly relevant to the case to be tried. One such case, Ham v. South Carolina, involved a black defendant with a beard whose defense was that he had been framed because of his race and civil rights activities. After the trial court refused to ask several questions about bias, the Supreme Court reversed Ham’s conviction on constitutional grounds. Questions about racial bias were constitutionally required; questions about prejudice against men with beards were not required.

The preceding is the constitutional minimum— states and the federal courts may require more. The Supreme Court has said, based on its power to supervise the federal courts, that questions about racial or ethnic prejudice should be allowed if the total circumstances suggest a reasonable possibility that such prejudice would affect the jury.

Challenges for Cause

Given that the Constitution requires a fair and impartial jury, a juror must be capable of objectively evaluating the evidence. The Supreme Court concluded in Reynolds v. United States that a prospective juror must be excused for cause if the prospective juror discloses an opinion likely to raise the presumption of partiality. Impartiality does not require neutrality; rather it simply requires a lack of inappropriate or overly strong biases. The trial court has broad discretion, however, in determining whether a prospective juror is or is not sufficiently impartial.

Potential jurors in capital cases are also ‘‘deathqualified.’’ Anyone with views on Capital Punishment that would prevent or substantially impair the performance of his or her duties in accordance with law is automatically excused from the jury for cause. Critics have long argued on the basis of empirical research that a death-qualified jury is much more likely to convict than one that is not death-qualified, and thus death qualification violates both the fair crosssection and impartiality requirements of the Constitution. The Supreme Court rejected this argument in Lockhart v. McCree.

The Court also explicitly held in Holland v. Illinois that a defendant has no constitutional right to a fair cross-section of the community on the actual jury, merely that the jury will be drawn from a fair crosssection.

Peremptory Challenges

A peremptory challenge is used to excuse a potential juror that a party believes may be less favorable to their position than the likely alternative. Traditionally, a party could exercise a peremptory challenge on an arbitrary or capricious basis without having to provide any reason at all. Often challenges were based on nothing more than invidious prejudice. Clarence Darrow himself advised lawyers on the use of racial and ethnic stereotypes for jury selection. Now, however, parties occasionally do have to provide reasons for their peremptory challenge.

In Swain v. Alabama the Supreme Court first held that the prosecutor’s peremptory challenge on the basis of race of a potential juror of the same race as the defendant would violate the Constitution. The Court imposed such an onerous evidentiary burden on the defendant, however, that the issue was revisited twenty-one years later in Batson v. Kentucky. In Batson, the Court established that the moving party must first present a prima facie case that the opposing party has used a peremptory challenge on the basis of race. The judge then asks the party exercising the peremptory challenge to provide neutral reasons for the challenge. If the reasons are nondiscriminatory, he judge must then decide whether the moving party has carried the burden of establishing purposeful discrimination. A nondiscriminatory reason is any reason, no matter how silly or nonsensical, not solely associated with a particular race. For example, in Hernandez v. New York, a plurality of the Court held that striking prospective Hispanic jurors because they spoke Spanish was a race-neutral reason, because some non-Hispanics also speak Spanish.

Later Supreme Court cases applied the Batson framework to civil cases and to peremptory challenges exercised by criminal defendants. Peremptory challenges are also no longer permitted on the basis of the prospective juror’s gender or ethnic origin, in addition to race. Courts have split on the question of whether parties may exercise peremptory challenges on the basis of the potential juror’s religious beliefs. These restrictions on the use of the peremptory challenge are not primarily to protect litigants’ rights, but rather the potential jurors’ equal protection rights.

The Court’s approach to the discriminatory use of the peremptory challenge has been heavily criticized. The underlying criticism is that judges are not well equipped to detect a party’s discriminatory use of the peremptory challenge. This can be because providing a nondiscriminatory reason is too easy for anyone who wishes to strike on the basis of race or gender.

Many commentators and judges have recommended abolishing or at least reconsidering the use of the peremptory challenge, including Justice Breyer in Miller-El v. Dretke and Justice Marshall in Batson. Although originally adopted from English common law, England and Wales abolished the peremptory challenge in 1989. Arguments against eliminating the peremptory challenge include the notion that participating in the selection of the jury assists with the losing party’s and the community’s acceptance of the verdict. In addition, some have asserted that the peremptory challenge is a necessary tool to prevent extremists from sitting on a jury, and thus the risk of hung juries is reduced.

Other commentators have recommended changes such as guaranteeing a minimum level of minority representation on the jury, or having parties affirmatively select jurors rather than reject them. Another suggestion is to guarantee places on the jury to people drawn from smaller areas, thereby likely increasing racial and economic diversity.


References and Further Reading

  • Abramson, Jeffrey. We the Jury: The Jury System and the Ideal of Democracy, Cambridge: Harvard University Press (2000 reissue).
  • Altschuler, Albert W., The Supreme Court and the Jury: Voir Dire, Peremptory Challenges, and the Review of Jury Verdicts, University of Chicago Law Review 56 (Winter, 1989) 153–233.
  • Forde-Mazrui, Kim, Jural Districting: Selecting Impartial Juries through Community Representation, Vanderbilt Law Review 52 (1999): 353–404.
  • Fukurai, Hiroshi, and Richard Krooth. Race in the Jury Box: Affirmative Action in Jury Selection. Albany: SUNY Press, 2003.
  • Goode, Barry P., Religion, Politics, Race, and Ethnicity: The Range and Limits of Voir Dire, Kentucky Law Journal 92 (2003–2004): 601–701.
  • Hans, Valerie P., and Neil Vidmar. Judging the Jury. New York: Plenum Publishing, 1986.
  • Howe, Scott W., Juror Neutrality or an Impartiality Array? A Structural Theory of The Impartial Jury Mandate, Notre Dame Law Review 70 (1995): 1173–1245.
  • Jonakit, Randolph N. The American Jury System. New Haven: Yale University Press, 2004.
  • Muller, Eric L., Solving the Batson Paradox: Harmless Error, Jury Representation, and the Sixth Amendment, Yale Law Journal 106 (October 1996): 93–150.
  • Page, Antony, Batson’s Blind-Spot: Unconscious Stereotyping and the Peremptory Challenge, Boston University Law Review 85 (2005) 155–263.
  • Starr, V. Hale, and Mark McCormick. Jury Selection. New York: Aspen Law and Business, 2001.

Cases and Statutes Cited

  • Batson v. Kentucky, 476 U.S. 79 (1986)
  • Duncan v. Louisiana, 391 U.S. 145, 149 (1968)
  • Duren v. Missouri, 439 U.S. 357, 364 (1979)
  • Ham v. South Carolina, 409 U.S. 524 (1973)
  • Hernandez v. New York,500 U.S. 352 (1991)
  • Holland v. Illinois, 493 U.S. 474 (1990)
  • J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)
  • Jones v. Georgia, 389 U.S. 24 (1967)
  • Lockhart v. McCree, 476 U.S. 162 (1986). Miller-El v. Dretke, 545 U.S. ___ , 125 S.Ct. 2317(2005) Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981)
  • Reynolds v. United States, 98 U.S. 145 (1878)
  • Strauder v. West Virginia, 100 U.S. 303 (1880)
  • Swain v. Alabama, 380 U.S. 202 (1965)
  • Taylor v. Louisiana, 419 U.S. 522, 528 (1975)
  • Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)
  • Jury Selection and Service Act, Pub. L. No. 90-274, } 101, 82 Stat. 54 (1968) (codified at 28 U.S.C. }} 1861-1869 (1994))
See also Batson v. Kentucky, 476 U.S. 79 (1986); Darrow, Clarence; Duncan v. Louisiana, 391 U.S. 145 (1968); Grand Jury; Holland v. Illinois, 493 U.S. 474 (1990); Jury Trial; Jury Trials and Race; Lockhart v. McCree, 476 U.S. 162 (1986); Reynolds v. United States, 98 U.S. 145 (1878); Rosales-Lopez v. United States, 451 U.S. 182 (1981); Swain v. Alabama, 380 U.S. 202 (1965); Taylor v. Louisiana, 419 U.S. 522 (1975)