In Britain the jury is called up randomly and allocated to cases by court officials rather than the actual participants of a court case (i.e. prosecution or defence). This makes sense, it means that the jury is random and therefore more likely to be impartial.
But in the states the Defence gets the choose the jury, the jury that they need to sway in their favour to prevent the defendent being found guilty. This strikes me as a really bizarre quirk of the system and potentially open to huge amounts of abuse. I read a quote once that said that one of the biggest parts of any case is selecting the jury (I have no cite and am not claiming it’s a fact).
Can anyone with greater knowledge of the American legal system explain this? Have I described the process accurately? What actually is the intention behind this practice?
Could you provide a citation to explain the basis of this statement? It does not accord with the law in the United States, nor my experience, nor (as you point out) is it just.
In actuality, juries in the United States (both civil and criminal) are selected by both sides, through a randomized process. Each side is permitted to decline jurors “for cause” (i.e., bias, a connection to the parties, etc.), and then each side also usually gets a set number of peremptory challenges.
The jury is selected by the court, but both the defense and the prosecution get a certain number of “challenges”, and can eliminate jurors. There are also some rules that govern why potential jurors can be challenged. So, no, the defence doesn’t get to choose the jury.
I suspect that you’ve got an incomplete picture… yes, the defense does have a certain amount of latitude to ‘choose’ jurors (or more accurately to reject jurors,) and lawyers could well have expressed the opinion that jury selection is the most important part of the trial.
However, as other posters have pointed out, the defense’s leeway to make choices is limited, and is posessed by the prosecution in roughly equal measure.
That’s not exactly how it’s done. A jury pool, or venire panel, is called up randomly and seated for voir dire, law french for “speak the truth.” The prosecution and defense each have an opportunity to question the venire members to ascertain if they have any biases or prejudices that would prevent them from sitting on the case.
Let’s say, for example, that I was a prospective juror in a bicycle theft case and I’d had 20 bicycles stolen from me in the last 2 years. I tell the defense attorney that I would never in a million years consider probation for a bicycle thief; in fact, I’d favor the death penalty. If I as a juror could not consider the full range of punishment if the defendant was convicted (assuming he’s eligible for probation), I have essentially declared myself ineligible to sit on that jury, and the defense has the right to stike me “for cause.” If the prosecutor was able to rehabilitate me as a juror through further questioning and get me to admit that I might consider probation in a rare case, the defense might not be able to stike me for cause anymore, and instead use a “peremptory challenge,” which is a strike for any legal non-discriminatory reason. Strikes for cause are unlimited, but each side only has a limited number of peremptory challenges.
Strikes aren’t limited to the defense, either. Say it comes out in voir dire that one of the venire members thinks bicycle theft shouldn’t be a crime, and would never convict someone of bicycle theft. The prosecution could strike that person for cause. If they merely said they “would have a hard time” convicting someone of bicycle theft and would “feel very, very bad,” the prosecution could strike that person with a peremptory challenge. The idea is that people with so strong a bias one way or the other that they could not serve are eliminated by strikes for cause, and the people mildly biased one way or the other are eliminated by peremptory strikes. The end result is that you’re left with something in the middle that’s arguably not overly biased either way. In a way, it’s not so much choosing a good jury as it is eliminating a bad one.
This is the procedure used in some form in most state courts, to my knowledge. Federal court is slightly different. There, the judge does all the questioning, although counsel for both sides often supply suggested questions.
Aside from the above corrections on how the practice actually works, the *intention * is to get an even fairer jury than you would randomly. When I’ve gone through it, the focus has been entirely on whether the juror can apply the law fairly, not whether they’re good for the prosecution or defense.
Of course, the lawyers of both sides try to gain advantage from the jury selection, but that’s not the idea. Mainly, it’s a recognition that you’re going to get some kooks or people with unreasonable biases, and not to let them upset the system.
preremptory challenge used to be a feature of the English courts too until a few years ago. Now the only grounds for objecting to a juror are prior acquantance or blood relationship with the defendant or court officials. The number of professions who are automatically excused has also been sharply reduced.
The extensive voir dire in the US system is probably a result of the lack of reporting restrictions on the media there. Here, once charges have been laid it is a contempt of court to publish material which would prejudice the defendant’s right to a fair trial and an impartial jury, e.g. speculations about guilt or innocence or details of the defendant’s past criminal record.
Great - thanks to everyone for clarifying my inaccurate picture of the situation. I was even about to post “my God, what a great idea! Britain should copy America on this” until I saw MkVII’s post that made clear why it isn’t quite as necessary here
I would only add that the trial judge must approve a for cause challenge. Even if trial counsel for, say, the defense feels that a prospective juror just couldn’t possibly be fair and impartial in deciding the facts of the case, that juror will not be dismissed for cause unless the judge agrees with that assessment.
Peremptory challenges also cannot be used in a discriminatory way (i.e. “I don’t want any blacks on the jury in my client’s case”), but most skilled trial counsel can come up with at least a semi-plausible, race-neutral reason for using a peremptory challenge.
