Selecting a jury - the basics
I recently wrote about the O.J. Simpson verdict, and the number of jurors who knew about his prior murder trial. I know it comes as a surprise to many people to find out someone can be on a jury even when they know the parties, or know something about the case. One of the things you have to educate clients about is who can serve on a jury, and how you select them. We often hear people refer to a "jury of your peers". The fact is you never get a "jury of your peers" - unless you define peer to mean any member of the community.
Generally, anyone over 18 years of age, and who doesn't have a felony conviction, or theft conviction, is eligible to serve as a juror. You also have to be of sound mind (which is clearly subjective), and be able to read and write. In the past, you had to be a registered voter, but that is no longer the case; now you only have to be qualified to register. There are certain exemptions you can claim, but you don't have to. People over 65, those taking care of small children and full-time students can claim an exemption from jury service.
The term jury selection is a misnomer. No one gets to "select" jurors they want. A more accurate term would be de-selection. Each side is given a certain number of "peremptory" challenges. A party can use those to remove a juror for whatever reason they want. The only restriction is that you cannot remove a juror solely because of race. The number of peremptory challenges depends on the type of case. in felony cases, each side gets 10, while in misdemeanor cases each side gets 5.
The process of jury selection is called "voir dire", which basically means to speak the truth. Each side is allowed a certain amount of time to ask questions. The questions are generally aimed at uncovering the jurors' attitudes about issues that are important to the case. The questions are also directed toward uncovering jurors who may not be qualified to serve.
The process of removing a potential juror is through a challenge for cause. The grounds for such a challenge are generally set forth in the Code of Criminal Procedure. Art. 35.16 contains roughly 11 reasons for disqualifying a juror. Those include being related to a person in the case, being a witness, or having served on the grand jury that returned the indictment. Most of those challenges are fairly straightforward, and easy to decide. The tougher challenges are those that are more subjective.
One ground is that the juror has a bias or prejudice in favor of, or against the defendant. That can include many things. A potential juror may have a bias against the law - such as the right to testify. They might also have a bias for or against certain types of witnesses, such as police officers. A juror's prior experiences may also cause them to be biased against all defendants, or those charged with certain types of crimes. It is not unusual for individuals or family members who were involved in similar case (especially sexual assault), to be unable to serve. Ultimately, these decisions are made by the juror; they are the only ones who can know whether someone is going to interfere with their service.
Another basis is that the person has heard about the case, and based upon what they heard, made up their mind. Knowing something about a case does not disqualify a person. In highly publicized cases (i.e. O.J. Simpson), it is not unusual for many jurors to know something about the case. A juror is not disqualified unless they have already made their mind. Again, this is a decision that is ultimately left the individual juror.
After removing jurors with biases, and each side removing jurors they believe may favor the other side, the hope is you are left with in impartial jury. The process has problems. Lawyers need to have the opportunity and ability to uncover potential biases. Jurors also have to be honest, and willing to disclose their true beliefs. Once selected, jurors have to fairly evaluate the evidence, and set aside their personal attitudes and beliefs.
We need to always remember how lucky we are to have a jury system, where cases are decided by ordinary citizens. Some people want to limit,or take away that right. Let's hope they are never successful.
