In a criminal jury trial, it is the members of the jury who decide the guilt or innocence of the accused. Selecting the jury is an important part of a person’s defense.
The jury selection process, called voir dire, begins with a jury panel being called to the courthouse (usually by postal mail). The jury panel fills out basic background information forms, disclosing facts such as their marital status, employment, whether they have children, etc. That information is provided to the prosecutor and defense attorney and trial judge, shortly before the prospective jurors are brought into the courtroom. After giving the potential jurors basic information about the nature of the case and expected duration, the jury selection process begins in earnest.
Both the prosecution and the defense attorney are able to ask jurors questions in order to determine if the jurors can be fair. Some judges are rather active in this process as well, asking nearly as many questions as the prosecution and defense attorney ask. Other judges take a much more back-seat role and leave the questioning of the jury panel to the attorneys for the most part. An unlimited number of potential Jurors who are biased or otherwise unable to fairly decide the case may be removed “for cause” by both the defense and the prosecution. A limited number of potential jurors may be removed by the defense and prosecution without there being a reason given (this is called a peremptory challenge). The number of potential jurors who can be struck without cause varies based upon the severity of the charges, with more serious cases allowing more peremptory challenges.
The use of peremptory challenges by the prosecution to remove people from a particular group (e.g. of a particular race, ethnicity, gender) based solely upon membership in that group is unconstitutional under the Batson v. Kentucky, 476 U.S. 79 (1986) United States Supreme Court ruling. In cases where such abuse of peremptory challenges is alleged, a “Batson challenge” is brought by the defense attorney to address the situation with the court.
The jury selection process is more than just a chance to weed out unfavorable and biased jurors. It is also an opportunity to begin building a good working relationship with the jurors, and to educate them as to the very important role that they play in our legal system. Working to achieve those goals at the same time as selecting the most favorable jury possible are key parts of a defense attorney’s work during a jury trial.