Chapt 12 Jury

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
Key terms to understand for this chapter
Challenges for Cause

Cross Section of Community Standard
Death-Qualified Jury
Jury List
Jury of Ones Peers
Jury Panel
Peremptory Challenge
Sequestered Jury
Procedures in the Justice System, Ninth Edition

By Cliff Roberson, Harvey Wallace, and Gilbert Stuckey
2010 Pearson Higher Education, Inc.

Pearson Prentice Hall - Upper Saddle River, NJ 07458
OBJECTIVES
After completing this chapter, you should be able to
Explain the meaning of a jury of ones 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.

INTRODUCTION
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 Ones Peers

Trial by Ones 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 necessary
for come from suppositions of legislative action.
Though not specifically provided, it is generally
conceded a jury is to comprise the accuseds peers.
yet few states have directly indicated this
More & more often, the concept of trial by peers is

directing the selection of juries.


Trial by Ones Peers
In recent years, a closer look has been taken at the term

Jury of Ones Peers and whether the requirement,
though not specific & formal in the statutes, is met.
the dictionary defines peers as ones equals, or those of
equal status; ones 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 ones peers.
At one time, only white males were qualified to serve
as jurors.


Trial by Ones 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 crosssection


Cross 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.


Cross 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 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

Tax assessors lists have been used, but criticized since

it 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 made
by personal contact or names furnished by friends.
To assure that the jury panel is truly a cross section
some courts require selection to be made from two lists.


Qualifications
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.


Qualifications
Some jurisdictions exclude persons who have served as

jurors during the preceding year.
this is to discourage the
professional jurors who
continually hang around
courthouses attempting
to serve on juries because
they have little else to do
whether there is anything
wrong with the professional
juror is subject to debate

Jurors vote by raising their hands

while deliberating in a jury room.


Obtaining 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


Obtaining 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
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 active
duty; 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 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 hardship
on 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
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 defense
attorney knows a juror is not
qualified, they may challenge
the jurors right to serve.
for example, it may be known
one of the jurors has been
convicted of a felony
Jury trial in a New Mexico State court.


Preconceived 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, and
the 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.



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.



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 had
not 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.


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



Bias
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 a
juror may admit to having
because of a dislike for a
race, religion, national
origin, or class
Courtroom with trial in session, lawyer talking to jury.



Opposition 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.


Opposition 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.


voir 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
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
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
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
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
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 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
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 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
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 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.

SUMMARY
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.

SUMMARY
(cont.)

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.

(cont.)
SUMMARY
The primary reason for sequestering a jury is to
eliminate possible outside influence.


Chapter End

Chapt 12 Jury

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Chapter Twelve

Challenges for Cause

Procedures in the Justice System, Ninth Edition

2010 Pearson Higher Education, Inc.

2010 Pearson Higher Education, Inc.

Unless a change of venue is granted because an

2010 Pearson Higher Education, Inc.

A Jury of Ones Peers

The only jury qualification set forth in the Sixth

More & more often, the concept of trial by peers is

2010 Pearson Higher Education, Inc.

A Jury of Ones Peers

In recent years, a closer look has been taken at the term

As long as the jury is made up of persons representing

2010 Pearson Higher Education, Inc.

A Jury of Ones Peers

Most states did not permit women to serve on juries until

2010 Pearson Higher Education, Inc.

A Jury of Ones Peers

What is a truly representative body? was partially

2010 Pearson Higher Education, Inc.

A Jury of Ones Peers

Many states have adopted the cross section of the

The Court has also stated that it is part of established

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

Jury selection procedure varies among states and even

Supreme courts of some states have held use of voter

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

Tax assessors lists have been used, but criticized since

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

Though individual qualifications may vary among

The person must be in possession of natural faculties.

Some states hold a decrepit person may not qualify.

A person must also be of ordinary intelligence to

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

Some jurisdictions exclude persons who have served as

Procedures in the Justice System, Ninth Edition

Jurors vote by raising their hands

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

Because of the number of persons who do not qualify

Courts recognize there is no ideal way to select jurors.

2010 Pearson Higher Education, Inc.

Jury Panel or Jury List

When the selection of prospective jurors is completed,

If the person does not appear as directed, a contempt

Procedures in the Justice System, Ninth Edition

2010 Pearson Higher Education, Inc.

Exemption from Jury Duty

Many persons are qualified to be jurors, but are exempt

Those persons exempt from jury duty do not have to

2010 Pearson Higher Education, Inc.

Exemption from Jury Duty

Some state statutes do not designate any class of

Since it is a civic duty to serve when called, a person

Procedures in the Justice System, Ninth Edition

2010 Pearson Higher Education, Inc.

Challenging Jurors for Cause

Jury trial in a New Mexico State court.

2010 Pearson Higher Education, Inc.