Voir Dire: The Jury Selection Process
Also known as “voir dire”—an old French term meaning “to see to speak”—jury selection is a crucial criminal proceeding where the parties can gain a tactical advantage that potentially resonates throughout the entirety of the proceedings. The court, the state, and the defendant have an opportunity to affect the composition of the trial jury during the jury selection process.
During voir dire, the judge, the prosecution, and the defense interviews a pool of prospective jurors. Both the defense and prosecution can eliminate members of the jury pool using “for-cause” challenges and “peremptory challenges.”
A “for-cause” challenge requires proof that the prospective juror is unqualified for jury service. The party seeking to remove the juror has the burden of showing that they are not qualified. The opposing party may also argue against a juror’s removal.
A “peremptory challenge” allows the parties to remove prospective jurors without explicitly saying why. However, the parties are limited by law in the number of peremptory challenges they may exercise. In California, the defense and the prosecution each have 20 peremptory challenges for felonies punishable by death. The opposing party typically does not argue against the use of a peremptory challenge.
However, the law prohibits the prosecution’s exercise of a peremptory challenge if it was clearly motivated by racial discrimination.
Discrimination and The Batson Rule
In 1986, the U.S. Supreme Court held in Batson v. Kentucky that racially-motivated uses of peremptory challenges violated the defendant’s due process rights under the equal protection clause of the Fourteenth Amendment. When a party objects to a person’s use of a peremptory challenge based on racial discrimination, it is known as a “Batson challenge.”
But, the exercise of a peremptory challenge doesn’t require the prosecution to provide a reason for removing a juror, right? So, how can the defense demonstrate unlawful discrimination in the prosecution’s exercise of a peremptory challenge?
The defense can prove the prosecution’s discriminatory exercise of a peremptory challenge by presenting:
- Statistical evidence about the prosecutor’s use of peremptory challenges against minorities
- Questioning and interviewing jurors differently depending on their race
- Comparisons of eliminated minority jurors against uneliminated white jurors
- Inconsistent testimony and representations of the record by the prosecutor during a Batson hearing
- Other relevant factors that affect the issue of racial discrimination
Once the defense establishes a clear case of discrimination, the prosecution must provide race-neutral reasons for removing the juror. The trial judge is responsible for determining whether the state’s reasons were genuine or merely a pretext for discrimination.
Flowers and Jury Selection Moving Forward
The U.S. Supreme Court reversed the Mississippi Supreme Court’s judgment upholding the conviction of Curtis Flowers for the murder of four people. Writing for the majority, Justice Brett Kavanaugh said that the trial court’s application of the Batson factors was erroneous:
“In sum, the State’s pattern of striking black prospective jurors persisted from Flowers’ first trial through Flowers’ sixth trial. In the six trials combined, the State struck 41 of the 42 black prospective jurors it could have struck. At the sixth trial, the State struck five of six. At the sixth trial, moreover, the State engaged in dramatically disparate questioning of black and white prospective jurors.”
The Court found the removal of Carolyn Wright particularly troubling, noting that Wright’s characteristics positioned her similarly to the white prospective jurors—she favored the death penalty and a member of her family was a prison security guard. The Court found that Wright’s strike is suspect in light of the surrounding circumstances and the prosecutor’s history of exercising peremptory challenges.
“Our disagreement with the Mississippi courts largely comes down to whether we look at the Wright strike in isolation or instead look at the Wright strike in the context of all the facts and circumstances. Our precedents require that we do the latter…the Mississippi courts appeared to do the former” Justice Kavanaugh wrote.
However, other than clarifying that courts need to look at the Batson factors together, the Supreme Court’s ruling in Flowers does not appear to change the legal landscape on this issue drastically. Justice Kavanaugh also narrowed the application of the opinion, stating “All that we need to decide, and all that we do decide is that…the trial court at Flowers’ sixth trial committed clear error in concluding that the State’s peremptory strike of black prospective juror Carolyn Wright was not motivated in substantial part by discriminatory intent. In reaching that conclusion, we break no new legal ground. We simply reinforce Batson by applying it to the extraordinary facts of this case.”
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