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

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Question:

I was recently called to jury duty in a criminal case. When the lawyers were choosing jurors, I noticed that they first tried to dismiss me "for cause," which the judge didn't allow; so then they dismissed me with a "peremptory challenge." Was this fair?

Answer:

Let's start with the assumption underlying your question—that jury selection needs to be “fair.” You may be thinking that it was unfair to you that you were summarily dismissed. But fairness in jury selection is the defendant’s right, not a right held by potential jurors. A fair jury selection process is one that results in a panel of jurors who can evaluate the evidence and witnesses without bias and can follow the law as the judge instructs them.

With this understanding, let’s turn to your question. As you saw, jurors are brought to the courtroom without much, if any, screening. They are called to the jury bench or box and the lawyers are given a chance to ask a few questions (in complex cases and those with a lot of publicity, these questions can become quite numerous and be preceded by a written questionnaire). The lawyers are looking for people who don’t appear to be pre-disposed to one side or the other, and who appear willing to follow the law. Whenever a lawyer’s questions expose a potential juror who fails on one or both counts, the lawyer can ask the judge to dismiss the juror “for cause.” 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 will be excused. There’s no limit to the number of “for cause” dismissals. (And judges, too, can excuse for cause on their own.)

But lawyers also have a small number of “peremptory” challenges—dismissals that are not for cause, and can be based on any reason other than race, ethnicity, or sex. Often, these challenges come down to a lawyer’s hunch—that a person in a particular occupation or background, for example, will not look favorably on the client’s case. A peremptory challenge needs no explanation, but if a pattern of peremptory dismissals shows that race, sex, or ethnicity are the basis for the challenges, the judge will put a stop to them.

Peremptory challenges based on sex, race, or ethnicity are illegal in all criminal cases. In a few states and federal circuits, they're illegal in civil cases, too.

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 (assuming the lawyer has some peremptories left) -- which is how a lawyer gets rid of a potential juror without having to prove that the juror is unfit.

Now then, is it "fair" to the defendant for a prosecutor to get rid of a juror whose background the prosecutor thinks will predispose him to side with the defendant? If "background" means the juror's sex, race, or ethnicity, the answer is no; but if it involves other characteristics, such as never leaving a security guard on a jury, there's no illegality.

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.

by: , Attorney

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