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Chapter Twelve Jury. Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up. — Harper Lee, To Kill a Mockingbird, 1960 . KEY WORDS.

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Chapter Twelve


Gentlemen, a court is no better than each man of you sitting before me on this jury. A court is only as sound as its jury, and a jury is only as sound as the men who make it up.

— Harper Lee, To Kill a Mockingbird, 1960

key words

Key terms to understand for this chapter…

  • Challenges for Cause
  • Cross Section of Community Standard
  • Death-Qualified Jury
  • Jury List
  • Jury of One’s Peers
  • Jury Panel
  • Peremptory Challenge
  • Sequestered Jury

After completing this chapter, you should be able to…

  • Explain the meaning of a jury of one’s peers.
  • Describe how a jury is selected.
  • Identify the reasons that a potential juror may be challenged for cause.
  • Define peremptory challenges and discuss the restrictions on the use of peremptory challenges.
  • Explain the rationale behind the sequestering of a jury.
  • Discuss the future of the jury system.
  • Explain how a jury panel is selected.
  • Before selection of a jury a few questions need to be answered.
    • Who are the persons who serve on a jury?
    • Where do they come from?
    • What qualities must they possess to qualify as jurors?
  • Unless a change of venue is granted because an impartial jury cannot be selected within that district, the fate of one accused of committing a crime rests with those in the judicial district where the crime was committed.
a jury of one s peers trial by one s peers
A Jury of One’s PeersTrial by One’s Peers
  • The only jury qualification set forth in the Sixth Amendment is that it be an impartial jury chosen from the judicial district in which the crime was committed.
  • Any additional qualifications believed necessaryfor come from suppositions of legislative action.
  • Though not specifically provided, it is generally conceded a jury is to comprise the accused’s peers.
    • yet few states have directly indicated this
  • More & more often, the concept of trial by peers is directing the selection of juries.
a jury of one s peers trial by one s peers6
A Jury of One’s PeersTrial by One’s Peers
  • In recent years, a closer look has been taken at the term “Jury of One’s Peers” and whether the requirement, though not specific & formal in the statutes, is met.
    • the dictionary defines peers as one’s equals, or those of equal status; one’s friends; or associates
  • As long as the jury is made up of persons representing a cross section of the community in which the trial takes place, it is regarded as comprising one’s peers.
  • At one time, only white males were qualified to serve as jurors.
a jury of one s peers trial by one s peers7
A Jury of One’s PeersTrial by One’s Peers
  • Most states did not permit women to serve on juries until they were granted the right to vote in 1920.
  • Persons of certain races, religions, and national origins were excluded, if not by statutory provision, then by those making the jury panel selection.
  • To overcome this, the federal government passed legislation stating no citizen shall be excluded from service on a federal grand or petit jury because of race, color, religion, sex, national origin, or economic status.
    • and are to be selected at random from a fair community cross-section
a jury of one s peers cross section of the community
A Jury of One’s PeersCross Section of the Community
  • “What is a truly representative body?” was partially answered by the Supreme Court in Fay v. New York:
    • “…there is a constitutional right to a jury drawn from a group which represents a cross section of the community.”
    • “…a cross section of the community includes persons with varying degrees of training and intelligence and with varying economic and social positions.”
    • “…the jury is not to be …the most intelligent, the most wealthy or the most successful, nor of the least intelligent, the least wealthy or the least successful.”
    • “It is a democratic institution, representative of all qualified classes of people.”
a jury of one s peers cross section of the community9
A Jury of One’s PeersCross Section of the Community
  • Many states have adopted the cross section of the community standard to meet the peer group regulation.
  • In Glasser v. US, the Court stated,
    • “The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross section of the community.”
  • The Court has also stated that it is part of established tradition in the use of juries as instruments of public justice that the jury be a body truly representative of the community.
jury panel or jury list
Jury Panel or Jury List
  • Jury selection procedure varies among states and even among districts within a state, though generally, no guidelines are set forth for selection
  • The official making selections has almost complete power over the names to be placed on the jury panel
    • for convenience, officials often use the voter registration list, but it is generally not required a juror be a registered voter
  • Supreme courts of some states have held use of voter registration too restrictive,
    • as many minority groups do not register to vote
jury panel or jury list11
Jury Panel or Jury List
  • Tax assessors’ lists have been used, but criticized sinceit has been held that property owners are more likely to be convicting juries than nonproperty owners.
  • Church membership lists have caused religious conflicts.
  • Some officials select names randomly from telephone books in the area, or some numerical sequence.
  • In sparsely settled districts, selections have been madeby personal contact or names furnished by friends.
  • To assure that the jury panel is truly a cross sectionsome courts require selection to be made from two lists.
jury panel or jury list qualifications
Jury Panel or Jury ListQualifications
  • Though individual qualifications may vary among states, the general qualifications are the same:
    • the person must be a citizen of the US, eighteen or over, &a resident of the judicial district for a specified time
  • The person must be in possession of natural faculties.
    • able to see, hear, talk, feel, smell, & comparatively mobile
  • Some states hold a decrepit person may not qualify.
    • determining when one has reached this condition is difficult
  • A person must also be of “ordinary” intelligence to qualify as a juror in most states, another nebulous term.
jury panel or jury list qualifications13

Jurors vote by raising their handswhile deliberating in a jury room.

Jury Panel or Jury ListQualifications
  • Some jurisdictions exclude persons who have served as jurors during the preceding year.
    • this is to discourage theprofessional jurors whocontinually hang aroundcourthouses attemptingto serve on juries becausethey have little else to do
    • whether there is anything wrong with the professionaljuror is subject to debate
jury panel or jury list obtaining jurors
Jury Panel or Jury ListObtaining Jurors
  • Because of the number of persons who do not qualify are exempt, or are excused, obtaining a sufficient number of persons for jury duty is not always easy.
  • Generally, it is the responsibility of the official in charge of the jury panel to determine whether the persons selected are qualified to serve or are exempt.
    • to facilitate this, many mail a questionnaire to the selected persons, requesting certain information
  • Courts recognize there is no ideal way to select jurors.
    • the system is acceptable if no groups of people are eliminated
jury panel or jury list obtaining jurors15
Jury Panel or Jury ListObtaining Jurors
  • When the selection of prospective jurors is completed, persons found competent are placed on the jury panel.
    • as each trial date is set, a number of these persons will be notified to appear in court on that date
  • If the person does not appear as directed, a contempt charge may result unless good cause is shown.
  • Usually, no fewer than 25 persons will be summoned.
    • if the charge is murder and the case has received wide publicity, as many as 100 persons may be summoned
exemption from jury duty
Exemption from Jury Duty
  • Many persons are qualified to be jurors, but are exempt from jury duty because of their occupations.
    • it is believed the functions they perform within a community outweigh their responsibility to serve on a jury
    • members of legislative bodies; armed services on activeduty; attorneys; ministers and priests; teachers; physicians; correctional officers; law enforcement officers; mail carriers; and most public officers.
  • Those persons exempt from jury duty do not have to claim the exemption and are free to serve as jurors if they so choose.
exemption from jury duty17
Exemption from Jury Duty
  • Some state statutes do not designate any class of persons who are exempt from jury duty.
    • but provide that the court has authority to excuse a person upon finding that jury service would entail undue hardshipon the person or on the public
  • Since it is a civic duty to serve when called, a person may not be excused for trivial cause or inconvenience.
  • The juror must continue serving until a particular trial is completed, even if it takes several more weeks.
challenging jurors for cause

Jury trial in a New Mexico State court.

Challenging Jurors for Cause
  • By the time jurors reach the jury box, it will likely have been determined they are qualified to act as a juror.
  • If anyone seated does not possess qualifications, that juror will be excused and another will replace him/her.
  • If either prosecuting or defenseattorney knows a juror is notqualified, they may challengethe juror’s right to serve.
    • for example, it may be knownone of the jurors has beenconvicted of a felony
challenging jurors for cause preconceived ideas of guilt or innocence
Challenging Jurors for CausePreconceived Ideas of Guilt or Innocence
  • One ground for challenging a juror is preconceived ideas about the guilt or innocence of the defendant.
    • the juror will be asked if he/she has formed an opinion regarding the guilt or innocence of the defendant
    • if the juror has, he/she will be challenged for cause, andthe judge will undoubtedly excuse that juror
  • Questioning of a prospective juror on a challenge for cause is often referred to as a “voir dire examination.”
challenging jurors for cause preconceived ideas of guilt or innocence20
Challenging Jurors for CausePreconceived Ideas of Guilt or Innocence
  • As stated by US Supreme Court in Irvin v. Dowd:
    • It is not required . . . that the jurors be totally ignorant of the facts and issues involved [in a case].”
    • “In these days of swift, widespread and diverse methods of communication, an important case can be expected to arouse the interest of the public in the vicinity, and scarcely any of those best qualified to serve as jurors will not have formed some impression or opinion as to the merits of the case.”
    • “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based upon the evidence presented in court.”
challenging jurors for cause preconceived ideas of guilt or innocence21
Challenging Jurors for CausePreconceived Ideas of Guilt or Innocence
  • In Sheppard v. Maxwell, from Chapter 7, the Court held the defendant was denied a fair trial, as in Irvin:
    • in Sheppard, extensive pretrial publicity accusing the defendant of the crime occurred even though he hadnot been arrested or charged with the crime
  • One newspaper described Sheppard as follows:
    • “now proved under oath to be a liar . . . still free to go about his business shielded by his family, . . . protected by a smart lawyer who has made monkeys of the police and authorities, . . . carrying a gun part of the time, . . . left free to do whatever he pleases.”
challenging jurors for cause preconceived ideas of guilt or innocence22
Challenging Jurors for CausePreconceived Ideas of Guilt or Innocence
  • As a result of these Supreme Court decisions, local courts have been encouraged to control information released to the news media.
    • this assists in picking jurors without preconceived opinions of the defendant because of pretrial publicity
  • Because of pretrial publicity, extensive questioning takes place to determine whether jurors have opinions that cannot be overcome by evidence presented at trial.
    • in some of the more notorious cases, it has taken several weeks just to select a jury
challenging jurors for cause bias

Courtroom with trial in session, lawyer talking to jury.

Challenging Jurors for CauseBias
  • Another ground for challenging a juror is bias, either implied or actual.
    • implied bias may include consanguinity or affinity to within the fourth degree to the victim or to the defendant.
    • actual bias is prejudice ajuror may admit to havingbecause of a dislike for arace, religion, nationalorigin, or class
challenging jurors for cause opposition to the death penalty
Challenging Jurors for CauseOpposition to the Death Penalty
  • Prior to Witherspoon v. Illinois, ruling if a juror was against the death penalty, challenge for cause could be made in cases carrying a death penalty.
    • Witherspoon maintained that persons not against the death penalty were more likely to be convicting jurors
  • The Supreme Court agreed with Witherspoon and held that having conscientious scruples against capital punishment was not sufficient cause to disqualify.
  • The phrase, “death-qualified jury” indicates a jury in which members have stated that, if appropriate, they would vote for the death penalty.
challenging jurors for cause opposition to the death penalty25
Challenging Jurors for CauseOpposition to the Death Penalty
  • Witherspoon greatly complicated voir dire examination of prospective jurors in capital punishment cases.
  • Some appellate courts have held that to constitutionally excuse a prospective juror for cause, the juror must make it unmistakably clear that…
    • the juror would automatically vote against the death penalty without regard to evidence presented
    • this attitude toward the death penalty would prevent the prospective juror from making an impartial decision on guilt
  • In Wainright v. Witt, the Supreme Court somewhat relaxed the strict rule of the Witherspoon decision.
challenging jurors for cause voir dire
Challenging Jurors for Causevoir dire
  • Some states have passed legislation permitting the trial judge to conduct the voir dire examination.
  • Some judges conduct no voir dire examinations, as they believe selecting the jury is the prerogative of the attorneys involved and interference is a denial of rights.
  • Most attorneys enjoy voir dire examinations, as it gives opportunity to become better acquainted with jurors.
    • some courts frown on this reason for voir dire examinations
premptory challenge
Premptory Challenge
  • There is one more opportunity to remove an undesired juror or jurors, known as a peremptory challenge.
    • prosecution & defense have a certain number of peremptory challenges that permit excusing a juror without stating reason
  • The challenges are granted on the theory that they assist attorneys in selecting an impartial jury.
  • Generally, the trial judge has no authority to prohibit a juror from being excused on a peremptory challenge.
    • however, the Supreme Court in Batson v. Kentucky held that an attorney may not use peremptory challenges to exclude persons from a jury solely on the basis of race
premptory challenge prohibiting the challenge
Premptory ChallengeProhibiting the Challenge
  • One state supreme court held
    • “…challenges may not be used to remove prospective jurors solely on the basis of presumed group bias.”
    • “…because they are members of an identifiable group distinguished on racial, religious, ethnic, or similar grounds.”
  • Batson did not eliminate all peremptory challenges to exclude from a jury persons of a defined group.
    • when it becomes apparent that such an attempted exclusion is taking place, the opposing side may question the procedure
  • The trial judge has the responsibility to determine whether there is a justification for the exclusions.
premptory challenge holding the challenge in reserve
Premptory ChallengeHolding the Challenge in Reserve
  • Both prosecuting & defense attorneys will usually hold one or two of their peremptory challenges in reserve.
    • a person who unsatisfactory may have his/her name drawn, leaving no way to disqualify this person for cause
  • To utilize their peremptory challenges effectively, both attorneys will question prospective jurors for cause as extensively as the court will permit.
    • to get a better idea of how a prospective juror may think or react in reaching a verdict
  • All attorneys in trials constantly try to analyze persons in an effort to determine who make the best jurors.
accepting jurors
Accepting Jurors
  • After prosecution & defense have exhausted challenges for cause, have no desire to further exercise peremptory challenges, and indicate to the judge they are satisfied, the jury will be sworn to perform their duty.
  • The oath administered to the jurors will in substance be that each of them will endeavor to reach a true and just verdict based on the evidence of the case.
    • after the jurors have been sworn in, the trial begins
  • Most jurisdictions administer the oath to the jury as a group, though some still swear jurors individually.
alternate jurors
Alternate Jurors
  • Often during a lengthy trial, one or more jurors become incapacitated and cannot continue.
  • If this happens and the defendant does not agree to continue the trial with those jurors who remain, the judge must declare a mistrial.
    • having to start trial again is frustrating as well as expensive
  • Most states have statutes providing that alternate jurors may be selected at the discretion of the trial judge.
    • selected & sworn in the same manner as regular jurors
  • Usually not more than four alternates are selected.
alternate jurors32
Alternate Jurors
  • Some states permit an alternate to be substituted up to the time the case is given to the jury for deliberation.
    • others permit substitution anytime before a verdict is reached
  • Using alternates has been criticized by some legal scholars, alleging it creates a jury of 13 instead of 12.
    • also because the alternate, knowing chances of substitution are slight, may not take much interest in the case and be unable to properly evaluate the evidence during deliberation
  • The alternate juror system was established because, in most instances, a defendant will not agree to continue a trial with less than a full jury.
sequestering the jury
Sequestering the Jury
  • Once the jury has been selected and sworn in, the judge must decide if it is to be sequestered, or locked up.
    • when sequestered, it is segregated from all outside contact to protect from possible outside influence in arriving at a verdict
  • Generally, when a jury is not sequestered, the judge has authority to forbid the jurors from reading newspapers or listening to broadcasts about the case.
    • if they should inadvertently read about or listen to something about the case, they are to disregard it
  • The jury may be sequestered at any time during the trial proceedings.
sequestering the jury34
Sequestering the Jury
  • If the jury is not sequestered during presentation of the evidence, it will usually be during the deliberation
    • when the trial pertains to a serious charge
  • Alternate jurors are sequestered as well, but generally separately from the regular jury.
  • Most jurors dislike being sequestered, and when that possibility is apparent, prospective jurors will do everything possible to be excused from that trial.
    • and selecting a jury becomes even more difficult than usual
future of the jury system
Future of the Jury System
  • Interviews with some serving on criminal juries reveal many become disenchanted with the jury system.
    • the common complaint concerns time waiting to be called for duty on a particular case
  • Many wait hours, even wait all day, in uncomfortable surroundings without being called, only to be ordered to return the next day to suffer a similar experience.
    • waiting usually stems from last-minute continuances, hearings on other motions presented, or plea bargaining
future of the jury system36
Future of the Jury System
  • Many believe average jurors are unable to cope with facts of the more complex trials, nor able to understand and abide by the instructions given them by the judge.
  • Some feel many jurors permit emotion & personality conflicts to interfere with judgment in reaching a verdict.
  • Many persons believe that our justice system would not come to a sudden halt if the jury system were abolished.
    • and verdicts decided by a body of three or more judges
  • As long as the Sixth Amendment guarantee to a trial by jury is in effect, the jury system will not be eliminated.

Important topics for this chapter…

  • The only qualification set forth in the Sixth Amendment is that a jury be an impartial jury.
  • The concept of a jury of one's peers actually refers to a jury that is selected fairly and impartially from a cross section of the community.
  • Procedures for selecting a jury vary from state to state.
  • Jurors must be US citizens, eighteen years of age or older, and residents of the judicial district for a specified period of time.



Important topics for this chapter…

  • Certain individuals are exempt from mandatory jury duty but may volunteer to serve on a jury.
  • Potential jurors may be challenged for cause based on the concept that they will not be fair and impartial.
  • Peremptory challenges may not be used to exclude a certain gender or racial group from a jury.
  • A death-qualified jury is one in which the members have stated that, if appropriate, they would vote for the death penalty.



Important topics for this chapter…

  • The primary reason for sequestering a jury is to eliminate possible outside influence.