The role of juries as a vehicle for rendering judgements in a court of law goes all the way back to the early 13th century in England and was subsequently imported to the United States. The right to a jury trial has become an indispensable part of the American justice system, strengthened and clarified by a number of court decisions at both the federal and state level.
A jury has created a new professional class—consultants who make up to a quarter of a million dollars per case, simply advising on the jury selection process.
It’s not hard to understand why jury selection is seen as such an important part of the legal process. While the law and the facts of a case are cast in stone, individual people can often interpret the same information very differently.
The jury selection process starts simply enough. Names are drawn at random from lists that indicate who is a resident of the jurisdiction where the trial will take place. Voter registration rolls along with driver’s licenses and ID renewals are the typical sources. The random people drawn are known as the “jury pool” and summoned to court.
Now the pool has to be pared down. Twelve is the number most people associate with juries, but that is typically only for felony offenses. A civil case or a criminal misdemeanor case can often seat just 6 jurors. The judge and the opposing lawyers go to work paring down the pool to whatever the final number must be.
Judges can dismiss potential jurors for bias, either actual or implied. Actual bias is when a potential juror flat-out says they cannot be impartial. An example might be a murder case where the prosecution is seeking the death penalty, but someone in the pool has a principled objection to capital punishment. Since jurors can only decide guilt or innocence and not the penalty involved, this potential juror would be dismissed for actual basis.
Implied bias is the one that is harder to detect. Is a person from a similar background as the defendant more likely to sympathize? Or might they be even harder on the accused than someone from a completely different upbringing? Background and experience form the core of implied bias dismissals and they are rarely cut-and-dried.
The lawyers are also looking for an implied basis, either for or against their client with an obvious desire to seat as sympathetic a jury as they possibly can get. The lawyers can employ 2 different objections.
The first possible objection is “for cause,” which is essentially the same as implied bias—the lawyer believes this person is objectively incapable of judging the case fairly. There are no limits to the times a lawyer can object for cause, but these objections must be approved by the judge and can therefore be argued against by the opposing lawyer.
If a “for cause” objection fails, the lawyer still has what’s called the “peremptory dismissal.” This means they can dismiss a potential juror for any reason other than race, religion or gender. However, there are limits on the number of times a peremptory dismissal can be employed. So it naturally behooves a lawyer to win as many of their “for cause” challenges as possible if they’re going to shape the jury of their dreams.
Once all the culling of the jury pool is complete, a jury is said to be “empaneled.” An empaneled jury will also consist of alternate jurors who will hear the evidence, but will only go into final deliberations if one of the original jurors has to leave. With an empaneled jury, the case is now set to begin.