One of the fundamental rights of an individual charged with a crime is the opportunity to have their case heard by a panel of their peers – typically referred to a jury. The jury selection process has gone through several iterations and is inconsistent among different jurisdictions.
The first step in selecting a jury is assembling a jury pool. Again, every jurisdiction can do this differently, but in most Washington courts eligible jurors are selected by individuals who are registered to vote or who have a driver's licenses. Juries used to be selected by individuals who were registered voters until there was information to suggest people were not registering to vote for the specific reason of not wanting to be selected for jury duty. Obviously this is concerning for a number of reasons. As a result, most jurisdictions now include individuals with driver's licenses to increase the jury pool size and as a means to not dissuade people from registering to vote. Individuals who are selected for jury duty are then sent notice to appear at a specific courthouse on a certain date and time or may be provided a phone number to call in order to see if they are needed for a jury.
On the day a jury is set to be impaneled (selected to hear a case) jurors are typically required to complete juror questionnaires. This usually includes place of employment, prior jury service, and other basic demographic information. A much larger pool than will actually be needed for a jury is then selected for the trial. The jury questionnaires may be reviewed by the attorneys prior to the potential jurors being brought into the courtroom. The jurors are also provided general instructions by the judge.
In some courts, the judge will ask a series of preliminary questions of potential jurors. These questions may include whether a juror has any experience with the type of case that will be heard; whether jurors believe they can be impartial; and if a juror will be able to follow the court's instructions. After this the process of voir dire begins. Voir dire is the process of selecting a juror. In most jurisdictions, courts are given a pre-determined amount of time to ask questions of the potential jurors. This time is usually split into two segments. As with all aspects of trial, the prosecutor goes first. There is a great deal of research that has been conducted to try to determine the most effective and best way to conduct voir dire. While there are numerous differing opinions, most would probably agree that there is not necessarily a right or wrong way to conduct voir dire.
One of the primary purposes of voir dire is to determine if any of the jurors have any bias. While most often the defense is the party talking about bias, a juror could potentially have bias in many different ways. If it becomes apparent that a juror has a bias that may interfere with the trial either party can move to dismiss the juror for cause. There is no limit on the number of jurors that can be dismissed for cause. Example of potential bias may be as obvious as a juror who believes anyone sitting in the defendant's chair must have done something wrong to more subtle bias such as statements that a police officer's only role is get people in trouble.
Both parties also have the opportunity to strike a certain number of jurors without providing any reason. This is called a peremptory challenge. Both sides are given the same number of challenges which can vary with the court. In some cases an attorney may be questioned as to the reasons for the peremptory challenges. This usually only occurs in cases where there are allegations of bias in the jury selection.
Perhaps the most common reason a parties challenges are questioned is the appearance of racial bias in the jurors that are being removed. Racial bias in juror selection has been a highly litigated issue, and the Supreme Court recently heard a case which has brought the issue to light again. The defendant in the case, Mr. Timothy Foster, was sentenced to death in the 1980s after an all-white jury found him guilty of killing an elderly white woman. After nearly 20 years in custody, Mr. Foster's legal team obtained documents from the prosecutor's files related to the jury selection. One of the most concerning pieces of information that was discovered is a key that was used to identify the race of the jurors. That coupled with the fact that the top five jurors listed in the “definite no's” were five out of the six black jurors in the potential jury pool. The court has yet to reach a decision on the matter. More information regarding the oral arguments can be found in an article published in November 2015 by CNN.