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Jury selection refers to several methods used to choose the people who will serve on a trial jury. The jury pool is first selected from among the community using a reasonably random method. The prospective jurors are then questioned in court by the judge and/or attorneys. Depending on the jurisdiction, attorneys may have an opportunity to mount a challenge for cause argument or use one of a limited number of peremptory challenges. In some jurisdictions that have capital punishment, the jury must be death-qualified to remove those who are opposed to the death penalty. Attorneys sometimes use expert assistance in systematically choosing the jury, although other uses of jury research are becoming more common. The jury selected is said to have been "impaneled".
In some jurisdictions, the first step of jury selection is composing a jury pool (also a "venire"). This is a panel of persons selected for jury duty and from whom jurors are to be chosen. A common method for drafting jurors is to draw them at random from electoral rolls (known as allotment or sortition), lists of licensed drivers, or other broad-based lists of residents in the community (e.g., tax rolls, public utility consumers). Increasingly, courts combine multiple lists to compile the master jury list. In the U.S., the most common combination of source-lists is registered voters and licensed drivers--employed in 19 states.
Not all individuals who are qualified for jury service are necessarily required to serve. Most jurisdictions provide a limited number of exemptions from jury service, which permit individuals to decline jury service. The most common types of exemption are for people whose job in some way precludes them (for instance, doctors, firefighters, politicians, people who themselves work in the criminal justice system, including the Police). Traditionally, occupational exemptions were reserved for those individuals whose unique skills or services were so indispensable to the community that their absence for an extended period would create a hardship for the community. Other common exemptions include those for individuals who have served as a trial or grand juror within a given period of time (typically 12 to 24 months), sole caregivers of young children, or incompetent adults. People can also be exempted on religious or ideological grounds, such as Jehovah's Witnesses. Also, people can be exempted if they believe it is wrong (for religious or moral reasons) to sit in judgment on someone. In some jurisdictions in the United States, prior legal education or being a lawyer may also be a reason to be exempted, under the theory that a legal professional may be overly influential to other jurors. However, in recent years, many jurisdictions have eliminated these exemptions. Courts can also excuse individuals from jury service on grounds of medical hardship, financial hardship, or extreme inconvenience.
Jurors are then picked by a selection process. If a jury pool is exhausted without the jury being completed, the clerk of the court is required to ask the jury assembly area to send more jurors. If additional jurors are not immediately available in the jury assembly area, most jurisdictions permit the court to impanel a tales jury (pronounced TAY-leez or TAILZ). A tales jury is one in which the jurors or talesmen are brought to the court under judicial order to law enforcement to pick up qualified individuals from any public place in the community. This is a departure from the more common procedure of selecting jurors randomly from a broad-based list of names.
Many jurisdictions permit a defendant to request a change of venue to a location where they are more likely to receive a fair trial. A change of venue can be necessary due to the effects of widespread publicity on the jury pool.
Selected jurors are generally subjected to a system of examination whereby both the prosecution (or plaintiff, in a civil case) and defense can object to a juror. In common law countries, this is known as voir dire. Voir dire can include both general questions asked of an entire pool of prospective jurors, answered by means such as a show of hands, and questions asked of individual prospective jurors and calling for a verbal answer. In some jurisdictions, the attorneys for the parties may question the potential jurors; in other jurisdictions, the trial judge conducts the voir dire.
The method and scope of the possible rejections varies between countries:
- In England these objections would have to be very well based, such as the defendant knowing a potential juror, to be allowed.
- Some jurisdictions, including Australia, Canada, France, New Zealand, Northern Ireland, the Republic of Ireland, and the United States, give both the defense and prosecution a specific number of unconditional peremptory challenges. No justifications have to be brought to exclude a specific juror. Generally, defense attorneys exclude jurors who have professions or backgrounds similar to that of the victim and who could thus feel an emotional link to them, while prosecuting attorneys exclude jurors who might show affinity to the defendant. However, in the United States, if either party excludes a minority group member and the other party challenges, under Batson rules the party exercising the peremptory strike must provide a race-neutral reason for the exclusion (later extended by court rulings to gender-neutral reasons as well).
- In some jurisdictions, attorneys also have the right to make a challenge for cause argument to the judge. This is an argument over whether a juror's particular background or beliefs make them biased and therefore unsuitable for service on the jury. In the United States, and probably other nations, it is known that some citizens deliberately exploit this to get out of jury duty (for example, by mentioning knowledge of legal concepts).
In the United States the process of voir dire is often much more in depth than in other countries and its practical implementation is somewhat controversial because of this. The amount of privacy that the potential jurors are afforded when asked questions raises the issue of the definition of "impartial jury". Some people question if the intensive questioning of potential jurors looks not just for inherent bias but for a potential to be emotionally swayed. On the other hand, proponents argue that this method gives both sides more confidence in the verdict.
England and Wales
The process in England and Wales simply consists of the single question: "Can you give a fair hearing to both the Crown and the defence?" Any prospective juror who affirmatively answers the question is impanelled on the jury.
The defendant has a limited right to challenge a juror. Formerly there was a right to "peremptory challenge", by which a defendant could object to a juror without giving a reason, but the number of such challenges was limited. The other kind of challenge was a "challenge for cause", in which the defendant gave specific grounds for believing that the juror was biased. Formerly a challenge to a potential juror was tried by other jurors, who took a special oath for the purpose (hence the name voir dire for the procedure). Now challenges for cause are tried by the trial judge. The prosecution had no right to a peremptory challenge, but could instead ask a juror to "stand by": the juror would then go to the back of the queue in the jury panel, and was therefore unlikely to sit on that particular trial.
- Main article: Death-qualified jury
In United States capital cases (cases where the prosecution pursues the death penalty), the jury must often be "death-qualified". A death-qualified jury is one in which all members of the venire that categorically object to capital punishment are removed. This has the effect of ensuring that the jury will be willing to hand down a sentence of death, if they feel the crime warrants it. According to some, it also has the effect of increasing the likelihood of conviction, and so has attracted controversy. The United States Supreme Court has ruled that the practice is constitutional.
Assistance of experts
- Main article: Scientific jury selection
In the 1970s and 1980s in the United States, scientific jury selection — the use of expert assistance to more effectively use peremptory challenges — became more common. The practice has proven controversial because of fears that it gives lawyers the ability to "fix" the jury and enhances the distorting effect of money. That said, the evidence of the effectiveness of the practice remains ambiguous at best.
Currently, the more generic jury consulting or jury research is increasingly more common as attorneys trying high-stakes cases demand assistance through all parts of the trial process. The still more generic field of trial consulting also contains a myriad of other tools and techniques not directly related to juries.
- Fukurai, Hiroshi (1996). Race, social class, and jury participation: New dimensions for evaluating discrimination in jury service and jury selection. Journal of Criminal Justice 24 (1): 71–88.