Criminal defendants are entitled to a jury of their peers. Those jurors are practically drafted, called as a result of having registered to vote or even after obtaining a drivers’ license. Failing to answer a jury summons is a crime, and “getting out of jury duty” is not an easy matter.
Yet all courts provide for the questioning of potential jurors to expose reasons why the individual might not make an ideal juror—one who can be impartial and fair. To that end, lawyers and the judge question each would-be juror, looking for evidence of impermissible bias. When such bias is uncovered, the individual will be excused “for cause,” which means that the lawyer making the challenge can articulate to the judge an acceptable reason for rejecting that person.
This article explains the common “for cause” grounds, and also explains a second type of challenge, known as a “peremptory” challenge. In the latter, the prosecution and defense need not articulate a reason for dismissing a potential juror, yet they may not do so for a legally-suspect reason (which often lurks below the surface).
The crowd of people who show up at the courthouse with jury summons in hand are known as “venirepersons,” which means that they are potential jurors (the group is called “the venire). In large courthouses in particular, it’s common for venirepersons to be given a form to complete, which asks a number of questions regarding the individuals’ personal circumstances. At this point (if not before, upon receiving the summons), a potential juror can ask to be excused due to the need, for example, to tend a sick family member or to take care of small children. The judge, sometimes in consultation with the lawyers on the case, will review these questionnaires and excuse venirepersons as appropriate (often with a promise that they’ll be called again soon).
In cases where the stakes are high and the lawyering relatively sophisticated, the potential jurors’ questionnaires may also include questions from the prosecution and the defense, each designed to elicit information about the individual that the lawyers will delve into more deeply when face-to-face questioning begins.
Courtroom Questioning & Challenging for Cause
Once the venire has entered the courtroom, the questioning begins (in some courthouses, the judge conducts all of it; and in some places, lawyers are restricted to written questions only). The questions are designed to elicit bias and predisposition. “For cause” requests for a dismissal will be granted by the judge if the potential juror reveals evidence of the following:
- Personal knowledge about a party to the case or someone connected to the case. Here, the problem is that the venireperson’s relationship might cloud his or her ability to view the evidence impartially. For example, the prosecutor’s next-door neighbor would ordinarily be excused for cause, as would someone related to a key witness.
- Personal experiences that might affect the person’s ability to judge the case. While a venireperson’s experience with the subject matter of the case might make that person an informed juror, it might also make him a biased one. For instance, someone who has himself been the victim of a similar crime might be prone to project his trauma onto the alleged victim, coloring his ability to weigh the victim’s credibility.
- Inability or unwillingness to follow core legal principles, such as the presumption of innocence or the defendant’s right not to testify. No matter how often the judge will tell them otherwise, some venirepersons are certain that “Where there’s smoke, there’s fire” (the police don’t arrest people who have not committed crimes), and “If he didn’t do it, why didn’t he take the stand and say so?” Someone who refuses to abide by these core principles of criminal justice will be excused.
- Refusal to consider the sentence, including the death penalty. Venirepersons will be excused if they indicate that they will not convict in view of the sentence that might result. Such sentiments surface in drug use cases, for example, where some people feel quite strongly that personal use of illegal drugs should result in treatment, not incarceration. And if the case is a death penalty case, people who categorically state that they will never impose a sentence of death should be excused.
- Critical and extreme feelings about the judicial system or government. Now and then, a venireperson expresses extreme dissatisfaction with these institutions, to the point that it’s clear that they are unlikely to be helpful and committed jurors.
- A predisposition to believe police officers or other individuals involved in the case. A venireperson who states that he would naturally believe a police officer’s account simply because it comes from a police officer is predisposed towards one side from the beginning. This person will be excused for cause.
- An unfavorable predisposition towards the defendant’s race, lifestyle, or occupation. Here, the venireperson starts with a bias that may never be overcome, no matter what the evidence shows. Examples are numerous and nasty: The venireperson who says, “I know many members of [that ethnic community], and they’re all scammers,” or “I’ve had enough experience with people who [live like that] to know never to trust them.” This can be prejudice in its meanest form.
- Exposure to pre-trial publicity. Criminal cases sometimes generate extensive pre-trial publicity, with talking heads expounding on the evidence, the defendant, and the probable outcome of the case. People who have watched, read, or listened to such accounts may have formed opinions that will be hard to put aside. This is one reason why notorious trials are moved away from the city in which the crime allegedly occurred, in hopes that people living elsewhere may not have been exposed to such fare.
While the prosecution and defense have an unlimited number of “for cause” challenges, each side also has a set number of “no cause” challenges. These are known as peremptory challenges, which are ways to get rid of jurors who present no obvious evidence of bias or unsuitability. Lawyers need not articulate any reason for using a peremptory challenge (more on that below). Logically, it makes no sense to give the parties this power: If the judge has already weeded out the clearly unsuitable venirepersons, why should the lawyers need wild-card challenges too?
A candid answer might be that it gives the lawyers an opportunity to catch would-be jurors who are in fact biased but who have avoided being tossed out for cause. For example, imagine a defense lawyer who challenges a would-be juror whose brother-in-law is a prosecutor. The venireperson assures the court that she could be fair, and the judge denies the challenge. Convinced that the juror would not be fair, the defense attorney uses one of his peremptories to excuse her. Another theory for the use of peremptories is that by letting each side dispense with the most unacceptable members of the jury, it results in a more middle-of-the road jury, one not subject to extreme views.
Although lawyers don’t have to give a reason for using a peremptory, they may not use them in order to rid the jury of people of a certain race, religion, gender, or other protected status. If a pattern begins to emerge—the prosecutor excuses every Black juror but no White members—the judge will intervene. On the other hand, it’s perfectly okay to act on a hunch as to the “real motives” of the person hoping to be a member of the jury (as long as that hunch isn’t based on that person’s protected status).
Questions for Your Attorney
- Why does our system insist on a jury drawn from a cross-section of the community? Isn’t that another way of saying that certain classes or races are homogeneous, that they all vote or think alike, so we need “some of each?” But not all Hispanics think or react the same way, nor do all women.
- If the defense lawyer fails to object to the prosecutor’s pattern of excluding people of a certain race, can we raise this issue on appeal if I lose?
- How can we find out whether an impermissible motive lay behind the prosecutor’s use of his peremptories? Can the judge question him?