From Pool to Panel

Jury Selection and Composition

From Pool to Panel

Jury selection moves through stages, and each stage narrows the group that the one before it produced. Officials first compile a list of potential jurors, called the jury list, the source list, or simply the jury pool.¹ From that list they summon a large number of people. The group summoned is the venire, and its members are chosen at random from voter lists or other demographic sources.² The final stage picks the trial jurors and alternates. Several dozen members of the venire are randomly assigned to a courtroom where a trial is about to begin, and the judge, the attorneys, or both question them in voir dire about their suitability for the case.³

In federal civil cases, Rule 47(a) governs that questioning. The court may permit the parties or their attorneys to examine prospective jurors, or it may examine them itself. If the court does the questioning, it must let the parties or their attorneys make any further inquiry it considers proper, or must itself ask any additional questions of theirs that it considers proper.⁴ On the basis of the answers, the parties may challenge jurors, which excuses them from serving on this case, and the purpose of voir dire and challenges, at least in theory, is to ensure that the jurors chosen are impartial.⁵

This unit follows the first two stages. It covers how the pool and the venire are built, and what a party can do when the building itself went wrong. Questioning and challenges to particular jurors come next. The chapter ends where the jury's work begins, with testimony. Witnesses must testify in open court unless a federal statute or rule provides otherwise, although for good cause in compelling circumstances and with appropriate safeguards the court may permit testimony in open court by contemporaneous transmission from a different location.⁶

Source Lists and the Venire

The 1968 Act states three goals for federal juries: random selection from a fair cross section of the community, an opportunity for every citizen to be considered for jury service, and no discrimination on the basis of race, color, religion, sex, national origin, or economic status.⁷ Each district court must draw up a plan to carry out those goals, and statutes prescribe many of the plan's details, including the jury wheel, the use of voter lists, and the jury commissions.⁸

Voter registration rolls are the primary source of names. Because not everyone eligible for jury service registers to vote, the rolls are sometimes supplemented with lists of licensed drivers, tax rolls, welfare rolls, and telephone directories.⁹

Each prospective juror then completes a qualification form prescribed by the Administrative Office of the United States Courts. Failure to complete it may bring fines and imprisonment, as may a willful misrepresentation of a material fact in an answer.¹⁰ In a typical case, counsel receive the forms and rely on them when they exercise peremptory strikes.¹¹

The qualifications the statute sets are few, and a candidate must satisfy every one.¹² A federal juror must be:

• a United States citizen;
• a resident of the judicial district for one year;
• at least 18 years old;
• literate enough to fill out the qualification form, and fluent in English;
• mentally and physically capable of service; and
• free of pending charges and past convictions for crimes punishable by imprisonment for more than one year.

The 1968 scheme also identifies four categories of people who either may not serve or can be excused,¹³ and excuses generally are limited to vocational categories such as firefighters and doctors, health reasons, incompetence, or undue hardship.¹⁴

Each item on the list is an objective criterion that an official can check against a form or a record without judging the candidate's worth. That design replaced a system built on judgment.

The earlier system was the key-man system. Suggesters recommended candidates, and they were encouraged to propose persons with community esteem and “good character, approved integrity, sound judgment and fair education.”¹⁵ The aim was competent jurors, but the method was unlikely to produce a representative cross section of the community.¹⁶ Several courts had approved it; the Fifth Circuit took a different course in its 1966 decision in Rabinowitz v. United States.¹⁷

Congress responded in 1968 with two innovations. It required lists of registered or actual voters as the source of jurors, and it required objective criteria for juror disqualifications, exemptions, excuses, and exclusions.¹⁸ Because the statutory qualifications are deemed exhaustive and random selection from voter lists is prescribed, the key-man system was effectively abolished.¹⁹

A key-man commissioner would have asked whether Alvarez seemed like the right sort of juror. The statutory plan forecloses that question, because the listed qualifications are exhaustive and officials may not add requirements of their own.

The breadth of the area from which a court draws its names also shapes the venire. State venires are likely organized by county, while federal jurors are likely drawn from a broader geographic area.²⁰ Take Curtis, who has a housing discrimination claim. In a state court in an urban county she will likely try it to a fairly diverse jury. In federal court in the same city, the jury is likely to be less diverse and more affluent, because it will be drawn from the surrounding suburban and rural areas as well as from the city.²¹ That difference can be a significant factor in choosing between state and federal court. Neither venire is defective; the difference comes from geography.

State systems need not copy the federal plan, although the cross-section concept is common to most of them. The Fourteenth Amendment does limit how states design their methods of selection: no particular group may be systematically excluded, and litigants must be given procedures consistent with fundamental fairness.²²

Beneath every plan, federal or state, the Constitution sets a floor. Both the Sixth Amendment guarantee of trial by jury and the Equal Protection Clause of the Fourteenth Amendment limit how a venire may be assembled.²⁴ The equal protection doctrines developed first, partly because the Sixth Amendment was not held applicable to the states until Duncan v. Louisiana.²⁵

In Norris v. Alabama, court officials in Jackson County had never known of a Black person serving on a grand jury there. The court reporter, who had not missed a session in twenty-four years, and two jury commissioners said the same, and one commissioner testified that he had never known a single instance of a Black juror on any grand or petit jury in the county's entire history. The Supreme Court reversed a Black defendant's conviction, holding that this evidence established a clear practice of discriminatory exclusion of Black citizens from the jury venire.²⁶ The same principle protects persons of Mexican descent, as in Hernandez v. Texas (1954), and persons of African descent, as in Neal v. Delaware (1880).²⁷

The fair-cross-section requirement asks a related question about the community as a whole. A cross section is composed of “large, distinctive groups” that play “major roles in the community,” and women are such a group. In Taylor, the Court held Louisiana's automatic exclusion of women from jury service unconstitutional. In Duren v. Missouri, 439 U.S. 357 (1979), it held that an automatic exemption for any woman who asked not to serve, which left venires averaging less than 15% women, also violated the requirement.²⁸ Duren shows that a rule need not bar a group outright to run afoul of the Constitution. Most of the early fair cross-section cases concerned racial or ethnic groups, and later cases recognized violations on the basis of gender.²⁹

Challenging the Array

A party who attacks the process that produced the venire files a challenge to the array. The array is the whole group of prospective jurors summoned to court, and the challenge asserts that the method used to select that group failed constitutional or statutory standards.³¹ In federal court the statutory challenge has two conditions: the party must raise it within the time limits the statute prescribes, and must prove a “substantial failure” to comply with the provisions of the 1968 Act.³² Together the conditions confine the remedy to timely objections that point to a real departure from the plan.

The challenge targets the method because a defective source list taints every panel drawn from it. Striking jurors one at a time cannot repair that taint, since the people the list excluded never reached the venire. Challenges to individual jurors, whether for cause or peremptory, each excuse one person from this case.³³ A qualified, unbiased juror can sit on a panel drawn from a defective array, which is why the juror-by-juror tools cannot answer a complaint about the list.

The decided cases show what a real departure looks like. In Ballard v. United States, the Supreme Court sustained a challenge to an array from which women had been systematically excluded. In Thiel v. Southern Pacific Co., it sustained a challenge to a federal-court practice of systematically striking daily-wage earners from the jury lists, and it held that federal-court litigants are entitled to prospective jurors selected from a cross section of the entire community.³⁴ The 1968 policies against exclusion on account of sex or economic status now forbid by statute the defects those cases condemned. Proof of a practice carries such a challenge. In Norris, the proof was testimony that no Black person had ever been known to serve on a grand or petit jury in the county, and the Court treated it as establishing a practice of exclusion.³⁵

A party does not win an array challenge merely because the jury actually empaneled fails to represent a cross section of the community. The selection process itself must systematically exclude a legally cognizable group or class from eligibility for jury service.³⁶

The empty seats resemble those in Thiel, but the cause differs. In Thiel the lists dropped daily-wage earners, so no member of that group could appear on any venire. In Ortega's case the method excluded no one.

The excluded group must also be one the law protects. Courts speak of cognizable or distinctive groups, the “large, distinctive groups” that play “major roles in the community.”³⁷ Racial minorities qualify, as Castaneda v. Partida shows, and so do women, as Taylor and Duren held. Young adults do not. In Hamling v. United States, the Court accepted the underrepresentation of young people that results from recompiling jury lists only intermittently as justified by judicial economy.³⁸

When a problem reports who is missing from the jury box, the first question is why they are missing: a method that kept them off every venire supports an array challenge, and the luck of the draw does not.