What Is Jury Selection? Choosing Twelve People Who Have Not Decided Yet

A pool of potential jurors is summoned from lists intended to represent the community, typically electoral registers, licence records or similar, and attendance is compulsory. From that pool a panel is drawn for a particular case. Those who cannot serve are excused, for reasons including hardship, prior involvement in the case, or a relationship with anyone concerned. The remainder may then be questioned, in some systems briefly and by the judge and in others at length and by the parties, about anything that might affect their judgement, including what they already know about the case and their views on relevant matters. Challenges follow, removing individuals from the panel, and the process continues until the required number remains. The whole procedure is public in most systems, which is itself a safeguard.

Two mechanisms remove people and they work very differently:

• •Challenge for cause, which requires a stated reason indicating the person cannot be impartial, is decided by the judge and is unlimited in number
• •Peremptory challenge, which requires no reason, is limited in number and has been the source of nearly all the controversy
• •Grounds for cause include prior knowledge, relationships, employment and stated views that would prevent following the law
• •Peremptory challenges have been used to remove people on grounds that could not be stated openly
• •Several jurisdictions have restricted peremptory challenges heavily, and some have abolished them
• •Challenges to the whole panel are possible where the selection process itself was defective

Challenges requiring no reason can be used to exclude people by race, sex or other characteristics, and the record establishes that they were, extensively and for a long period. Courts responded by prohibiting the practice and creating a procedure under which a party suspecting discrimination can require the other to state a neutral reason, with the judge assessing whether that reason is genuine. The procedure has been widely criticised as ineffective, since almost any reason can be offered and judges rarely find one insincere, and empirical studies of strike patterns have continued to find disparities after the rule was established. That evidence is part of why several jurisdictions have restricted or removed the mechanism entirely, on the reasoning that a challenge requiring no reason cannot be policed. England abolished peremptory challenge in 1988 for related reasons.

The stated aim of drawing from a cross-section of the community is undercut at several stages before any challenge is made. The source lists themselves under-represent people who move frequently, who are not registered to vote or who lack the documents the lists are built from. Summonses fail to reach a substantial proportion of those selected. Excusal for hardship removes people who cannot afford to attend, since compensation is generally low and employers are not always required to make up the difference, which falls unevenly by income and by type of work. Disqualification rules exclude people with criminal records, which in some jurisdictions removes a large and unevenly distributed group. Each stage is defensible on its own terms and the accumulated effect is a panel that differs measurably from the community it is drawn from, which is a structural problem no amount of care during selection can fix.

Where questioning is extensive, an industry has developed around predicting how individuals will decide, and its existence complicates the stated purpose of the process. Consultants advise on which prospective jurors to remove, using demographic data, questionnaires, social media and in some cases mock trials with matched panels, and the practice is expensive enough that access to it is unequal between parties. The evidence that any of it works is mixed, with research finding that individual characteristics predict verdicts weakly compared with the strength of the evidence, and that the most reliable predictor is what a person already knows or believes about the specific case. The deeper objection is about purpose, since a procedure designed to produce an impartial panel is being used by both sides to produce a favourable one, and the assumption that opposing efforts cancel out is an assumption rather than a finding.

A pool drawn from community lists is narrowed by excusal, questioning and two kinds of challenge, one requiring a stated reason and one requiring none. Challenges requiring no reason were used to exclude people by race, and the procedure created to stop that is widely judged ineffective, which is why several jurisdictions abolished the mechanism. Individual characteristics predict verdicts weakly compared with the evidence.