Did you know that there is an interview process for serving on a jury? Depending on how this interview goes, the attorneys on the case can kick you off the jury for any reason they want. Well, any reason short of discrimination.
This interview is conducted on the record, meaning that you are first placed under oath before your interview and all of your answers are transcribed by the court reporter. This interview is known as “voir dire” and you might know it as “jury selection.”
What you might not realize though, is picking a jury is more about “deselection” rather than “selection.”
You may be Challenged off the Jury
The sole purpose of voir dire is to determine the suitability of potential jurors to hear a particular case. The ultimate goal is to assemble a jury that can objectively weigh the evidence and render a fair verdict without bias or prejudice.
During voir dire, the attorneys are simply trying to determine which jurors need to be kicked off the panel. Jurors can be removed with a “challenge for cause” or as a result of a “peremptory challenge.”
Challenges for cause are legal motions where the attorney believes that the juror is actually prejudiced against the client or have expressed a bias that would prevent them from being fair and impartial.
Peremptory challenges are a tool employed during jury selection that allows attorneys to excuse a potential juror without ever providing a specific reason. Unlike challenges for cause, which require a demonstrated bias or legal disqualification, peremptory challenges are exercised at the discretion of the attorney, provided they do not violate certain constitutional principles.
The number of peremptory challenges varies greatly from trial to trial. In Federal criminal cases, each side may have anywhere from 3 to 20 peremptory challenges. In Texas trials, the parties each get between 3 and 15 peremptory challenges depending on the type of trial.
Before we go further, do you know how jury selection actually works? Let’s demonstrate with an example.
Will you get “picked” for the Jury?
The question everyone has is, “What are the chances of me actually getting picked for jury duty?”
Imagine if you and 19 of your friends stood in line to ride the last Ferris Wheel ride of the day. This is a tiny Ferris Wheel that only carries 12 people, and when it is full the carnival closes. You’re number 20 in line, so it doesn’t seem like you have a very good chance of riding the Ferris Wheel does it?
Not so fast.
The Ferris Wheel operator starts asking all 20 of you questions about your experiences with Ferris Wheels. One person in line states that he actually hates Ferris Wheels, one person in line says that she has a history of vandalizing Ferris Wheels, and then another person in line states that he has debilitating motion sickness.
Before the Ferris Wheel operator started asking questions, the first 12 people in line would be getting on the ride. But after these answers, numbers 3, 7, and 14 are kicked out of line for Cause.
Now, of the people left in line, numbers 1 – 15 are guaranteed to ride since they are now the first twelve people in line.
But wait!
Now the Ferris Wheel operator gets to kick 6 people out of line without having to give any explanation why (peremptory challenge). He kicks 1, 2, 4, 5, 6, and 9 out of line. That means numbers 12 – 23 are now the first 12 people in line and you just found yourself on the Ferris Wheel!
That’s exactly how jury selection works. The first twelve jurors who are not kicked off will serve on the jury.
When to use a peremptory challenge
As a potential juror, it is essential for you to approach the jury selection process with an understanding of peremptory challenges and the reasons behind their use. Here are some key points to consider:
Limited Information: Jurors often have limited information about the case during voir dire. Attorneys may use peremptory challenges based on general impressions, body language, or other subtle cues that may not be apparent to jurors. It is important to recognize that these challenges do not necessarily reflect on your character or qualifications.
Trial Strategy: Attorneys may employ peremptory challenges as part of their trial strategy. The selection of a jury is a dynamic process influenced by the unique aspects of each case. Certain individuals may be excluded not because of any personal inadequacy but because of how their presence might impact the dynamics of the trial.
If you appear to be a natural leader and have given answers that seem like you might be sympathetic to the other side, then the attorney likely wouldn’t take a chance by leaving you on the jury as it is safer just to use a peremptory challenge.
Implicit Biases: It might not be anything that you say or do during jury selection that causes the attorney to use a peremptory challenge to remove you from the jury. Sometimes it is as simple as where you work or your education history.
If you work for a government agency, then you could be viewed as sympathetic to the state during a criminal prosecution. If you have a graduate degree in a scientific field, and the case has a medical or scientific component, then you could be viewed as someone who might try to apply their own experience rather than the admitted evidence.
When peremptory challenges CANNOT be used
While peremptory challenges are a valuable tool for attorneys, their use is not without limitations. The Supreme Court decision in Batson v. Kentucky (1986) established that the exercise of peremptory challenges based on race or gender violates the Equal Protection Clause of the Fourteenth Amendment.
These days, such protection would also likely apply to any attempts to use peremptory challenges on the basis of race, creed, religion, national origin, or even sexual orientation.
If an attorney suspects that the opposing party is using peremptory challenges in a discriminatory manner, they can raise a Batson challenge, prompting the court to evaluate the legitimacy of the challenges.
Can you avoid a peremptory challenge?
When attorneys ask questions during voir dire, it is essential to answer truthfully and candidly. The goal is to provide a complete and accurate picture of your background, experiences, and potential biases. Honest communication is crucial in forming a jury that can fairly assess the case. Remember, you’ll be placed under oath to tell the truth before you ever start answering questions.
Because of that, it is extremely difficult to avoid a proper peremptory challenge without committing perjury. When you’re asked questions about your experience, and your answers reveal that you might be biased, well there’s nothing wrong with that. It doesn’t mean that you wouldn’t make a good juror, it just means that you might not make the best juror for this particular case.
At the same time, if you’re trying to get out of jury duty, you shouldn’t answer untruthfully in an attempt to get removed. I’ve heard people plan to say some pretty outrageous things in order to be excused from jury service.
The real secret to getting out of jury duty is to speak up and answer questions. The less you say, the less reason the attorneys will have to remove you. The more you participate, the more likely the attorneys will uncover some form of bias.
The most important thing is for you to have respect for the legal process. One day you might find yourself in need of a fair and impartial jury.
–Authored by Matthew L. Harris, Esq.,
Matthew Harris Law, PLLC – Civil Litigation Division
1101 Broadway, Lubbock, Texas, 79401-3303
Tel: (806) 702-4852 | Fax: (800) 985-9479