Court Rules Against Jury Selection example essay topic

In order to understand how important jury selection is, one must first understand the process of the selection. On the day of the trial, there may be as many as one hundred and fifty jurors called for examination and selection. Out of that one hundred and fifty, twelve will be selected as the jurors to try the case, with two alternates. The hundred and fifty called, however, represent only a small percentage of the number of persons eligible for jury service. The one hundred and fifty, or smaller or greater number called for a particular case are referred to as the "panel", and are selected from the jury lists of the County or Federal district in which the Court is located. Local laws, rules or regulations usually determine the number of jurors whose names are to be maintained on the jury list.

The names on the jury list are usually selected from the registered and qualified voters, and the list checked at regular intervals to replace those who have died, moved away, or for some other reason become ineligible. Citizens who are selected for the jury list may be selected merely by having their names taken from the list of qualified voters, and being summoned to appear on a particular day, or they may be requested to appear at the office of the Clerk of Court to answer questions, or to complete a questionnaire. In states and localities where there is a preliminary questionnaire or inquiry any juror who is disqualified or exempt may state his reason for being excused and thus avoid being called again. Where there is no preliminary inquiry, the notice is mailed or observed by the sheriff, and on the return day the juror may state his reason for being excused. In some states the trial of complicated or difficult cases may be held before a "Special Panel" or "Blue Ribbon" jury. In New York for example, the Special Panels are used for murder cases, and the number of names to be included on a Special Panel for each country is determined by the Judiciary Law.

The names for the Special Panel are selected by lot from the names on the general jury lists, and each person selected is called to the office of the Commissioner of Jurors to complete a questionnaire. Among other questions, the applicant is asked whether he is opposed to the infliction of the death penalty, and whether he has any objections, in a proper case, to returning a verdict based on circumstantial evidence. If he is selected, his name is then placed on a smaller list of Special Jurors. Many objections have been made to "Special Juries" as unconstitutional, and as not representing a true cross section of the community. They are sometimes referred to as "convicting juries"; although public officials generally deny that there is any screening of the jurors on the bases of past performance. When a number of jurors must be called for the trial of a case or series of cases, the names of all those eligible to serve (excluding those whose recent service on one or more juries has entitled them to be excused for a period of time) are placed in a large drum or wheel, and the names of those to be selected are then drawn by lot.

In important cases, the lawyers for both sides are entitled to be present. After the drawing is completed, the members of the panel are notified to appear in court. At the opening of Court, the Court first calls for excuses, and the jurors who feel that they have a valid legal excuses for absence tell the judge the reason why they feel that they should not be required to serve in the particular case or cases. The judge will then listen to each excuse and make his ruling immediately. An excuse of severe illness in one's family, requiring presence at home will generally be sustained, while the fact that a juror had tickets to the theater or to a baseball game will not be valid. If a juror is engaged in his own business, and the call to jury duty comes at his busiest season of the year, he may be excused from the particular panel, without prejudice to the right of the Court to call him at a later date.

Each excuse will stand on its own merit, and will be determined on the circumstances of the particular juror. After the excuses have been disposed of, the jurors will be called to the witness stand or to the jury box to be examined under oath with respect to their fitness and qualifications to serve as jurors in the case about to be tried. This preliminary examination, at the trial, is referred to as the "voir dire" examination, a French word meaning, "to see to speak". During voir dire, attorneys have the right to excuse a juror in peremptory challenges. Peremptory challenges are based on the potential juror admitting bias, acquaintanceship with one of the parties, such as friend ship or hostility to either of the parties, personal acquaintance with one of the prospective witnesses, or an aversion to the type of case being tried, personal knowledge of the facts, or the attorney believing he / she might not be impartial. In some states each juror is placed in the witness chair, and after being sworn to answer truthfully the questions asked of him, is interrogated, and at times is furnished with information which will enable him to answer the questions asked of him.

In other jurisdiction, twelve jurors are placed in the jury box simultaneously, and are then questioned. In most state courts the lawyer for the opposing side conducts the examination, and asks the questions, and the lawyers are free to suggest to the judge questions to be asked of particular jurors, or of the panel in general. This process is important because it may reveal a juror could not conscientiously serve as a juror, or that there is some reason why he would not make a good juror. If, for example the prospective juror has been a friend of many years standing of the defendant, he could not be expected to judge impartially. On the other hand, if he him self has been injured in an automobile accident, he might be unduly sympathetic to the plaintiff in such a case. In criminal cases the lawyers will inquire whether the jurors have ever been the victims of a crime, since a man whose house had been burglarized might be prejudice in the trial of a defendant accused of the crime of burglary.

There are several points that are considered when a juror is being selected. For instance, age. The age requirements for prospective jurors vary in different states, although the most generally accepted those between the ages of twenty-one and seventy. Both the maximum and the minimum requirements vary, and we find some states which will not accept for jury service persons under the age of twenty five years, and others which strike jurors from the lists on their attainment of the ages of sixty five or seventy years.

The reasons advanced for the exclusion of youthful jurors is that they lack the necessary experience and understanding, while elderly jurors are sometimes excluded because they are generally believed to have lost some of their visual or auditory keenness. Civil Status is another point that is considered. In most states any person who has been convicted of a felony, or serious crime, will not be permitted to serve on a jury. In some states, the bar is raised only against those who have actually received a sentence of imprisonment for a year or more, or who have been guilty of certain types of offenses. The law of your own state will be explained to you when you are called to qualify as a juror. The most important point for any prospective juror to bear in mind is that he must not conceal any information which is sought by the authorities who ask him to qualify as a juror.

This caution applies both when the information is sought in a written questionnaire, and when the prospective juror is answering questions asked by a clerk in the office of the Court or County Clerk. Under decisions of the United States Supreme Court, any qualification for, or disqualification from, jury service by reason of color is forbidden. The same rules apply to Grand Juries, and indictments will be dismissed if returned by the Grand Juries from whose membership members of any racial group have been excluded. Despite the efforts of lawyers and judges to eliminate racial discrimination in the courts, does racial bias play a part in today's jury selection? Positive steps have been taken in past court cases to ensure fair and unbiased juries. Unfortunately, a popular strategy among lawyers is to incorporate racial bias without directing attention to their actions.

They are taught to look for the unseen and to notice the unnoticed. The Supreme Court in its precedent setting decision on the case of Batson vs. Kentucky, 476 U.S. 79 (1986), is the first step to limiting racial discrimination in the court room. In this case James Batson, a black man, was indicted for second-degree burglary and receipt of stolen goods. During the selection of the jury the prosecutor used his peremptory challenges to strike out all of the four black potential jurors, leaving an all white jury. Batson's attorney moved to discharge the venire, the list from which jurors may be selected, on the grounds that the prosecutor's peremptory challenges violated his client's Sixth and Fourteenth Amendment rights to have a jury derived from a "cross-section of the community" (People vs. Wheeler, 583 P. 3d 748 [Calif. 1978]).

The circuit court ruled in favor of the prosecutor and convicted Batson on both counts. This case went through the courts and finalized in the U.S. Supreme Court. In a 7-2 decision, the Supreme Court ruled in favor of Batson. The Court held that the Fourteenth Amendment forbids the prosecutor from challenging potential jurors solely on account of their race or on the assumption that black jurors as a group will be unable to consider the state's case against a black defendant impartially (74 A.B.A.J. 54, April, 1988). Quoting an 1880 ruling that barred the exclusion of blacks from the jury venire itself; Justice Powell's opinion for the Court stressed the importance of excluding racial prejudice from the jury process. "The harm from discriminatory jury selection extends beyond that inflicted on the defendant and the excluded juror to touch the entire community.

Selection procedures that purposefully exclude black persons from juries undermine public confidence in the fairness of our system of justice. Discrimination within the judicial system is most pernicious because it is 'a stimulant to the race prejudice which is an impediment to securing to [black citizens] that equal justice, which the law aims to secure to all others. ' " (72 A.B.A.J. 68, July, 1986) With the Court's ruling new standards were set that required the defendant to show: -- That they are members of a cognizable racial group and that the prosecutor has exercised peremptory challenges to remove from the venire members of the defendants' race -- The defendants may rely on the fact that peremptory challenges are a jury selection practice which allow those who are minded to discriminate to do so -- That these facts and any other relevant circumstances raise an inference that the prosecutor used that practice to exclude the venire men from the petit jury on account of their race. (Batson vs. Kentucky 476 U.S. 79 [1986]) There were also cases that tried for a prima facie but did not succeed. All blacks were dismissed from the jury, but no racial issue was raised because the killing involved a black defendant and a black victim and a black witness (Commonwealth vs. McKendrick 514 A. 2d 144 (Pa. 1986).

When there are sufficient bases for striking black jurors, for example, one was acquainted with a witness, a second had a brother and sister convicted the county, and a third indicated he was familiar with an officer involved in the case, no prima facie can be established (Phillips vs. State 496 N.E. 2d 87 [Ind. 1986]). Another requirement to serve on a jury is citizenship. In all states and Federal Districts, jurors must be citizens of the United States, either by birth or naturalization. Service as a juror is not permitted until final citizenship has been awarded, and the jurors must also be a citizen of the state where he is to serve. As a general rule, the list of jurors is selected from the list of registered voters, so the problem of citizenship seldom arises in the selection or qualification of a jury.

Although the length of residence required for eligibility varies, you will seldom, if ever, be called upon to serve as a juror unless you have registered to vote at the last general election. Literacy is yet another requirement. All states have a requirement that jurors be able to read and write the English language. In practice, this requirement is often overlooked, just as it is in the case of prospective voters, and it sometimes happens that a man who can barely write his name is selected to serve as a juror particularly in states where his qualifying questionnaire is completed by the clerk or other government employee and not under the supervision of a judge. Occupation is important because persons whose duties to the public prevent them from leaving their employment for a period of time necessary to serve as jurors usually are excused, and in some states they are actually disqualified and are not permitted to serve. Persons in such circumstances or positions will be either: 1) EXEMPT from jury duty, and excused in any case in which called to serve; 2) DISQUALIFIED, and barred from serving on any jury at any time, in any case; or 3) REQUIRED to serve.

Alan M. Rubenstein, a county District Attorney, says "No matter what their race, ethnicity or gender, jurors bring their biases to the courtroom and peremptories are needed to sort out individuals who, in the lawyer's judgment, will be overcome by their prejudices" (The Legal Intelligencer, April, 1997). Not only do people experience different aspects of life that could interfere with their choices; many people are reluctant to answer probing questions during voir dire with honesty. They may feel as if they are put on the spot and respond differently than if they were under a more social setting. Many attorneys and legal scholars claim that an impartial jury is unattainable. The first step taken was to define peremptory challenges with more alertness to possible bias. The next step up for debate is whether the 200 year old tradition should be eliminated altogether.

No decision has been made yet, but opinions have been widely spread on the matter. Peremptory challenges have become "a cloak for discrimination" and should be abolished, former Philadelphia Bar Association Chancellor Andre L Dennis told the city Human Relations Commission at a hearing on racial bias in the court system on October 13, 1998. And Wanda E. Flowers, co-chair of the bar association task force, called for greater awareness of "subtle racism which leads to unconscious discriminatory conduct" (The Legal Intelligencer, Oct., 1998). Many lawyers conclude that the peremptory challenges are long, drawn out, and arbitrary.

An impartial jury is not the goal during voir dire. Attorneys are looking for people who are most likely to convict or not to convict. Peremptory challenges take away from the "jury of one's peers". Sifting through people to find the most qualified is not taking a random sample of the community. The defense deserves the right to a trial as fair and impartial as possible. Random selections do not allow attorneys to identify possible bias due to past experiences.

Through voir dire certain biases by the juror can be detected and removed. A person may not want to admit their prejudices against a certain group of people because of embarrassment, but peremptory challenges allow lawyers to dismiss those who are ambivalent about certain questions. Abolishing peremptory challenges may not setup for the perfect jury, but it is a start. Jurors should remember that in asking what may seem intimate and personal questions, the lawyers are merely performing a service which they are bound to do to the best of their ability. Any prying into the personal affairs of a juror is unintentional, and is done only for the purpose of protecting the lawyer's client. The lawyer will, of course, attempt to keep the questioning on the friendliest basis, since his object is to win friends and not to alienate the feelings of the other juror whom he is questioning or of any other members of the jury.

There are twelve suggested steps to help attorneys overcome biases. They are 1) ride the wild pony; 2) break the stallion; 3) the Spielberg method; 4) the conscious mind appeal; 5) the unconscious mind appeal; 6) seeking similarities; 7) modern forensic principles; 8) inspiring, influencing, instructing and empowering the jury; 9) filling gaps in the evidence; 10) creating, adapting and anchoring themes; 11) structuring power themes; and 12) communicating persuasive themes which are designed to overcome bias. In the first step one must remember that it is easier to ride a wild pony in the direction that it is going rather than trying to change its course of action to fit yours. This is the basic concept of juror bias. If an attorney remembers that he will probably not be able to change the way a juror (wild pony) is thinking (going) and adapt his thinking (travel) to fit the juror (pony) the juror will be useful in the trial.

In doing this, the attorney and the juror become teammates who are striving for the same just cause. If one must insist on changing the way a juror thinks, the technique used is referred to as, breaking the stallion. When breaking the stallion one attempt to change a potential juror's opinion by giving them specific facts about a case in hopes that if they know more details their opinion will change. It makes potential jurors evaluate their own beliefs to see if they are correct. Attorney's also use the Spielberg Method, which is named after Steven Spielberg. In the Spielberg Method one must basically forgot about their beliefs for a short period of time, step away from their "normal reality".

It involves one setting aside their previous beliefs and establishing a new set of beliefs temporarily. This is a four step process which includes acknowledging the preexisting belief and justifies it, linking yourself to the preexisting belief, linking the client to the preexisting belief, use the link to the belief to build a temporary belief system which will last through the trial. When using the unconscious and conscious mind appeal one must remember that they are opposites. The unconscious mind is the emotions and the conscious mind is the logic. An attorney wants to talk to the unconscious part because the conscious part is where the biases and beliefs are located. The differences between the conscious and unconscious minds are the conscious mind can abstract, it knows the difference from reality and pretend, it is detail oriented.

Whereas the unconscious mind absorbs and records, it works on an emotional level, it deals with things only in the present. It is often characteristic for attorney's to ask about potential jurors hobbies in hopes that they will have something in common. Attorney's use similarities to overcome biases. If the juror feels they have something in common with the attorney it helps them to attain a feeling of "liking" which helps the conscious and unconscious mind.

Attorney's should adopt a "theme" in the voir dire examination and follow it throughout the trial. The theme if followed lessens the chances of gaps, and it helps the jurors to think in the same manner as the attorney's. In doing so this will eliminate the need for jurors to resort to bias. Jurors are often trying to make sense out of the environment and inconsistencies.

They are influenced by the way things are presented to them, the tone in which it is presented and the quality of the presentation. Jurors take all of this into consideration when making a decision. Abramson, Jeffrey (1994). "Why jurors are wiser than judges" The Economist, Nov. 12: pg. 117. Arkin, Marc (1996). "Order in the Court" City Journal, Vol. 6, No. 1: pg 13.

Booth, William (1994) "Bias and Race Still Pertinent As 3rd Beckwith Trial Opens" The Washington Post, Jan. 21: pg A 2. Breck, David (1988) "Peremptory Strikes after Batson vs. Kentucky" ABA Journal, April: 74 ABAJ 54. Bryant, Tim (1990) "Convict wins Appeal; Cited Race Bias in Jury Selection" St. Louis Post-Dispatch, Oct. 17: pg 3 A e.g. elko, Bob (1999) "Bias in jury selection gets harder to prove" The San Diego Union-Tribune, June 29: pg A-3... Hager, Philip (1989) "Sharp Discord Marks Justices' Rulings on Race" Los Angeles Times, Nov. 2: Part A; pg 1; Column 3. Hager, Philip (1986) "Court's term marked by blows to race bias; justices ok affirmative action, ease challenges to discrimination in voting, pay, jury selection" Los Angeles Times, July 4: Part 1; pg 1; Column 2. Francis, Philip (1979) "How to serve on a Jury, Second Edition" Oceana Publications, Inc., Jun 19: pg 23 Gaudi no, Marie (1997) "Refusal to Ask Jurors About Racial Bias Is Harmless Error If Race Is Not a Factor in Case" New Jersey Lawyer, June 23: pg 20.

Lewis, Peter (1992) "Judge Kills Bid To Study Race Bias In Jury Pools" The Seattle Times, May 30: pg A 9. Marcus, Ruth (1991) "High Court Bars Race Bias In Selection of Civil Juries; Ruling Says Skin Color No Test of Impartiality" The Washington Post, June 4: pg A 1 Riccardo, Michael (1998) "Dennis: Get Rid Of Challenges Without Cause" The Legal Intelligencer, Oct. 14: pg 1. Smith, William (1997) "Useful or Just Plain Unfair? The Debate Over Peremptories; Lawyers, Judges Split Over the Value of Jury Selection Method" The Legal Intelligencer, April 23: pg 1. Smith, William (1997) "McMahon Plays Opposite Side of Batson Fence" The Legal Intelligencer, April 9: pg 1. Stewart, David (1986) "Court rules against jury selection based on race" ABA Journal, July 1: 72 ABAJ 68.

Zwillman, Blair and Albin, Barry (1999) "Legislature Sould Defeat Proposal To Reduce Peremptory Challenges" Nov. 29: pg 23. Batson vs. Kentucky 476 U.S. 79 (1986). web web.