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What's the fair way for lawyers to choose jurors?

Question:

I served on a jury recently. When the lawyers were choosing jurors, I noticed that they first tried to dismiss one juror "for cause," which the judge didn't allow; so then they dismissed him with a "peremptory challenge." Was this fair?

Answer:

Let's start with the big picture. Much as lawyers would like to "choose" jurors, all they can really do is eliminate a few. As you saw, the trial starts out with a large pool of potential jurors. Then the lawyers for both sides get to ask them questions and use a limited number of "challenges" to get people out of that pool. The two types of challenges are 1) challenges for cause, and 2) peremptory challenges.

A challenge for cause asks the judge to excuse a potential juror because he or she appears to be biased or unable to be fair. For example, if the potential juror says something like, "Gosh, I'm sure if the police arrested him, he must be guilty," the defense lawyer would probably rush to challenge that juror for cause. If the judge agrees, the juror is excused. There is no limit on the number of "for cause" challenges that lawyers may raise. (And judges, too, can excuse for cause on their own.)

Sometimes judges deny a challenge for cause, especially if the juror assures everyone that he will be open-minded. Is the lawyer out of luck? No. The lawyer has every right to come back to that juror later with a peremptory challenge -- which is how a lawyer gets rid of a potential juror without having to prove that the juror is unfit.

A peremptory challenge can be used to excuse a potential juror for practically any reason other than the juror's race or gender. Lawyers have a limited number of peremptory challenges, typically no more than five.

Once all the challenges are done, the trial begins. Then the lawyers find out just how solid their assessments were. Often they're reminded that it's not so easy to evaluate a person based on a scant 30-second conversation. It's sort of like that old show The Dating Game -- sometimes smooth-talking Bachelor Number One just turns out to be a dud.

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