Jury selection

Before the Civil War (1861-1865), Massachusetts was the only state that permitted non-White individuals to serve on juries. After the war, most southern states enacted legislation that effectively barred Black Americans and other minorities from jury service, irrespective of the protections of the Fourteenth Amendment. Northern states tended to produce largely the same outcome mostly through the use of an exclusive venire (jury pool or panel of prospective jurors) process, whereby “prominent” citizens (which effectively left out minorities) filled out the roles, not allowing for equal protection under the law.

The exclusionary laws typical in the southern states were struck down when the U.S. Congress criminalized racism in jury selection in 1875. However, Congress left the exclusionary venire procedures common in the North unaddressed. These procedures soon became quite prevalent in the South as well.

New Reforms

Although nonexclusionary voir dire, meaning "to speak the truth" (the questioning of potential jurors during jury selection), became the standard guideline by the middle of the twentieth century, major changes were not initiated until the 1960s, when the United States Fifth Circuit Court began overturning convictions and indictments within its jurisdiction (mostly southern states) on the basis of exclusionary selection. Although the U.S. Supreme Court ruled in Swain v. Alabama (1965) that constitutional requirements were satisfied as long as minorities were on the venire and part of the grand jury that brought down an indictment, it was not until the Jury Selection and Service Act (1968) that Congress outlawed “blue ribbon” juries in federal courts. Consequently, the venire process had to be more open. In Taylor v. Louisiana (1975), the Supreme Court extended this requirement to the state and local courts.

Nevertheless, exclusion persisted through use of the peremptory challenge in petit (trial) jury voir dire—whereby attorneys have the right to strike potential jurors without stating any reason. Such screening of potential grand jurors is less prevalent. In Batson v. Kentucky (1986), the Supreme Court curtailed unrestricted use of peremptory challenge in petit juries by allowing judges to inquire as to the rationale for and to limit strikes (dismissals) of potential jurors when there appeared to be a pattern of exclusion. However, it is difficult to determine motivation definitively unless the prosecutor is unusually inept or unusually honest. The fact that more minorities have had adverse contacts with the criminal justice system can be used as a rationale for exclusion.

Consequently, some experts argued that “affirmative action” is necessary to guarantee representative juries. Others criticized this idea, saying that affirmative action in jury selection would translate into imposing quotas of minorities on juries, and some local jurisdictions did impose quotas on jury selection. However, in Holland v. Illinois (1990), the Supreme Court held that as long as the venire provided an appropriate cross section of the community, voir dire did not have to produce representative results because the Constitution merely guarantees equality of opportunity, not necessarily representativeness.

In the twenty-first century, jury pools are formed using voter registration lists and driver's license numbers. Individuals chosen from these lists must complete a qualification questionnaire, which is returned to the court. Most jurisdictions select twelve individuals to make up a jury panel.

Jury Nullification

The most potentially problematic issue in the late twentieth century involved the Fully Informed Jury Association (FIJA) and related initiatives. FIJA proponents tend to be opposed to governmental authority in that they try to encourage potential jurors—especially those who may be judging antigovernment activists—to ignore the facts or the law in order to acquit. This “jury nullification,” about which the government has no legal appeal (unless there is evidence of something like jury tampering), may contribute to even greater use of “scientific” jury selection. This innovation uses social research and psychological studies to profile and include or exclude (through peremptory challenge) jurors who may be more or less favorable to the case presented.

The jury nullification notions of the FIJA appear to be shared by some minority activists, who argue that members of their communities on juries judging their peers have a duty to vote for acquittal in almost all instances in order to redress the social injustices visited upon their community by the majority. Although this might accomplish nothing more than “hung” (unable to decide) juries—which permit the government to retry the cases—if minority members on subsequent juries act the same way, government efforts to convict members of the minority will be stymied. If such postures become widespread, racially based peremptory challenges might become acceptable with the rationale that these minorities have an antigovernment bias such that they cannot meet the requirement of impartiality.

Bibliography

Alschuler, Albert. "Racial Quotas and the Jury." Duke Law Journal, 1995, pp. 704-43.

Butler, Paul. "Racially Based Jury Nullification: Black Power in the Criminal Justice System." Yale Law Journal, 1995, p. 105.

Fukurai, Hiroshi, et al. Race and the Jury: Racial Disenfranchisement and the Search for Justice. Plenum, 1993.

"Juror Qualifications, Exemptions and Excuses." Administrative Office of the U.S. Courts, www.uscourts.gov/services-forms/jury-service/juror-qualifications-exemptions-and-excuses. Accessed 1 Nov. 2024.

"Juror Selection Process." Administrative Office of the U.S. Courts, www.uscourts.gov/services-forms/jury-service/juror-selection-process. Accessed 1 Nov. 2024.

Kennedy, Randall. Race, Crime, and the Law. Pantheon, 1997.

Rothwax, Harold. Guilty: The Collapse of Criminal Justice. Random, 1996.