The Broken Politics of Jury Selection

The right to trial by jury is guaranteed by Article Three of the US Constitution as well as the Fifth Amendment. Fair and impartial juries are a crucial component of the criminal justice system. Unfortunately, the process of jury selection can undermine the credibility of the jury by introducing both bias and discrimination.

According to information found on the American Bar Association website, jury selection begins when the court clerk summons twelve people on the jury list to the jury box. The judge then speaks briefly about the case, and the judge and lawyers then begin questioning the potential jurors. The process of questioning potential jurors is called voir dire– it is done to ensure that potential jurors are not biased or unfair. If either lawyer suspects that a juror might be biased in some way relating to the case, the attorney can ask the judge to dismiss the juror for cause.

The ABA goes on to explain that lawyers also have a specific number of peremptory challenges to dismiss a juror without stating a cause, but these are limited in number, unlike challenges for cause which can be requested on an unlimited basis.

In an ideal setting, attorneys and judges would not discriminate on the basis of race or sex in selecting jurors. Challenges for cause are meant to root out legitimately biased jurors, such as those who know someone that is involved in the case. They are not intended to be used to systematically dismiss jurors of color, or to ensure any kind of racial majority in the jury. Yet, discrimination on the basis of race remains a very real aspect of jury selection.

In the upcoming Supreme Court case Foster v. Chatman, the Court will examine the issue of racial prejudice in jury selection yet again. The Court previously found in Boston v. Kentucky that it is unconstitutional to strike jurors because of their race. The new case shows that racial prejudice in jury selection is far from a thing of the past. According to a recent Huffington Post article, the latest case shows damning evidence of attorneys in a 1987 Georgia murder case striking jurors because of race. The attorneys presented weak, unjustifiable challenges for cause, but all were accepted by the judge, with the result being an all-white jury convicting and sentencing a Black teenager.

The Foster v. Chatman case is notable because it provides concrete evidence of racial discrimination. The attorneys took notes labeling black jurors based on race and specifically rooted out every black potential juror. Many of the reasons listed to strike black jurors applied equally well to white jurors who were allowed to stay on the case.

Perhaps most revealing, and ultimately damaging, about this kind of racial bias is that the judge allowed it to take place. It is reasonable to assume that attorneys’ motives to win the case might prompt them to create the most favorable jury possible, by striking people who might not vote their way. But why are judges so willing to accept biased challenges for cause?

In the ideal system of checks and balances, the check on an attorney’s power in jury selection is the judge. Perhaps there is an inherent conflict of interest in asking the judge, who operates within and works for the criminal justice system, to oversee the process of picking a jury. Given the wealth of evidence showing that the criminal justice system is biased against black defendants, in terms of arrest rates, sentencing, death penalty convictions, etc., it seems unlikely that all judges can be entrusted to ensure that jury selection is a fair process.

Tellingly, racial discrimination in jury selection has been an enduring phenomenon, despite legal efforts to stop it. Studies have found that in some counties, there is no African American representation on the jury in 80 percent of criminal trials (Jefferson Parish, Louisiana, for one). In addition, some District Attorney’s offices appear to actually train their prosecutors to exclude racial minorities from jury service and then to hide their racial bias under bogus challenges.

While it is absolutely necessary to preserve voir dire challenges to excuse legitimate bias, the scope of these challenges should be greatly limited. Juries will function best, and promote justice most ideally, with minimal interference from attorneys and others motivated actors. People have a constitutional right to be tried in front of a jury of their peers–necessarily including people  who might look like them, or be from similar backgrounds. For prosecutors to handpick juries to deliver the verdicts they desire is to circumvent the purpose of having a jury in the first place. There is obviously a belief among prosecutors that minority jurors will be sympathetic to the defendant. This only means that prosecutors might have to do their jobs better to truly convince a  fairly selected jury that a defendant is guilty.

Minorities are part of our population, and thus deserve the same right to serve on juries as any other citizen. While minorities might have differing opinions about criminal justice, or provide unfavorable verdicts for prosecutors, this is simply the design and outcome of the jury system. We cannot feasibly root out all those who might disagree with us and still claim that we have a representative “jury of peers”. As with all elements of our legal system, jury selection can only promote justice inasmuch as we implement it fairly and without regard to our own biases and preferences.

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