Criminal Trial

Jury Selection

Although the popular image of a criminal trial begins with the opening statements of the prosecutor and defense counsel, most criminal trials actually begin with jury selection. For most major criminal charges, a defendant is entitled to a trial by jury—generally twelve but in some instances as few as six members of the community. Unless a defendant waives trial by jury and thus elects to have the judge sit as the trier of fact, the jurors who actually sit in judgment must be chosen from a larger pool of potential jurors called a venire.

Ordinarily, on the day jury selection is to begin, the pool of would-be jurors will be asked to report to the court to undergo a series of questions known as voir dire. Potential jurors will be questioned, usually by both the prosecutor and defense attorney but sometimes by only the judge, with regard to a range of issues. These issues include, but are not limited to, any prior knowledge that potential jurors have of the case and the participants, any biases they may harbor, any conclusions they may have already reached regarding the defendant's guilt or innocence, and any qualms they might have about being able to render a fair and impartial verdict.

Potential jurors whose answers to questions on these and other issues suggest that they may be biased or unable to maintain an open mind may be challenged for cause and, in the judge's discretion, excused from service on the jury. Potential jurors not excused for cause may also be excluded from service in a particular case simply because one attorney or the other does not want them on the jury. Both the prosecutor and the defense attorney are normally given a predetermined and limited number of “peremptory challenges,” which allow them to strike a potential juror without cause or explanation. Several U.S. Supreme Court cases, however, have precluded attorneys from exercising peremptory challenges on the basis of a potential juror's race or gender.

In most cases, the first twelve jurors to be seated—that is, to survive this process without being rejected for cause or excluded by a peremptory challenge—will serve on the jury. However, in many cases, one or more alternative jurors are also selected through this same process, so that if a juror is later excused or unable to serve, he or she may be replaced by someone who has sat through the trial and heard all the evidence to that point.

Many attorneys regard jury selection as one of the most important elements of a trial. Thus, they put a great deal of effort into the voir dire process. Indeed, in some high-profile trials, attorneys are assisted in this process by jury selection consultants—behavioral scientists who specialize in using demographic and [Page 425]psychological data to determine what types of jurors are most likely to reach the desired verdict and/or to make on-the-spot judgments about the likelihood that a specific potential juror will or will not reach that verdict.

...