Jury Selection and the Role of the Jury

The Right to a Trial by Jury

The right to a trial by jury is specifically provided for two times in the U.S. Constitution:

• • Article Three, Section Two:“Trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall be held in the State where the said crimes shall have been committed…”

• • Sixth Amendment:“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed…”

Who can demand trial by jury?

Although it took many years, over time our courts, through judicial interpretation, have refined the right to a trial by jury. The right to a trial by jury is the right of every criminal defendant who is accused of a crime that carries a potential sentence of six months or more in prison.

The right belongs to the criminal defendant, not the prosecutor.

A defendant’s choices

In addition to having the right to a trial by jury, a criminal defendant has two more options. He can decide to be tried by a judge rather than a jury, or he can accept a plea bargain if one is offered to him.

The plea bargain

Often plea bargains are negotiated because they are beneficial to both sides. For the defendant, accepting a plea bargain usually means a reduced sentence or fewer charges in exchange for pleading guilty. For the government, plea bargains save time and money, but more importantly, they provide finality – a guilty plea is final and cannot be appealed.

The Role of the Jury

The U.S. Constitution requires that an impartial jury determine whether the prosecution has proven beyond a reasonable doubt that a criminal defendant is guilty of the crime with which he is charged. This means that the jury must decide beyond a reasonable doubt if the crime was committed, and if the defendant is the one who committed the crime.

The role of the jury is distinctly different from that of the judge. While the judge has the role of interpreting the law as it applies to the case, the jurors collectively have the role of fact-finder in the case. It is up to the jury to decide which witnesses are to be believed, and which evidence is credible.

Before the jury begins to deliberate, the judge charges the jury, which includes reading the law to them, and explaining to them that they must decide what the facts are and then apply the law as written to those facts.

What is beyond a reasonable doubt?

The burden of proof in criminal cases is beyond a reasonable doubt. This does not mean that the jury must have no doubt. Instead, it means that they must not have a fair doubt based on common sense.

The jury’s decision

In federal court and in most states, a jury must be unanimous in their verdict. (In the federal system, this means all 12 jurors must agree. In some states, the jury can have fewer than 12 members, but the Supreme Court has ruled that there can be no fewer than six jurors.) Like the federal courts, most states require a jury to reach a unanimous verdict. However, the Supreme Court has ruled that even those states that do not require unanimity must have unanimous verdicts in juries of only six members.

In cases where unanimity is required, all the jurors must reach an agreement on the verdict. When they cannot, the judge will eventually declare a mistrial.

Occasionally, a jury will be so opposed to the law that they will go against the judge’s instructions to apply the law to the facts of the case. Ignoring the law and refusing to convict is known as jury nullification. Even though the parties might suspect that jury nullification has occurred, the acquittal cannot be challenged. The jury’s verdict of not guilty is the final word.

Jury Selection

With the role of the jury so vital to the American criminal justice system, it is crucial that an impartial jury be selected to sit in judgment of a defendant.

As the Constitution requires, a criminal jury is selected from a jury pool, or venire, comprised of people that are representative of a cross section of the local community.

To generate the jury pool, states usually use a combination of voter registration records, driver’s license records, and tax records. States can use any method of calling potential jurors as long as it does not exclude an identifiable group or class (such as minorities or women).

Empaneling the jury

In cases of extreme hardship, the trial judge may excuse a potential juror right away. Hardship exclusions have nothing to do with the particular case being tried. Examples of hardship exclusions might include a single parent with no childcare available, an illness, or a small business owner who has no employees to run the business while he serves.

Voir dire

To select jurors they believe can be impartial and render a just verdict, the judge and attorneys go through the process of voir dire, which means “to speak the truth”. The judge and/or attorneys ask potential jurors a series of questions. The goal is to eliminate any jurors who may be prejudiced one way or the other.

The challenge for cause

If the attorney for either side asks the judge to strike a particular juror and states a legitimate cause why the individual would likely be unable to be impartial, the judge can strike the jury for cause. The judge can strike as many jurors for cause as necessary.

For instance, if a potential juror is a neighbor of the defendant’s mother, the juror could be stricken for cause.

The peremptory challenge

As a potential juror answers questions in the voir dire process, each side examines the answers to decide whether they think the juror would be more likely to convict or acquit. If one side believes that something in the juror’s answers indicates the juror would likely support the other side, the attorney can ask that the juror be stricken without giving a reason. This is called a peremptory challenge, and each side has a limited number to use in jury selection.

The procedure of peremptory challenges allows each side to try to mold the jury by seating jurors they believe will agree with their side over the other.

Note: Prosecutors are warned against using peremptory challenges to exclude jurors based on racial discrimination. If the defense believes that the prosecutor has engaged in this, the defendant can raise a “Batson-challenge”. This is based on the case Batson v. Kentucky, 476 U.S. 79 (1986). In Batson, the Supreme Court ruled that exclusion of certain jurors based on racial discrimination violates the defendant’s rights under the Equal Protection Clause.

Death qualifying jurors

In capital cases when the death penalty is a possibility, the jury members must be “Witherspoon-qualified”. This means that each member of the jury must state that they would be able to set aside their own personal beliefs about the death penalty and follow the judge’s instructions on the law, and vote for death if the facts are appropriate.