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October 24, 2018 Articles

Musings on the Unpredictable Practice of Jury Selection

Or, “Ought there be a law?”

By Samuel W. Silver

At various points in my career, I have heard that somewhere out there in the world of trial lawyers, there is a breed that is so courageous or cavalier or reckless or whatever that, when given an opportunity to question potential jurors and exercise strikes to affect the makeup of the panel, this breed says, “I’ll just take the first 12.”

I have been at this for nearly 30 years. I have tried cases in state and federal courts in multiple jurisdictions. My trials have ranged from itty-bitty civil cases to death penalty cases, with a lot in between. I have yet to encounter a representative of the legendary “I’ll just take the first 12” breed. Thus, the baseline assumption underlying this article is that jury selection actually matters.

Of course, most of us prove with frequency and regularity that we value jury selection. At the extreme, many claim that cases are won and lost at jury selection. But without going that far, a sizable percentage of those who try cases dedicate at least some resources to jury selection. We hire consultants to advise us on the matter; we conduct focus group exercises with jury selection in mind (at least in part); we devise elaborate voir dire questionnaires that we ask judges to employ; we make up grids to assist us while we are questioning the venire; we rush to gather and analyze publicly available information regarding the venire; and we employ various strategies in using our strikes, hoping to both throw off our opponents and optimize our own odds of selecting ideal jurors.

Yet, for all the energy we devote to what we seem to think is an important aspect of our trials, the practice of jury selection is highly unpredictable. Simply put, there are precious few rules governing precisely how jury selection will operate. On issues ranging from who will do the questioning, to what questions will be permitted, to how the actual selection (or will it be “deselection”?) of the jury will occur, we lack basic guidance and uniformity.

This article discusses a few facets of jury selection that are among the most unpredictable and asks (directly or indirectly) whether jury selection is one area of the law in which we could stand having a few more rules.  

How Do You Pick Juries Here?

I’d venture that every lawyer who has been co- or local counsel for an out-of-towner in a case that approached trial has been asked this question. I’d also suggest that an honest response to the question always includes some form of equivocation. Why? Because in most jurisdictions, there is nothing written describing how, exactly, the mechanics of jury selection work. This, in turn, likely owes to the fact that the mechanics of jury selection often are decided on a judge-by-judge basis. The rules typically provide some very basic information, like how many jurors will be required and how many peremptory strikes each side will have. Some jurisdictions also have a standard juror information sheet that all members of the venire must complete. But beyond that, the mechanics of jury selection are usually unwritten—a secret only to be revealed to those who have the temerity to raise their hands at the final pretrial conference (or after) and ask, “How does Your Honor actually do jury selection?”

Of course, it is a good question, as there are many ways to “do” jury selection. In some courts, individual members of the venire are brought to the jury box one by one, questioned, and then decided upon right then and there, one at a time. In other jurisdictions, the entire venire is asked general questions, then some or all of the members of the venire are asked follow-up questions either in private or in front of one another, then the lawyers select (or deselect) jurors by passing a jury sheet back and forth. Sometimes only the judge asks questions, and sometimes the lawyers ask questions. Indeed, in some jurisdictions, judges do not even remain in the courtroom for jury selection—I have more than once heard a judge say something like, “You people know how to pick a jury. Tell my deputy to call me if you have a serious disagreement before you’re done.”

The point is that jury selection is something that we do regularly—every time we try a jury trial. And the mechanics of how it works should not be mysterious and should not need to change depending on the circumstances of a particular case (with perhaps some very rare exceptions, such as high-profile cases or cases in which there are serious safety concerns in play). So it strikes me as odd and unnecessary that there is so much court-to-court and judge-to-judge variability in this facet of jury selection. Wouldn’t it be simpler to have some uniformity here?

Though the downside of this lack of uniformity could be overstated, it does exist. At best, it creates a need for lawyers to ask the judge or the judge’s staff to explain how the process will work—and to hope that they understand the explanation. Often, too, it creates confusion while the process is unfolding in real time. Though this might not affect lawyers who try cases frequently before the same judge, it surely can cause others to lose track of the process and make mistakes. I once was involved in a federal trial in which confusion about the process shared by lawyers from the opposing parties led to a result where we all looked up and realized that we had selected a jury that contained one more juror than we had intended. Of course, this result did not cause an insurmountable hurdle. But it did add confusion and delay, and it did not need to be that way.

I suggest that a bit more uniformity in the mechanics of jury selection might go a long way.

 May We Do Individualized Voir Dire?

As mentioned above, one area in which there is great variability is whether and the degree to which individualized voir dire is permitted. In fact, there is enough variability that there are even multiple understandings of what is meant by “individualized” voir dire. For present purposes, I will define it as the opportunity to ask at least some questions of potential jurors in private, outside the presence of the remaining potential jurors.

The benefits of such a practice seem obvious. And although I have had more than one judge tell me why we were not going to do individualized voir dire, I have never heard a persuasive explanation.

The reason usually enunciated for why not to do individualized voir dire is efficiency. Taking each potential juror aside, sitting that person down, and asking questions in private surely takes additional time and keeps the rest of the venire waiting while it goes on. This is a legitimate concern.

On the other hand, there are strong reasons why individualized voir dire makes sense. Asking people questions close up, on a one-by-one basis, seems a much better way to get truthful answers—or at least to enable the lawyers to form judgments as to whether they are truthful answers. Relatedly, individualized voir dire also gives potential jurors the protection to speak openly beyond the watch of a roomful of strangers. Should we not want always to provide this measure of comfort to people who were randomly pulled in to participate in our process and on whom we rely for our process to properly work?

Individualized questioning of jurors also can serve the goal of efficiency. I know I am not the only lawyer who has spent a full day or more in non-individualized jury selection when a member of the venire answered a question in a manner that risked tainting the rest of the venire and therefore required the entire panel to be sent home and the process to be restarted the next day. This likely is not a frequent occurrence, but it does happen. Conducting individualized voir dire goes a long way toward preventing this.

We want jurors to be open and honest during voir dire. We want their candid answers, unaffected by perceived or actual peer pressure. We want their answers not to taint others. We want them to believe that we value them and are not subjecting them to public scrutiny. All of these ends are served by individualized voir dire. Does it really make sense to let a concern for efficiency tip the balance on whether we regularly have individualized voir dire?

What Electronic Juror Research May I Conduct?

Electronic research into the personal lives of potential jurors is a part of everyday trial practice now. (Some have even suggested that rules of professional responsibility require that we conduct such research.) I do not take sides here on whether this should be so. Rather, I suggest that it is an issue that merits serious consideration and that might be appropriate for the promulgation and application of rules ensuring uniformity of approach.

This is an important issue because it determines whether the playing field is level for the respective parties. Barring the imposition of limitations, those who have greater resources will be able to learn more about potential jurors than those who have fewer resources. This is not the only aspect of trial practice in which the imbalance of relative resources has real impact. But it is one of the newest areas, and it may be one that can be addressed so as to mitigate its significance.

So, too, the phenomenon of electronic research of jurors brings with it a new level of burden on potential jurors. Interrupting their lives to bring them into our workplace and give them speedy job interviews to see if they are fit for our needs is already invasive. But when we take the additional step of electronically searching all publicly available information—house purchase prices, court dockets, Facebook pages, etc.—are we taking this intrusion too far? Do we risk a situation where people resent (even more than they already do) the prospect of serving on juries—where they go to even greater lengths to avoid participating in our process?

It likely would be difficult to rein in the practice of electronic investigation of potential jurors. But it may not be impossible. Courts could limit the information provided to attorneys that enables them to launch their electronic searches. Or limit the ability to share that information outside the doors of the courtroom once jury selection begins and until it ends. There likely are other creative practices that could be employed. The first question, though, is whether we want to rein in this practice in the first place. Again, I do not answer the question. I merely propose that we should be giving it serious thought.

May I Ask This Question?

I have never encountered a judge who permitted lawyers to ask of jurors, “What religion are you?” Or any of the following: “What are your politics?” “Where do you stand on vaccines?” and “What do your kids do in their free time?” Likely most of us cannot imagine these questions being appropriate for jury selection.

Yet, twice within the past six months, I have found myself involved in discussions about the Trojan horse for these queries, the “bumper sticker” question: “Tell us what bumper stickers you have on your car.” In one of those discussions, I was told about a judge who would not permit the use of the bumper sticker question. In the other, a judge who is a friend told me about having recently used it.

The bumper sticker question is not new, and much has been written about its relative merits and demerits. There are many questions like it—“What TV shows do you watch?” and “From what sources do you get your news?” are two others that frequently are discussed. I am not here to take sides on whether the bumper sticker question or these others are appropriate. Rather, my point is that it is remarkable that we have very little consistency on whether such questions will or will not be permitted.

Lawyers will always be devising new questions to ask potential jurors in an effort to get to the same types of personal information that we crave. For this reason (among others), it is difficult to have absolute rules dictating what may and may not be asked during voir dire. But it is possible to at least have some guidance. New Jersey’s state courts, for example, have model questions for jury selection—and they include the bumper sticker question and many others like it.

The question, then, is why more courts do not provide such guidance. Why do we repeatedly prepare for trials in many jurisdictions without knowing whether we will be able to ask certain probing questions of the venire? Would it not be better to know this far in advance of when we conduct voir dire?


This brings me back to the central point of this article. We think that jury selection matters. We spend time and money on it and prepare for it as best as possible. Yet, so much about it is uncertain and irregular. I wonder whether this makes sense and whether trial practice, for all involved (including the parties and the jurors), might be better served if we thought about how we can make jury selection more predictable.

Samuel W. Silver is a partner at Schnader Harrison Segal & Lewis LLP in Philadelphia, Pennsylvania.

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