The Law of Jury Selection

Presented by Ted A. Donner, J.D.

American Society of Trial ConsultantsAnnual Meeting, Reno Nevada, June, 2003

Constitutional Rights

Right to impartial jury; Right to voir dire; Right to participate in voir dire; Right to judge’s participation in voir dire; Right to jury drawn from fair cross-section; Right to twelve-member jury; Right to unanimous verdict.

Right to anImpartial Jury

“[Actual bias is] the existence of a state of mind on the part of [a]

juror which satisfies the court, in the exercise of sound

discretion, that the juror cannot try the issues impartially and

without prejudice to the substantial rights of the party

challenging.” -Black’s Law Dictionary (5th ed.

1979).

Distinguishing “Actual Bias” from “Implied Bias”

“An inquiry into actual bias involves a determination of a juror’s subjective state of mind,

which normally turns on the only possible evidence of a juror’s psychological state; the juror’s own admission or denial of bias. The

juror’s testimony renders irrelevant indirect evidence of prejudice, such as a juror’s relation to

a party. Furthermore, a finding of prejudice normally comes to an appellate court with a strong

presumption of validity because it involves a credibility finding by the trial judge. In contrast, inquiries into implied bias have involved an

objective determination of the verifiable facts surrounding a juror’s relation to a party, a

determination which turned on whether the average man in the juror’s situation could

render an impartial verdict. Thus, a juror’s disclaimer of bias was of no consequence.”

- Gromer, The Demise of the Doctrine of Implied Juror Bias, 73 J Crim L & Criminology 1507, 1516-17 (Winter, 1982).

Right to Jury Drawn From Fair Cross-Section of Community

“In order to establish a violation of the fair cross-section requirement, a defendant must show:

(1) That the allegedly excluded group is a distinctive group in the community;

(2) That the representation of the group in venires from which juries are selected is not fair and reasonable in comparison to the number of members of that group in the community; and

(3) That this under-representation is due to systematic exclusion of the group in the jury-selection process”

- Jones v. Garcia, 81 F.3d 168 (9th Cir. 1996)

Challengesto the Array

“Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system.”

- Thiel v. Southern Pacific Co., 328 U.S. 217 (1946)

Challenges for Cause & Peremptory Challenges

“The essential nature of the peremptory challenge is that it is one exercised without a reason stated, without inquiry and without being subject to the court’s control. While challenges for cause permit rejection of jurors on a narrowly specified, provable and legally cognizable basis of partiality, the peremptory permits the rejection of a real or imagined partiality that is easily designated or demonstrable.”

-Swain v. Alabama, 380 U.S. 202 (1965)

Limitations on the Use of Peremptory Challenges

“[Our decision today] does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors should be selected by court officials [including attorneys] without systematic and intentional exclusion of any of these groups.”

-J.E.B. v. Alabama, 511 U.S. 127 (1994).

Right to Examine Prospective Jurors

“The argument is advanced on behalf of the Government that it would be detrimental to the administration of the law in the courts of the United States to allow questions to jurors as to racial or religious prejudices. We think that it would be far more injurious to permit it to be thought that persons entertaining a disqualifying prejudice were allowed to serve as jurors and that inquiries designed to elicit the fact of disqualification were barred. No surer way could be devised to bring the processes of justice into disrepute.”

-Aldridge v. U.S., 283 U.S. 308 (1931)

Right to Participate in Voir Dire

“It is of the utmost importance that the defendant be present when the jury is being selected…. The defendant has unique knowledge which is important at all stages of the trial, including voir dire….”

-State v. Marbley, 20 Kan. App. 34 (1994)

Importance of Voir Dire

“Voir dire should be embraced as the litigator’s only opportunity to have a conversation with the people who will decide the case. There will be plenty of opportunities to talk to jurors, but voir dire is the only chance to talk with them.”

- Gilbert, Ollanick & Wenner, Overcoming Juror Bias in Voir Dire, Trial

Magazine (July 1997)

Constitutional Rights

Right to impartial jury; Right to voir dire; Right to participate in voir dire; Right to judge’s participation in voir dire; Right to jury drawn from fair cross-section; Right to twelve-member jury; Right to unanimous verdict.

Pre-Trial Considerations

Jury Instruction Conference; Motion in limine to reserve time for voir dire; Motion in limine to register challenges outside juror’s

presence; Motion in limine to ensure transcription of voir dire

(including hearings on hardship); Requesting individualized and attorney-conducted

voir dire; Proposed voir dire questions; Juror questionnaires; Swearing in prospective jurors.

IndividualizedVoir Dire

“Because of the court’s questioning of [this prospective juror], eight of the jurors who determined defendant’s guilt and ultimately recommended the death sentence heard [her]… answer ‘yes’ when the court asked if she had learned confidential information that would be favorable to the State if learned by the Sate…. As aptly argued by defendant, this information left the eight jurors free to speculate about the nature of the damning information that defendant and her attorneys were presumably hiding from their view….”

- State v. Gregory, 342 N.C. 580 (1996)

Using Questionnaires

“In the typical case, a written questionnaire works a significant advantage in time only when the prospective jurors’ written responses are made under penalty of perjury and can substitute for oral voir dire. This savings in time is not without a cost. The court, the parties and their attorneys lose the opportunity to observe demeanor….”

- U.S. v. Ruedlinger, 172 F.R.D. 453 (D. Kan. 1997)

Open-ended Questions

“We have… encouraged open-ended questioning. We have strongly disapproved closed-ended questions that predetermine answers or elicit narrow yes-or-no responses. We have encouraged the formulation of additional questions that will provide insight into a juror’s views on a subject in controversy.”

- State v. Harris, 1998 WL 429915 (N.J. 1998)

Hypothetical Questions

“While generic examples… may be given… neither side can preview the details of the evidence to be introduced at trial; questions peculiar to the case are prohibited…. Under certain circumstances, it may become obvious parties are trying to commit the veniremembers about how they will take certain types of evidence. [But] a bright line rule for determining when a question constitutes [improper] committal is difficult due to the nature of the issues involved.”

-Raby v. State, 970 S.W.2d 1 (Tex App. 1998)

Rehabilitation Questions

“We agree with defendant that, had the trial court not mistakenly thought that we have prohibited rehabilitation as altogether a waste of valuable time, defendant might have added his unique perspective and insight into the questioning (through cross examination) and elicited a different response from (the prospective juror).”

- North Carolina v. Brogden, 334 N.C. 39, 430

S.E.2d 905 (NC 1993)

Judicial Discretion OverScope of Voir Dire

“The scope of voir dire rests in the sound discretion of the trial

court, whose decision will not be reversed on appeal absent

palpable error.”

- Commonwealth of Pennsylvania v. Karenbauer,

552 Pa. 420, 438, 715 A.2d 1086 (Pa. 1998)

Limitations on Judicial Discretion

“Whether the trial court abused its discretion [in determining the scope of voir dire] turns on whether, considering the totality of the questioning, counsel was afforded an adequate opportunity to gain the information necessary to evaluate jurors. The trial court must possess discretion in this context because of the multitude of factual variations that may affect the proper scope of questioning. That discretion is strictly limited where the questions are directly related to bias and prejudice, but increases as the directness of that relation decreases or, in some instances, where the question unduly intrudes upon the privacy of the jurors.”

-State v. Piansiaksone, 954 P.2d 861 (Utah 1998)

Attorney-Conducted Voir Dire

“Voir dire examination in both civil and criminal cases has little meaning

if it is not conducted by counsel for the parties.”

- United States v. Ledee, 549 F.2d 990, 993 (5th Cir. 1977)

"Knowing what specific questions to ask is difficult for the judge, who

lacks the same grasp attorneys have of the complexities and nuances of a

particular case.”

- United States v. Corey, 625 F.2d 704, 707 (5th Cir. 1980)

Pre-Trial Considerations

Jury Instruction Conference; Motion in limine to reserve time for voir dire; Motion in limine to register challenges outside juror’s

presence; Motion in limine to ensure transcription of voir dire

(including hearings on hardship); Requesting individualized and attorney-conducted

voir dire; Proposed voir dire questions; Juror questionnaires; Swearing in prospective jurors.

Areas of Inquiryin Voir Dire

Hardship; Occupation & education; Governmental service; Legal experience (prior jurors, lawyers, etc.); Relationship with parties (and counsel); Knowledge of the case; Pre-trial publicity; Political & religious affiliation; Race & gender bias; Ability to follow the law; Attitude and life experience.

Questions RegardingJuror Hardship

“We are aware of no authority holding a defendant’s right to an impartial jury is violated per se by the pre-voir dire excusal of jurors. In fact, the Jury Selection and Service Act indicates the district court may properly exclude summoned jurors prior to voir dire based on hardship or bias.”

- U.S. v. Contreras, 108 F.3d 1255

(10th Cir. 1997)

Questions Regarding Occupation

“[I]n order to exercise intelligently the limited number of peremptory challenges and to determine whether grounds exists for challenges for cause, a plaintiff to an accident case may make reasonable inquiry whether prospective jurors are or have been connected with the business of investigating or paying accident claims, either as employees, agents or stockholders of insurance companies….”

- Horsey v. Mack Trucks, Inc., 882 F.2d 844 (3rd Cir. 1989)

Questions Regarding Education

“We believe that the voir dire conducted in this case was so limited as to preclude the parties from adequately discovering whether the jurors were biased or prejudiced…. The trial judge did not even inquire as to the level of the potential jurors’ education, which [our past cases have] stated [is] a stock question.”

- Art Press Ltd. v. Western Printing Machinery Co., 791 F.2d 616,

618-19 (7th Cir. 1986)

Questions Regarding Governmental Service

"Where government agents are apt to be key witnesses, the trial court... should ordinarily make inquiry into whether prospective jurors are inclined to have greater faith in the agents' testimony merely by virtue of their official positions. The phrasing of the inquiry, of course, is up to the judge, but the failure to make any inquiry at all is usually considered to constitute error.“

- United States v. Victoria‑Peguero, 920 F.2d 77,

84 (1st Cir. 1990)

Questions Regarding Relationships with Parties

“Determining whether any of the prospective jurors know the witnesses is clearly important to the question of the jurors’ impartiality.”

- United States v. Brown, 799 F.2d 134, 136 (4th Cir. 1986)

Questions RegardingKnowledge of the Case

“The practice of excluding jurors simply because they are well informed is a system which puts a ban upon intelligence and honesty, and a premium upon ignorance, stupidity, and perjury.”

-Mark Twain

Questions Regarding Pre-Trial Publicity

“It was incumbent on the trial judge to conduct a thorough-going examination of venire men who indicated they had been exposed to [pre-trial publicity in this case]. Yet without exception, the trial judge relied on perfunctory and generalized questions, which elicited responses from these jurors solely on their subjective ability to ignore pretrial publicity and be fair and impartial.... Where pretrial publicity is as extensive and is likely prejudicial as it was here, the constitutional right to an impartial jury requires an examination into objective as well as subjective indicia of non-prejudice.”

- People v. Tyburski, 445 Mich. 606, 622, 518 N.W.2d 441 (1994)

Questions Regarding Political Affiliation

“Questions about political affiliation should be disallowed, even in a case

involving politics, except where preliminary questioning… indicate[s]

that a potential juror might, or possibly would, be influenced in

giving a verdict by his political surroundings.”

- United States v. Chapin, 515 F.2d 1274,

1289-90 (1975)

Questions Regarding Religious Affiliation

“The right to the free exercise of religion is unquestionably a fundamental right and any impairment of that right is subject to strict scrutiny review.”

- Casarez v. State of Texas, 913 S.W.2d 468

(Tex. Crim. App. 1994)

Questions Regarding Race & Gender Bias

“We do not prohibit racial and gender bias in jury selection only to encourage it in jury deliberations. Once seated, a juror should not give free rein to race or gender bias of his or her own. The jury system is a kind of compact which transfers power from the judge to the jury. The juries in turn decides the case in accord with the instructions defining the relevant issues for consideration. The wise limitations on the authority of courts to inquire into the reasons underlying a jury's verdict does not mean that a jury ought to disregard the court's instructions. A juror who allows racial or gender bias to influence assessment of the case breaches the compact and renounces his or her oath.”

- J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)

Questions Regarding “Ability to Follow the Law”

“The only question permitted beyond the basic questions about the venireperson’s identity was whether each potential juror believed he could be impartial…. [S]uch a general question is inadequate to call to the attention of the venireperson those important matters that might lead them to recognize or display their disqualifying attributes. The trial judge permitted no inquiry designed to elicit the venireperson’s attitudes toward the general nature or specific facts of the case…. Although this court is sympathetic with trial judges who wish to avoid lengthy voir dire, a trial judge’s desire not to make the voir dire a big deal in a case that’s only going to last a couple of days is clearly subsidiary to his duty to impanel an impartial jury.”

-Art Press Ltd. v. Western Printing Machinery,

791 F.2d 616 (7th Cir. 1996)

Questions Regarding Attitudeand Life Experience

“While the trial lawyer’s appetite for information concerning prospective jurors may be insatiable, the burden is borne by [those] prospective jurors. As the scope of inquiry during voir dire has relentlessly expanded, resistance has been expressed by or on behalf of prospective jurors. “

- U.S. v. Padilla-Valenzuela, 896 F. Supp. 968, 971 (D. Ariz.

1995)

Areas of Inquiryin Voir Dire

Hardship; Occupation & education; Governmental service; Legal experience (prior jurors, lawyers, etc.); Relationship with parties (and counsel); Knowledge of the case; Pre-trial publicity; Political & religious affiliation; Race & gender bias; Ability to follow the law; Attitude and life experience.

The Law of Jury Selection

Presented by Ted A. Donner, J.D.

American Society of Trial ConsultantsAnnual Meeting, Reno Nevada, June, 2003