Jury selection are many 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 three studies legal authoritarianism, attitudes toward psychiatrists, and attitudes toward the insanity defense were examined as predictors of conviction-proneness in insanity defense cases. Some experts believe that 85% of cases litigated are won or lost in the jury selection phase.
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). Parties have been known to peremptorily strike jurors based on personal characteristics that wouldn't justify a strike for cause, but which they believe makes the juror less likely to be sympathetic to their side.
- 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, 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[who?] 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.
In the 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. The United States Supreme Court has ruled that the practice is constitutional. Critics object to death-qualification because empirical evidence has shown that death-qualified jurors are more likely to convict defendants of crimes than are jurors generally.
Assistance of experts
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, research indicates that the effect of the practice is modest 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.
- Abramson, Jeffrey B., "We, the jury: the jury system and the ideal of democracy", Harvard University Press, 2000. ISBN 0674004302
- 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, doi:10.1016/0047-2352(95)00053-4.
- ^ Brian L. Cutler, Gary Moran and Douglas J. Narby (June 1992), "Jury selection in insanity defense cases", Journal of Research in Personality (Journal of Research in Personality) 26 (2): 165–182, doi:10.1016/0092-6566(92)90052-6
- ^ Fahringer, Herald Price (1993-1994), Mirror, Mirror on the Wall ...: Body Language, Intuition, and the Art of Jury Selection, 17, Am. J. Trial Advoc., pp. 197, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/amjtrad17§ion=11
- ^ The Law: Women, Gimps, Blacks, Hippies Need Not Apply, Time, June 04, 1973, http://www.time.com/time/magazine/article/0,9171,907358,00.html
- ^ Abolished by the Criminal Justice Act 1988, section 118
- ^ Samuel Gross (1996), The Risks of Death: Why Erroneous Convictions Are Common in Capital Cases, 44 Buffalo L. Rev. 469, 494 .
- ^ Diamond, Shari Seidman (1989-1990), Scientific Jury Selection: What Social Scientists Know and Do Not Know, 73, Judicature, pp. 178, http://heinonlinebackup.com/hol-cgi-bin/get_pdf.cgi?handle=hein.journals/judica73§ion=51
Jury-related articles Primary articles Jury selection Specific jurisdictions Groups
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