Munsterman, G. T., Hannaford-Agor, P. L., & Whitehead, G. M.
(Eds.). (2006). Jury trial innovations. Williamsburg, VA:
National Center for State Courts.JURYSELECTION
Before a jury trial begins, attorneys must select a jury
from a panel of community members who have
reported for jury duty. Rather than choosing jurors to sit
on the jury, attorneys choose people to exclude from the
jury. The attorneys may excuse anyone who exhibits
demonstrable bias that would interfere with his or her
ability to serve as a juror. Attorneys are also given a
limited number of challenges that they may exercise for
any reason except an attempt to exclude members of
certain identifiable groups. When attorneys make their
decisions to exclude potential jurors based on intuition
or experience, the process is known as traditional jury
selection. Scientific jury selection refers to the process
where attorneys rely on social science surveys of com-
munity members to determine which types of jurors
will be most favorable to their case.Definition of Jury Selection
Jury selection is the process of choosing a petit jury of
independent fact finders from a pool of venire mem-
bers for a criminal or civil trial. Potential jurors are
subjected to a system of examination known as voir
dire, which allows judges and attorneys to obtain infor-
mation about individual venire members. During voir
dire, the judge and attorneys pose questions to individ-
ual jurors and the panel as a whole. Although the term
jury selectiongives the impression that the people are
selected to remain seated on the jury, the process
actually involves removing prospective jurors for a
number of reasons. The Sixth Amendment of the U.S.
Constitution gives defendants the right to be tried by
an impartial jury. To fulfill the requirement of impar-
tiality, jurors who harbor biases or cannot be fair to
both sides are excluded from the jury through chal-
lenges. Individual venire members certainly have vari-
ous expectations, beliefs, and experiences, but the
legal system requires that members of the jury agree
to set aside any preexisting biases and decide the
case solely on the evidence. Although the Sixth
Amendment states that jurors must be chosen from a
representative cross-section of the community, this
does not mean that the petit jury is representative of thecommunity once the jury selection is finished. However,
there are rules in place to protect against discrimina-
tion in the jury selection process, such as the Jury
Selection and Services Act of 1968, which was created
to ensure nondiscrimination in federal jury selection
and services.
During jury selection, there are two types of chal-
lenges that attorneys can use to remove venire persons
from the jury: challenges for cause and peremptory
challenges. A challenge for cause is a request to
remove a potential juror when there is reason to
believe that he or she cannot serve as an impartial
juror. When challenges for cause were first introduced,
very few circumstances warranted their use. Only
jurors who were related to the defendant by blood or
marriage or those who possessed an economic interest
in the case were excused for cause. Apart from those
reasons, a juror could not to be removed from the jury
for cause. In 1911, the Sixth Amendment was codified,
and it provided both parties the right to challenge
jurors for cause. Currently, the challenge for cause
may be used to exclude prospective jurors who possess
biases and are unable to follow the law in a given case.
In addition, most states now acknowledge that poten-
tial jurors may be challenged for cause if they have a
relationship with anyone involved in the trial, if the
juror has prior experience with a similar case, or if an
obvious bias or disability exists that would warrant
removal. Judges are usually in charge of exercising the
challenges for cause and striking out those people who
appear to have a conflict with the case that cannot be
corrected through juror rehabilitation.
The peremptory challenge is the second type
of challenge offered to attorneys during voir dire.
Peremptory challenges allow attorneys to remove a
prospective juror without having to offer a reason for
doing so. Attorneys from each side of the case are
afforded a predetermined number of peremptory chal-
lenges with which to eliminate jurors and the number
of peremptory challenges allowed varies depending on
the state, the case, and even the judge. Initially, the
peremptory challenge was permitted only in capital
cases, and only the prosecution was allowed to use this
device. Now, however, defendants are also afforded the
use of peremptory challenges, and depending on the
nature of the case, they may be allowed a greater num-
ber of peremptory challenges than the prosecution.
Although the adoption of the Federal Rules of
Criminal Procedure in 1946 attempted to reduce this
prodefense advantage for capital, noncapital, and
felony cases, the prosecution is still typically awarded420 ———Jury SelectionJ-Cutler (Encyc)-45463.qxd 11/18/2007 12:43 PM Page 420