How juries are selected

Years ago, I was in England to celebrate the joint aggregate birthday of two dear friends. (I think it was their 90th.) The evening became even more delightful to me when I realized that the man sitting next to me was a British judge.

At the time I was working for trial lawyers, so Tony (the judge’s nickname — he had been knighted, as I believe was an honor given to judges who rose to a high court bench, so he was actually Sir Tony) began talking about courtrooms and trials and things like that.

Sir Tony expressed amusement at the way American courts selected juries. It may have been that “my” lawyers were then engaged in a particular high-profile murder case for which we used jury consultants. If so, I had a lot of information to offer to our discussion.

Our American courts allow for extended voir dire which can, as in the case I mentioned above, include an extensive questionnaire filled in by all potential jurors who’d responded to the large pre-selection process.

The questionnaire prepared by our jury consultants — a couple of marvelous and interesting women whom I enjoyed assisting — was more than 30 pages in length. And it asked everything about everyone’s lives. What magazines did the jurors subscribe to, what TV shows did they watch regularly? Had they been jurors previously and if so, was the case criminal or civil? Were they satisfied with the outcome? Had they themselves been plaintiffs in any case and if so, were they satisfied with the outcome? Were they or had they relatives who were lawyers, judges, in the military or police forces?

The questions were neutral in construction and eased into sensitive areas, such as racial prejudices, indirectly. Each questionnaire was evaluated by our consultants and entered into a system they’d developed which essentially gave marks to each potential juror as to whether they were good for us (defense) or good for the prosecution.

So by the time actually voir dire began, the lawyers knew a lot about each juror and could narrow questions to address concerns.

I’m scribbling this now because I’ve been hearing a lot of agitated misperceptions about the jury selection in the Minneapolis murder trial of Derek Chauvin, the policeman who killed (allegedly, I have to use this word although…) George Floyd. Some commentators do not like the way the jury is being selected, don’t like how certain potential jurors have been excluded by the defense lawyers, presumably because of their color.

First, jurors can’t be excluded because of their race. Take a look at the Supreme Court ruling on this, Batson v Kentucky.

Now, here’s the definition of peremptory challenge:

Here is the whole business regarding challenges specific to Minnesota. I read through it to extract what seems to be the most important consideration to commentators: how many challenges does each side get?

Subd. 6. Peremptory Challenges. In cases punishable by life imprisonment the defendant has 15 peremptory challenges and the prosecutor has 9. For any other offense, the defendant has 5 peremptory challenges and the prosecutor has 3. In cases with more than one defendant, the court may allow the defendants additional peremptory challenges and permit them to be exercised separately or jointly. The prosecutor’s peremptory challenges must be correspondingly increased. All peremptory challenges must be exercised out of the hearing of the jury panel.

So many of the heartfelt objections about jury selection are obviated by the standards already set by law. And Chauvin’s defense can’t challenge more than they are allowed. (I assume the reason defenses get more challenges than prosecutors is because deference is given to the principle that a defendant is innocent until proven guilty.)

So how does it work in England?

Here’s Judge Tony’s reaction to America’s jury selection system. He laughed. I asked him, “Well, how does it work here [in England]?”

He replied, “There is no voir dire, the barristers have nothing to do with it. The first twelve people who are summoned for jury duty are the jury.”

I asked, “Doesn’t anyone get challenged?”

“Well,” he said, “theoretically, if a prospective juror walks into my court with birds flying around his head, I’d send him home.”