How Lawyers Choose - And Challenge - Jurors

It was an ordinary automobile collision case. Neither the judge nor the lawyers expected anything unusual, certainly not in the process of jury empanelment or selection. But the fourth juror asked to speak to the judge.

In keeping with the local practice, the lawyers and the prospective juror huddled at the side of the bench, out of hearing of everyone but the court reporter.

"Judge," the juror said, "this is going to be harder than I thought."

The judge silently raised a judicial eyebrow.

"What I mean," the juror continued, "is that I'm not sure how I'll decide the case. I'll be very uncomfortable."

"Uncertainty at this point is just what we want," the judge said. "You'll be fine."

As the juror walked slowly to the jury box, one of the lawyers spoke up. "I'd ask that you excuse this juror for cause; we don't want someone who is unhappy about being here."

"No," the judge replied. "Uncertainty and mental discomfort don't disqualify jurors."

Counsel considered her right to have the juror step down. This privilege, intrinsic to the American jury system, empowers each party to "challenge" or "strike" a given number of jury candidates peremptorily, without explanation or reason.

The number of "peremptories" varies with the location and type of trial. In Massachusetts, for example, each party in an ordinary civil case has four peremptories, more if the court seats alternate jurors, and still more if the party faces multiple opponents. Criminal defendants receive four challenges each, unless the penalty includes life imprisonment. Then the challenges equal the number of jurors (including alternates) to be seated; the prosecution's challenges match the total of all defendants' peremptories.

Unarmed robbery (weaponless mugging), for example, is a "life" crime. If the case involves two defendants, the minimum of available peremptory challenges is 12 for each defendant, plus 24 for the government, for a total of 48. This, added to the 12 who will be seated, means that to have enough jurors the court must call at least 60 people from the jury pool - and more, to allow for those with legitimate reasons not to sit.

Naturally, lawyers like to stockpile their peremptories. In states whose procedure allows attorneys to question the panel ("voir dire" - sometimes pronounced "vore dyer" - from the French "to see what is said"), they provoke self-disqualification of jurors they want to exclude. The process sometimes takes more time than the trial itself.

Ostensibly designed to ensure a prejudice-free jury, the untrammeled ability to affect the jury makeup leads to an understandable effort to obtain not neutrality, but a panel more likely to favor one's client.

Over the years, lawyers and psychologists have developed elaborate theories on the subject, some even backed by research. One Boston lawyer holds a contrarian view: "Sitting around, waiting to be called," he says, "jurors develop relationships that don't vanish when they're called into the box.

"When you challenge Juror X for what you consider good reasons, X's new friend, Juror Y, wonders what kind of a trickster you are. So you lose Y - and you don't even know it. Besides, when you stand up and say, 'We're content with this jury,' it tells the world you think your case is so strong that any 12 people will see it your way."

But legislatures and courts have begun to crimp freestyle peremptories. It started 20 years ago with the "one trial, one day" movement - jury service pared from one month to one trial (or one day if not chosen to sit) with every adult jury-eligible. Then, disabilities such as deafness or blindness no longer warranted automatic challenges.

Finally, lawyers were forbidden to exert peremptories that smacked of discrimination against an identifiable group. A prosecutor seeking to eliminate jurors sharing the defendant's race or ethnicity would lose the right unless able to articulate neutral ground for exclusion.

Waiting for the lawyer to decide her next move, the judge wondered whether the peremptory challenge itself was an endangered species. In England, it has virtually disappeared, with no visible change in the brand of justice. What would happen if peremptories vanished here? Jury selection would certainly be faster, but would it be as fair? Without the limited ability to control the proceedings, would civil litigants and criminal defendants feel themselves more helpless than ever in the face of an inscrutable judicial system?

"Your Honor," said the lawyer, interrupting the judicial rumination, "we challenge this juror."

*Hiller B. Zobel sits on the Massachusetts Superior Court.

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