Jury Selection Behind the Scenes

Experienced trial lawyers will often tell you that "jury selection" is misnamed—it's actually jury deselection. 

Different jurisdictions use different methods. In a Texas non-capital felony trial, the jury panel is ordinarily sixty people. Each juror is assigned a number. The court brings the panel in to the courtroom and lines them up on the benches in numerical order—one through twelve on the first row, for example, thirteen through twenty-four on the second row, and so forth. (Lawyers often refer to the jurors by number instead of name because numbers are easier to keep track of.)

The judge talks to the jurors first. Some judges will talk for a few minutes and leave the lifting to the lawyers, and some judges will talk for hours. Usually the judge will introduce the jurors to general principles—the presumption of innocence, the right to remain silent, the burden of proof—and establish that all of the jurors can follow the law.

After the judge, the prosecutor takes her turn. She will usually talk about the elements of the case and the legal principles that she thinks are important to the case. If, as in many Texas felony cases, the defendant has chosen to have the jury set punishment, she will commit the jurors to considering the top end of the punishment range. She'll also ask questions intended to find the people who might be prejudiced against the State or the applicable law.

After the prosecutor, the defense lawyer takes his turn. He might talk about the legal principles that he thinks are important, commit the jurors to considering the bottom end of the punishment range, and seek out people prejudiced against his client or his defense.

In most non-capital cases all of this questioning is done in the presence of the entire panel. The goal is not to choose twelve jurors as much as to find and eliminate the least favorable jurors and indoctrinate those who remain. Potential jurors familiar with this heuristic can hack jury selection by talking a lot if they don't want to serve, or keeping their mouths shut if they do.

The lawyers will not usually talk to the jury about the facts of the case. While talking about the facts of the case is not legally prohibited, most lawyers think it is. 

One big no-no in jury selection is improper commitment questions. A commitment question is a question that asks a juror to commit to doing or not doing something ("if the State doesn't prove its case beyond a reasonable doubt, will you acquit?"). An improper commitment question is a question that asks a juror to commit to doing or not doing something that the juror is not required to do or not do ("if you learn X, will that create a reasonable doubt?") or that includes unnecessary facts ("will you consider probation if the defendant is gainfully employed?"). The facts-of-the-case hobgoblin probably arises from a misunderstanding of the rule against improper commitment questions.

After the parties talk to the jurors, the lawyers approach the judge, out of the jury's hearing, with their challenges for cause. A challenge for cause is a reason to remove ("strike") a potential juror who for some reason cannot follow the law. The prosecutor will read the judge her list of challenges for cause ("Number two—can't consider full range; Number six—can't follow the law; Number twelve—can't judge; Number fifteen—one-witness rule" and so forth), the defense will agree or object to each challenge. Then the defense will read the judge his list of challenges for cause and the State will agree or object. It is during this phase that jurors will commonly be called up to the bench so that the judge can resolve challenges for cause. The judge will rule on each contested challenge for cause.

The judge and the lawyers then check and doublecheck which jurors have been challenged for cause, and figure out what the "strike zone" is. The strike zone is the group of jurors who might make it onto the jury—the first thirty-two who haven't been struck for cause.

Why thirty-two? Because after the challenges for cause, the lawyers retire to their corners and mark off their peremptory challenges. Peremptory challenges are strikes for any reason (other than race or sex; challenges based on race or sex are constitutionally forbidden). Each lawyer can use ten peremptory challenges in a Texas non-capital felony case. Twelve plus twenty equals thirty-two.

So the lawyers separately mark their peremptory challenges on their jury lists, and then turn the lists in to the clerk, who collates the strikes and makes a list of the first twelve unstruck jurors. The lawyers double-check the list (to make sure that no juror who was struck is on the list) and the judge calls the names of the twelve jurors and excuses the rest with the thanks of the court and work excuses.

(Special rule: alternate jurors. If there are going to be alternate jurors, the strike zone for the alternates includes the first three or four (if one or two alternate jurors are to be chosen) or seven or eight (if three or four alternate jurors) unstruck jurors past the strike zone. Each side can use one additional strike (if one or two alternate jurors) or two additional strikes (if three or four alternate jurors) in this alternate strike zone.)

My paper on the law of jury selection in Texas is available on Scribd. Enjoy.

Questions?

About Mark Bennett

Mark Bennett got his letter of marque from the Supreme Court of Texas in May 1995. He is famous for having no sense of humor when it comes to totalitarianism.
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8 Responses to Jury Selection Behind the Scenes

  1. Diantha Garrett Brennan says:

    Mark,
    When did you pen the paper on the law of jury selection in Texas?
    Diantha

  2. Mike Trent says:

    Mark, the prohibition against talking about the facts in criminal cases (whether real or a common myth), pre-dated Standefer and improper questions by many years. We were always taught that in criminal cases (as opposed to civil) we couldn’t “get into the facts.” Do you have any authority that says we can?

    While no one has ever cited any authority to support this prohibition, even the phrase itself gives some clues as to its basis: What are the “facts”? They are usually in dispute if you’re having to pick a jury. If we were allowed to get into the “facts,” what facts would be allowed? Would just anything be admissible? Could the prosecutor say, “I anticipate you are going to hear about some other offenses committed by this defendant which I’m going to be offered to prove the absence of mistake or accident!” Or could we say, “The officer who made the stop beat my client senseless and only filed this charge to undermine an IAD complaint.”

    Overall, I actually think prohibiitng us from discussing the alleged facts is to the defense’s advantage. It allows us to focus on whether the jury can follow the law, and also how they feel about issues in general terms without them getting bogged down in details that may very well be disputed anyway. It gives us the chance to prepare them for some of what they are going to hear during the State’s case in chief and, to some extent, regulate the flow of often-damaging information. If we have done part of our job in voir dire, the jurors who made it through already know what to listen for and, if they are intelligent and were paying attention, will have an idea of what we are going to say about it.

    I suspect that if lawyers were allowed to “get into the facts” it would be a rule ripe for abuse and would either prolong voir dire significantly or eat up time better spent on indoctrinating/fortifying/eliminating potential jurors.

    • I can’t prove a negative—that the law doesn’t forbid us from talking about the facts.

      There’s a 1981 case in which the CCA held that “The trial court did not abuse its discretion in refusing to allow appellant to ask questions based on facts peculiar to the case on trial,” but that’s a far cry from “the lawyers can’t talk about the facts of the case.”

      It’s a disservice to the jury, and causes a great deal of confusion, to keep them in the dark about the basic facts. How about “defendant is accused of stealing $300,000 from his employer, 3M, over the course of a year”? That introduces the amount, the complainant, and aggregate theft to the jury without (I would contend) prejudicing either party or confusing the issues.

  3. Alex Bunin says:

    Mark, this is a real service. You have explained complicated procedures in a way that is helpful to new lawyers and the general public. Great work.

  4. Josh Considine says:

    Thank you for such a clear explanation of an otherwise opaque process.

    I had no idea there was that much process involved, but it all makes sense, and seems like a really good system (if somewhat baroque). I haven’t read your paper yet, but will next.

    I do have a few questions on challenges for cause. Mostly, how are they resolved? Is it entirely about negotiation to consensus and good faith, or does the judge have complete discretion? Also, what happens if you don’t have a large enough panel remaining for a strike zone of 32 (e.g. thirty nullificationists show up that day)? Do you just have fewer peremptory challenges, or do you go get a new panel?

    (If you were looking for something else to write on, I’d be interested in reading more about the sorts of things you think about during selection. I’ve heard, for example, that engineers usually don’t get selected for juries, but don’t know if or why that might be true.)

  5. Ross says:

    “After the parties talk to the jurors, the lawyers approach the judge, out of the judge’s hearing,”

    I’m guessing that should be “jury’s hearing”.

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