Jury selection

Eliciting information from prospective jurors

In order for parties to make challenges for cause and peremptory challenges, they must learn as much as they feasibly can about each venireperson. There are two ways of gathering such information: by written questionnaires completed by each venireperson and by oral questioning of the venirepersons, a process called “voir dire.”

1. Through written questionnaires

Obtaining information from venirepersons through their written answers to questionnaires has several advantages over oral questioning:

• Usually more information can be obtained.
• Questionnaires are efficient because the venirepersons can fill them out without judicial supervision while the judge handles other matters.
• Questionnaires are more respectful of the venireperson’s privacy than having to answer questions in public in court.
• Venirepersons may be more forthright and complete in their answers than when they have to answer questions in public in court.
• Answers to questionnaires will not be affected by the answers other venirepersons give to questions in public in court.

Courts are increasingly using questionnaires in addition to oral questioning. Questionnaires fall into two categories:

• Generic questionnaires created by the court for use in every case—these ask for very basic information such as name, address, occupation, marital status, etc. For some samples of such questionnaires click here.
• Case-specific supplementary questionnaires created by the parties and approved by the judge. For samples of such questionnaires, click here.
   

2.  Through oral questioning ("voir dire")

Voir dire is the name given to the process whereby the lawyers and/or the judge orally question the venirepersons in order for the parties to gain the information needed to decide whether to make for-cause or peremptory challenges to venirepersons.

The formats for voir dire vary from court-to-court and from case-to-case even within the same court. One variation is whether the lawyers or the judge primarily asks the questions. In most federal district courts, for example, the lawyers must submit voir dire questions to the judge, who then does the bulk of the voir dire. In many state courts, the attorneys themselves ask the questions directly to the venirepersons. Another variation is whether questions are addressed to the venire panel as a whole, or to individual venirepersons—a typical voir dire involves both, with questions to the panel and follow-up questions individually to a venireperson who responds to the question directed at the panel. Yet a third variation, most often used in cases that have generated significant publicity, is for the voir dire to be conducted individually in the judge’s chambers, rather than in open court.

While the ostensible purpose of voir dire is to get information for exercising challenges, attorneys often attempt to accomplish additional goals, including: establishing rapport with the panel members, introducing the venirepersons to the client’s version of the case, and obtaining pledges from the venirepersons, for example, “If the evidence leaves you with a reasonable doubt about my client’s guilt, do you promise to uphold the law by voting ‘Not Guilty?’.”

The literature for attorneys about voir dire is among the most extensive available for any aspect of trial practice. For a listing of law periodical articles on this topic since 2000, click here.


Challenges for cause

The Sixth Amendment to the U.S. Constitution guarantees that "[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury." And beyond this provision of the Constitution, the law gives the right to an impartial jury—which equates to impartial jurors—not just to criminal defendants, but to all parties in all cases.

Each party has an unlimited number of challenges for cause.

A venireperson is not impartial if he/she has characteristics that will likely make it difficult for him/her to judge the particular case fairly and without bias. A venireperson who is not impartial may be excused by the judge on the judge’s own initiative. If the judge does not do so, either party may challenge the venireperson “for cause.” The judge rules on this challenge. If the judge grants the challenge, the venireperson is dismissed from the voir dire panel. If the judge denies the challenge, the venireperson remains on the panel.

There are many bases that will support a for-cause challenge, but most involve one of three general principles, that is, that the venireperson:

• Knows one of the parties, the lawyers, the judge, or the witnesses.
   
• Expresses an opinion in the jury questionnaire or during voir dire that indicates the venireperson cannot set aside some preconceived notion that will interfere with his/her ability to fairly judge the case. For example, in a death penalty jurisdiction a venireperson in a death penalty case who states that he/she would always impose a death sentence for murder would be challengeable for cause because not all murders should be punished by death under the law. Equally, a venireperson who was so opposed to the death penalty that he/she would never vote to impose it would likewise be challengeable for cause because the law says the death penalty is an appropriate punishment in some cases.
   
• Has life experiences from which bias can be inferred. For example, a member of the Ku Klux Klan would be challengeable for cause in a case where a black defendant is seeking redress under the Civil Rights Act

An opposing party does not usually contest a for-cause challenge based on the venireperson’s knowledge of someone connected with the case. But an opposing party often does contest the granting of for-cause challenges based on the venireperson’s opinions or life experiences. The opposing party will try to “rehabilitate” the venireperson through questioning designed to demonstrate that the venireperson can fairly judge the case, despite the opinion or life experience. The point of contesting a for-cause challenge is not necessarily a belief that the venireperson will end up as a juror on the case; rather, if the judge denies the for-cause challenge, the party who lodged it will probably be forced to use one of their limited number of peremptory challenges on that venireperson.

Peremptory challenges

A peremptory challenge to a venireperson is one for which a party need not give a reason, and that the judge cannot prevent the party from exercising (unless the judge believes the party is attempting to exercise the challenge solely on an unconstitutionally discriminatory basis—race, ethnicity, or gender in all jurisdictions, and a few other bases in some jurisdictions. For a further discussion of the constitutional limitations on exercising peremptories, click here.)

Each party has a prescribed number of peremptory challenges. The number varies from jurisdiction to jurisdiction, and for different kinds of cases within the same jurisdiction, and sometimes between the prosecution and defense in criminal cases. For example, in federal court, 28 U.S.C. 1870 gives each party 3 peremptory challenges in civil cases and criminal cases where the potential punishment is a year or less; 6 to the prosecution and 10 to the defense in criminal cases where the potential punishment is greater than a year, and 20 for each side in cases where the potential punishment is a death sentence.

Processes for exercising peremptory challenges vary from jurisdiction to jurisdiction, but always take one of two basic forms: the “sequential” (also known as the “seat and strike”) system and the “struck” system. Sequential systems are more common, although the American Bar Association recommends the struck system.

• In the sequential system, the number of venirepersons seated in the jury box is the same number as required for the trial. Each venireperson is questioned, and each party must decide whether to challenge that venireperson at the end of the questioning of each individual. If a challenge is successfully made, another venireperson is seated. This process continues until no party has any challenges left.
   
• In the struck system, the number of venirepersons is equal to the number of jurors needed plus the total of all parties’ peremptory challenges. The venirepersons are all questioned, and then the parties exercise their peremptory challenges at the end of the questioning of all the venirepersons, leaving the correct number of jurors for the case.
   

Some commentators claim that peremptory challenges should be abolished in the United States as they have been in Great Britain and several other countries in the common law legal tradition. Other people—particularly most trial lawyers—strongly support peremptory challenges. To read more about this debate, click here.

Use of trial consultants

Since the 1970’s, an industry has arisen called “trial consulting.” Trial consultants are normally persons who have social science training (often master’s or doctoral degrees), and sometimes law degrees, although there is no licensing body that mandates any particular credentials. There is a professional organization of trial consultants—the American Society of Trial Consultants. (To visit the Society’s Web page, click here.)

The focus of trial consultants’ work is improving communication in the courtroom and analyzing the decision-making processes of jurors, judges, and arbitrators. Trial consultants help attorneys test the impact of their evidence and arguments with focus groups, trial simulations, simulations of arbitration procedures, and oral arguments. By analyzing the responses of surrogate jurors, judges, and neutrals, trial consultants help attorneys identify ways to clarify and strengthen their presentations and make more informed decisions on case strategy.

Trial consultants can also identify arguments that need visual support and design the appropriate demonstrative exhibits. Some trial consultants specialize in providing electronic document and deposition presentation systems and technical services for the courtroom. Another common specialization is providing assistance with witness preparation to enhance the impact of lay or expert testimony.

Trial consultants trained in survey research are retained to evaluate the degree of prejudgment toward the parties and/or the issues in dispute in the trial jurisdiction, and to testify in support of motions for change of venue, improved voir dire procedures, or severance.

Trial consultants design jury selection questionnaires and voir dire questions. These tools help attorneys identify jurors who should be challenged for cause, or removed by a peremptory challenge, when a juror’s view of the evidence could be distorted by firmly held beliefs or prior experiences with the parties or the issues to be decided at trial.

The use of trial consultants is perceived by some commentators as detrimental to the justice system. Trial consultants and their supporters vigorously contest this perception. For a summary of the debate on this topic, see below. For a reading list about trial consultants, click here.
 

Summary of debate:

Some commentators view trial consultants as hurtful to the system of justice. The typical objections include that trial consultants:

• Are expensive, and thus tend to tip the balance even more in favor of the wealthy parties who can afford to hire them
• Their input tends to result not in impartial juries, but in juries that are unfairly stacked in their clients’ favor
• The perception of the first two objections by the public tends to undermine the public’s trust in the fairness of the justice system
• Contrary to the premise of the first two objections, there is no empirical verification that trial consultants can actually improve their clients’ prospects for success, which means that their participation may merely prolong the litigation and make it more expensive, with no real benefits to anyone.

Trial consultants vigorously contest these arguments as follows:

• In our adversarial system, it is expected that parties will spend whatever they feel is necessary to present their best cases, and while wealthy litigants have an advantage in hiring trial consultants, this advantage is hardly limited to hiring trial consultants. Additionally, many trial consultants provide their services on a free or reduced-fee basis to less wealthy litigants. Further, trial consultants often reduce litigation costs by helping the parties gain the information needed to reach a settlement.
   
• Trial consultants cannot pick which venirepersons should be on the jury, only give advice concerning which venirepersons to strike. The consultants’ foremost task is to try to identify venirepersons who could not be impartial toward the consultant’s client’s position. And to the extent the consultant tries to assure that favorable venirepersons end up on the jury, this is merely what the system expects parties to do, with or without the use of a consultant. Also, trial consultants can help reduce peremptory challenges based on impermissible reasons such as race, ethnicity, and gender, by identifying biases that are not dependent on those factors.
   
• To the extent the public may perceive unfairness in the system in favor of wealthy litigants, that perception is primarily due to the obvious fact that wealthy litigants can fund their litigation better, not to the fact that one of the ways they may choose to use their wealth is by hiring trial consultants.
   
• Trial consultants’ work is based on proven social scientific methods. And if litigants did not perceive that trial consultants were effective, litigants would cease using trial consultants—which has not been true.