Jury Selection is a Misnomer
Cambridge Criminal Lawyer Explains Jury Selection
How is the Jury Selected for a Trial in Massachusetts?
If you are charged with a criminal offense, you are naturally curious about how the lawyers will select the individuals who will determine your fate. What exactly is the jury selection process? How do defense lawyers determine who will sit on your trial? How can the judge, the prosecutor, and your ensure that these jurors will judge the evidence fairly? How do defense lawyers uncover the biases of these jurors?
Jury selection is a misnomer. We do not select a jury. We either challenge potential jurors for cause or use peremptory challenges to eliminate jurors we believe will favor the prosecution. The jurors who remain, after the defense lawyer and the prosecutor have exercised their challenges, are sworn in as the jury. As you can see, we do not actually select anyone.
Who Summons These Potential Jurors?
In Massachusetts, the Jury Commissioner for the Commonwealth selects at random Massachusetts residents who are eighteen years of age or older and speak English to report for jury duty. A resident need not have registered to vote in order to be summonsed to jury duty.
How Do the Court and Lawyers Unearth the Biases of Those Summoned for Jury Duty?
Each individual summonsed for jury duty is obligated to complete a juror questionnaire. The questionnaire is quite simple and can be completed in just a few minutes. Most of the questions are not overly intrusive and, therefore, the answers are not very helpful to the attorneys in determining whether the potential juror possesses a bias that would disqualify him for jury duty. Those summonsed for jury duty are required to provide basic background information on matters such as:
- Highest level of education
- Employment or school status
- Marital and parental status, including the ages of any children
- Spouse’s highest level of education
- Spouse’s employment or school status
- Involvement of any household or family member in any prior legal proceedings, including any criminal charges, civil proceedings, and prior jury service
Finally, the questionnaire asks whether the individual’s background, experience, employment, training, education, knowledge, or beliefs might affect his ability to serve as a fair and impartial juror.
The answers to these questions provide clues to the potential juror’s likely prejudices, level of intelligence, and fitness for jury duty. From a juror’s answers, demeanor, attitude, attire, and command of the English language, criminal defense lawyers and prosecutors attempt to divine his biases, aptitude, and abilities. Contrary to the commonly held belief that for criminal defense lawyers the more-dimwitted-the-better, defense lawyers prefer jurors with high levels of education, especially those who likely possess well-developed analytical skills. Just as criminal defense lawyers are apt to challenge or strike those who would likely side with the prosecutor (i.e., police officers, meter maids, security personnel, etc.), prosecutors are apt to challenge those who are likely to favor the defense (i.e., those who have been charged with criminal offenses, those who appear anti-establishment, etc.).
How Does a Lawyer Challenge a Potential Juror for Cause?
During the jury selection process, the defense lawyer and the prosecutor usually stand at side bar (to the side of the judge’s bench). There, they quietly discuss the potential jurors’ answers to the questionnaire. If a potential juror’s answers raise concerns about his impartiality or fitness to serve as a juror, the judge instructs a court officer to escort him to the side bar. There, the judge (and, perhaps the lawyers), will question the juror about the troubling answers or information provided. If the juror fails to dispel the judge’s concerns about his fitness to serve on the jury, the judge will likely eliminate him from further consideration. If the juror allays the judge’s concerns, he will ask the defense lawyer and the prosecutor if they have any objections to the juror sitting on the jury. If either lawyer challenges the potential juror for cause and persuades the judge that the juror is unfit for jury duty the judge will dismiss the potential juror from the jury pool.
How Does a Lawyer Use a Peremptory Challenge?
Peremptory challenges bestow on both the prosecutor and the criminal defense lawyer the right to strike a potential juror from the jury without providing a supporting rational. In Massachusetts District Courts, lawyers are awarded only two peremptory challenges. In contrast, Massachusetts Superior Courts allot peremptory challenges according to the specific criminal charge. Where the defendant is charged with a crime punishable by life in prison (such as murder), the court allots defense counsel and the prosecutor twelve peremptory challenges. In nearly all other cases, the Superior Court allocates four peremptory challenges per side. Once potential jurors are seated in the jury box, the prosecutor is afforded the opportunity to use his peremptory challenges. The stricken jurors, if any, are replaced with new potential jurors. The Court then allows the criminal defense lawyer to use his peremptory challenges. The stricken jurors are, again, replaced. If the prosecutor has any unused peremptory challenges, he can use them at this time – but only on jurors he has not previously had an opportunity to challenge. Any potential jurors are, once again, replaced. The process repeats itself until either both sides exhaust their peremptory challenges.
Are There Any Limitations on Lawyers Using Peremptory Challenges?
Yes. Lawyers are not permitted to use peremptory challenges to strike a juror because of his race or gender. If a lawyer attempts to strike a juror, such as a black person, from the jury he may be required to provide the judge with a race or gender-neutral reason for exercising his peremptory challenge.
The Final Jury
At the conclusion of the jury selection process, the trial judge will ask, in open court, both the criminal defense lawyer and the prosecutor if they are satisfied with the jury. Even if the defense lawyer is dissatisfied with one or more of the jurors, he will feel compelled to answer that the jury is satisfactory to the defense; After all, he cannot risk alienating any jurors by declaring that he believes that they will judge his client unfairly. The clerk swears in the jury.
Jury Deliberations
Once both the prosecutor and criminal defense lawyer rests, and the judge advises the jury on the applicable law, the jury retires to the deliberating room to discuss the case. The jurors are, essentially, sequestered during these deliberations. In the vast majority of cases, jurors are permitted to return home at the end of each day if they have been unable to reach a verdict.
How Do I Get Out of Jury Duty?
We need intelligent, educated, and decent folks to serve on our juries. If you are able to persuade a judge to dismiss you from the pool of potential jurors, you deprive us of your wisdom, life experience, and insights. It would be indeed very unfortunate if an innocent individual were to be convicted because those who might prove to be outstanding jurors had managed to evade jury duty.
Kevin J. Mahoney is a Massachusetts Criminal Defense Lawyer.
