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What is the process for selecting a jury (“jury selection”) in a civil case?
Individuals called to serve jury duty are referred to as the “jury pool”. The jury pool is a cross-section of the population and each member is randomly chosen from government records. Jurors fill out a questionnaire and submit to a background check as part of this process. This procedure seeks to expose any biases or prior conduct that might disqualify the potential juror from service. For example, an individual who has previously been convicted of a felony may not serve on the jury. Once the final pool is selected, these individuals are eligible for selection to serve on a “trial jury” for any case in the court’s jurisdiction.
The trial jury is selected through a process known as “voir dire”. In this process, the plaintiff and defendant (through their counsel) ask questions to evaluate the jurors. The purpose of the questions is to identify any biases that may prejudice the juror’s ability to be fair and impartial in the execution of her duties. If the questions reveal any biases that disqualify the juror from service, the juror is stricken “for cause” from the jury pool. This is a procedural process to narrow the jury pool down to a group of eligible, non-biased individuals. Then, each party is given the ability to strike a limited number of jurors from the pool for any non-discriminatory reason. These are known as “preemptory challenges”. This allows the party to strike potential jurors that they simply do not want on the jury. The only limitation is that the peremptory challenge cannot be used to eliminate a potential juror based upon any protected classification (race, religion, gender, etc.).
Discussion: Do you believe that the jury selection process is fair? Why or why not?
- Some would say that the jury selection process is fair because discrimination is prohibited and there is a limitation on preemptory challenges. Others would argue that the rules against discrimination do not actually prohibit this practice.
Practice Question: Martin is defense counsel in a civil case against his client. During the jury selection process, Martin identifies a number of jurors who appear to have biases that would prejudice his client. He also gets the sense that a couple of the jurors do like him or his client. What are Martin’s options with regard to choosing jurors?
- The options that Martin can challenge the various jurors that appear to be biased against his client. If he can show “cause”, he can strike these jurors without using a preemptory challenge. Next, he has the ability to exercise his preemptory challenges, in that he is able to strike potential jurors that he simply does not want to sit on the jury. Of course, his reason for striking the juror can not be discriminatory based upon a protected characteristic (such as race, gender, ethnicity, national origin, religion, etc.)
Marder, Nancy S., Juror Bias, Voir Dire, and the Judge-Jury Relationship (2015). 90 Chicago-Kent Law Review 927 (2015); Chicago-Kent College of Law Research Paper No. 2015-15. Available at SSRN: https://ssrn.com/abstract=2637539
Stevenson, Drury D., Jury Selection and the Coase Theorem (March 4, 2011). Iowa Law Review, Vol. 97, p. 1645, 2012. Available at SSRN: https://ssrn.com/abstract=1777278 or http://dx.doi.org/10.2139/ssrn.1777278
Joy, Peter A. and McMunigal, Kevin C., Racial Discrimination and Jury Selection (July 19, 2016). Washington University in St. Louis Legal Studies Research Paper No. 16-07-08. Available at SSRN: https://ssrn.com/abstract=2811765 or http://dx.doi.org/10.2139/ssrn.2811765
Lee, Cynthia, A New Approach to Voir Dire on Racial Bias (2015). 5 U.C. IRVINE L. REV. 843 (2015) ; GWU Law School Public Law Research Paper No. 2015-63; GWU Legal Studies Research Paper No. 2015-63. Available at SSRN: https://ssrn.com/abstract=2729432 or http://dx.doi.org/10.2139/ssrn.2729432