Understanding the Federal Jury Selection Process

In the United States, most people know that, if you have been charged with a crime, you are entitled to a trial before a jury of your peers. But what exactly does a “jury of your peers mean?” And how is that jury selected? If you are a defendant in a criminal case, selecting a jury can be the most important part of your case, because it is those 12 people who will decide if you are not guilty or guilty.


The federal jury selection process is governed by the Jury Selection and Service Act (or “Jury Act”) which took effect in 1968. Individuals are summoned to be part of the potential jury pool, or venire if they are registered to vote, and based upon their home addresses. Under the Sixth Amendment to the US Constitution, every American citizen is entitled to an impartial jury. This means the jurors cannot have any bias in favor of or against the defendant (or the government for that matter) for any reason.


Theoretically, a jury should represent a random cross-section of the population in the district in which the case is being tried, and are supposed to be impartial. That is, they do not favor one side or the other before hearing the facts of the case. But how are these jurors selected? Do they actually represent a cross-section of the community?


When a case goes to trial, the jury selection process is the first part which takes place. A random cross-section of potential jurors (called the “Venire”) are brought to the courtroom for a phase of questioning called “Voir Dire,” which means “to speak the truth” in Latin. The judge will initially ask each potential juror questions to establish that they are competent and physically able to serve as a juror. They will also be questioned about any possible bias they may have. For example, if it is a drug crime, they might be asked if they have any friends or relatives with a substance abuse problem. Or they may be asked if they ever had an encounter with police. Although it is not required by law, the Judge may also allow the attorneys to question the jurors. The lawyers questioning is designed to reveal any biases which the Judge did not try to discover earlier.


After the questioning is completed, the attorneys can ask that potential jurors be excused “for cause,” meaning there is a legally valid excuse for them not to serve, such as a bias against one of the parties in the case. Jurors may be dismissed for reasons of actual or implied bias, meaning they cannot set aside their personal feelings enough to be impartial. Actual bias is when the potential juror admits themselves that they will be biased. Implied bias is when a potential juror has certain traits or past experiences that will likely make it impossible for them to be completely neutral, such as if the potential juror was a police officer, or was ever themselves charged with a crime. Jurors may also be excused for cause in the case of a personal issue which prevents them from serving, such as impending surgery or a lack of child care. There is no limit to dismissals “for cause,” but the Judge may not always grant hose challenges and excuse the potential juror.

There is another way that attorneys can remove a potential juror, and that is through a “peremptory challenges.” This type of challenge permits counsel to dismiss an otherwise qualified juror for any reason, as long as it is not due to the juror being a member of a protected class such as race or gender. But these peremptory cahllenges are limited. In a typical felony case, federal law allows the defense 10 strikes and the government six. However, the number of peremptory challenges can be increased if there are several defendants being tried together, or the case is more complex than usual.

Through “for cause,” peremptory, and bias-related dismissals the jury pool will be whittled down to a number that fairly and reasonably represents the population of the district. It is from this remainder of potential jurors that the 12 person jury is selected, along with 2 or more alternate jurors. These alternate jurors will take the place of one or more of the 12 jurors if something happens during the trail and they are unable to serve. Rather than stop the trial and start all over, the alternate will substitute. Once both sides agree upon actual 12 person jury, the judge will swear in the jurors and the next phase of the trial, opening statements, will begin.

Jury selection is as much an art as it is a science. Counsel must have the ability to size up someone’s character, and ask them the appropriate questions, to determine if they are biased against the defendant. This involves good listening skills, an understanding of psychology and the human condition, as well as superior questioning skills. The jury selection process can be the most important part of a criminal trial, and you want to ensure you have an experienced attorney that knows how to properly select the people who will ultimately decide your fate. If you have been charged with a crime and are considering going to jury trial, please call me to discuss your options and to begin fighting for your rights.

Law Offices of Barry M. Wax