Jury: Legal Aspects

The voir dire examination. The examination of prospective jurors by lawyers and judges at the beginning of the jury selection process is called the voir dire.

Judges sometimes require prospective jurors to complete questionnaires prior to their examination in the courtroom. In the O. J. Simpson case, prospective jurors were directed to answer 294 multiple-part questions, including: "Which tabloids do you read on a regular or occasional basis?" "How many hours a week do you watch sporting activities?" "Do you own any special knives?" "Name the three public figures you admire most." And, "Does the fact that O. J. Simpson excelled at football make it unlikely in your mind that he could commit murder?" Such in-depth questioning, however, is rare in ordinary criminal cases.

In most states, a defendant is entitled to a list of prospective jurors prior to trial, and although lawyers may not attempt to influence jurors, both defense attorneys and prosecutors may investigate them. Prosecutors sometimes use law enforcement officers for this purpose, and they typically keep records of how jurors have voted in the past. In addition, prosecutors are likely to have easy access to the arrest and conviction records of prospective jurors. Courts generally do not require either prosecutors or defense attorneys to disclose what they have learned about prospective jurors to their opponents, but some courts have required limited disclosures.

In a number of high-profile cases, defendants with means have hired jury consultants to survey community attitudes and construct profiles of jurors likely to prove favorable or unfavorable to the defense. Jury consultants use focus groups for the same purpose, and some defendants have hired psychologists to observe prospective jurors in the courtroom and predict their behavior on the basis of facial expressions and body language. Defendants also have been known to use experts to analyze the handwriting of prospective jurors.

In a substantial majority of federal courts and in many state courts, the voir dire is conducted primarily by the trial judge, who generally permits counsel to ask additional questions or else submit questions in writing for the judge to ask the panel. In many state courts, however, the voir dire is conducted primarily or exclusively by the prosecutor and defense attorney. In examining prospective jurors, lawyers probe their private attitudes and practices—asking, for example, about religious beliefs, drinking habits, reading habits, memberships, hobbies, traffic accidents, and prior experience with lawyers, and then asking about the jurors' relatives' jobs, experiences as crime victims, and arrest records as well. A lawyer usually hopes not only to gain information but also to establish rapport and to create a favorable predisposition to the lawyer's side of the case.

In Turner v. Murray, 476 U.S. 28 (1986), the Supreme Court held that "a capital defendant accused of an interracial crime is entitled to have prospective jurors informed of the race of the victim and questioned on the issue of racial bias." The trial court's failure to conduct this questioning, however, entitled the defendant only to relief from his capital sentence, not to the reversal of his conviction. The Court also held that a judge's refusal to question prospective jurors about possible racial prejudice violated the due process clause when the defendant was a black civil rights worker charged with a drug offense (Ham v. South Carolina, 409 U.S. 524 (1973)). The omission of questions concerning racial prejudice was permissible, however, when the defendant was a black charged with robbing, assaulting, and attempting to murder a white security guard (Ristaino v. Ross, 424 U.S. 589 (1976)).

Critics have argued that the extended voir dire of prospective jurors is wasteful, invasive of privacy, and incompatible with the democratic ideals of the jury system. Most trial lawyers, however, resist restriction of the practice and support attorney—rather than judge—conducted voir dire. These lawyers maintain that the more latitude they are allowed in examining prospective jurors, the less they must rely on hunches and group stereotypes in exercising their peremptory challenges.

Challenges for cause. Statutes typically specify a number of grounds for disqualifying prospective jurors such as prior service on a grand or trial jury in the same case or being a member of the defendant's family. The most common basis for a challenge for cause, however, is bias or an inability to try the case impartially. Judges often appear reluctant to sustain challenges for cause, and despite clear indications of bias, they may treat a pledge from the challenged juror to judge the case impartially on the basis of the evidence presented as sufficient. The judges tend to rely in doubtful cases on the exercise of peremptory challenges by lawyers to remove possibly biased jurors.

Even when jurors claim that they can render an impartial verdict, pretrial publicity can be so extensive and so prejudicial that bias must be presumed (Irvin v. Dowd, 366 U.S. 717 (1961)). Exposure to descriptions of a defendant's alleged crime and prior criminal record, however, does not automatically warrant a presumption of bias (Murphy v. Florida, 421 U.S. 794 (1975)).

In a capital case, a court may not excuse a juror for cause simply because this juror "has conscientious scruples against capital punishment" (Witherspoon v. Illinois, 391 U.S. 510 (1968)). A court may, however, excuse a juror whose views of capital punishment would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath" (Wainwright v. Witt, 469 U.S. 412 (1985)). Just as a prosecutor may "death qualify" a jury by excluding people who would oppose the death penalty regardless of the circumstances of the case, a defendant in a capital case must be allowed to ask prospective jurors whether they would automatically support the death penalty. Jurors who answer this question yes must be disqualified (Morgan v. Illinois, 504 U.S. 719 (1992)).

Peremptory challenges. Statutes and court rules afford prosecutors and defendants a specified number of peremptory challenges that they may exercise without giving reasons. In a federal felony trial, for example, the defendant may exercise ten peremptory challenges and the prosecutor six. Most states afford the defendant and the prosecutor an equal number of challenges.

Typically, the process of exercising peremptory challenges begins by seating a group of twelve prospective jurors in the jury box. Members of this panel are challenged initially by the prosecutor, and the jurors whom the prosecutor dismisses either peremptorily or for cause are replaced. The defense attorney then makes challenges on behalf of the defendant. Each lawyer tenders a panel of twelve to the other until both sides have exhausted their peremptory challenges or declined the opportunity to make further challenges.

A less common procedure is the "struck jury system," which begins with a panel containing a sufficient number of prospective jurors to permit both sides to exhaust their peremptory challenges and still have enough jurors for trial. The parties first make their challenges for cause, and the jurors removed for cause are replaced. Then the parties alternate in making peremptory strikes.

The right of a criminal defendant to challenge a number of jurors peremptorily dates from the earliest days of the jury, but when English and American juries were composed entirely of white male property owners, this right was virtually never exercised. Democratization of the jury, which enabled lawyers to base their challenges on group judgments and stereotypes, revived the peremptory challenge. Once the Supreme Court had condemned discriminatory jury selection by legislatures and court officials, this challenge was the last bastion of undisguised racial discrimination in the American criminal justice system.

In Swain v. Alabama, 380 U.S. 202 (1965), an all-white jury in Talladega County, Alabama, convicted a nineteen-year-old black man of raping a seventeen-year-old white woman and sentenced him to death. Since at least 1950, no black had served on a civil or criminal jury in Talladega County, and the prosecutor in Swain used six peremptory challenges to remove from the jury panel the only six blacks eligible to serve.

The Supreme Court affirmed the defendant's conviction and sentence. It distinguished between striking blacks in order to improve the prosecutor's likelihood of success at trial and striking them "for reasons wholly unrelated to the outcome of the particular case . . . [simply] to deny the Negro the same right and opportunity to participate in the administration of justice enjoyed by the white population." The Court recognized that, in the absence of tactical, trial-related objectives, the use of peremptory challenges to exclude blacks would be unconstitutional. The Court held, however, that the prosecutor's exclusion of all black jurors in a single case could not establish the proscribed motivation. Moreover, the Court concluded that the evidence before it failed to establish that the prosecutor was responsible for the exclusion of blacks in cases other than Swain.

In 1986, the Supreme Court overruled Swain and brought the unrestricted, truly peremptory challenge to an end. It held in Batson v. Kentucky, 476 U.S. 79 (1986), that "the Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race." Later cases held that the equal protection clause forbids discrimination by defense attorneys as well as prosecutors (Georgia v. McCollum, 505 U.S. 42 (1992)), that a white defendant may challenge a prosecutor's exclusion of blacks (Powers v. Ohio, 499 U.S. 400 (1991)), and that lawyers may not use peremptory challenges to discriminate on the basis of gender ( J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994)).

In the decision forbidding gender discrimination in the exercise of peremptory challenges, the Supreme Court indicated that the Fourteenth Amendment does not limit peremptory challenges unless they are based on classifications that receive "heightened equal protection scrutiny." Prosecutors and defense attorneys, unlike others governed by the equal protection clause, need not have a "rational basis" for treating people differently. They apparently may challenge prospective jurors simply because they are overweight, ugly, physically disabled, nervous, tattooed, or former residents of New Jersey.

Some lawyers employ selection principles that savor of whimsy, superstition, and folklore. Johnnie Cochran notes that he "excuse[s] any man who shows up wearing either white socks or a string tie" (Cochran, p. 261). Unlike classification on the basis of sock color, classification on the basis of religious belief does receive heightened scrutiny under the equal protection clause. Nevertheless, whether lawyers may challenge prospective jurors on the basis of their religion remains unsettled.

Under Batson, a defendant who objects to a prosecutor's use of a peremptory challenge must establish a "prima facie case of discrimination" before the prosecutor must offer an explanation for this strike. When the prosecutor has not given any verbal indication of an improper purpose, the requirement of prima facie proof may effectively allow the prosecutor to exclude at least one black juror without challenge. When a defendant does establish circumstances warranting "an inference of purposeful discrimination," the prosecutor must provide a "neutral explanation for challenging black jurors." The Court emphasized in Purkett v. Elem, 514 U.S. 765 (1995), however, that the prosecutor's explanation need not be "minimally persuasive." The trial judge may find that an implausible explanation was a "pretext for purposeful discrimination," but if the judge regards the prosecutor as sincere, the judge's determination of credibility will be conclusive. Purkett allowed a trial judge to accept the explanation "mustaches . . . and beards look suspicious to me," and an earlier decision permitted a prosecutor to exclude Latino jurors because they were bilingual and therefore "might have difficulty in accepting the translator's rendition of Spanish-language testimony" (Hernandez v. New York, 500 U.S. 352 (1991)). A juror may be excluded either because he has failed to maintain eye contact with a prosecutor or because he has stared at the prosecutor too long (Alschuler, 1989).

Although Batson requires the use of cumbersome procedures, its prohibition of racial discrimination is easily evaded. Partly for this reason, partly because much invidious discrimination not based on race or gender remains lawful, and partly because lawyers' challenges generally serve partisan rather than public ends, many commentators have echoed Justice Marshall's call in Batson for abolition of the peremptory challenge. Defenders reply that the peremptory challenge provides a way of excluding some jurors who should not serve without calling them biased, saves judges from deciding difficult questions of what experiences, associations, and perspectives should disqualify jurors, and "allows the covert expression of what we dare not say but know is true more often than not" (Babcock, pp. 553–554).