Robbins: How a jury is picked |

Robbins: How a jury is picked

Jon Lovitz, the comedian, was a regular on “Saturday Night Live” in the 1980s. Lovitz had a couple of shticks, one of which involved his fantasies about the actress, Morgan Fairchild. Another of his spiels involved him looking soberly into the camera and deadpanning in his distinctive voice, “Get to know me!”

That’s what jury selection is all about.

No, no; not about Jon Lovitz, the pathological liar of comedy, but, instead, getting to know the potential jurors before plunking them down to try a case.

Bear with me …

In the way that “Almond Joy has nuts, Mounds don’t,” not every trial gets a jury.

In most circumstances, in a criminal matter, you get one. The right to trial by jury in a criminal case resides in both Article III, Section 2 of the U.S. Constitution (“The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury”) and the Sixth Amendment (“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury”). But the right isn’t quite as broad as that; many defendants have to settle for a “trial to the court” where a judge (and not a jury) decides whether the defendant is guilty.

The Supreme Court has determined that the right to a jury trial applies only in instances where “serious” offenses are at play and that petty offenses do not invoke the right (see, for example, Baldwin v. New York (1970); U.S. v. Nachtigal (1993); and Blanton v. City of N. Las Vegas (1989)).

In many, but not all, civil trials the parties get to decide for themselves whether to try the matter to a judge or jury. For example, there are never juries in divorce cases.

That settled, how do you pick ‘em?

Lucky you

It’s your lucky day! You, John Q. or Jane Q. Citizen, have been summoned for jury duty. A summons is a command by the court to show up. So you do. You and several dozen of your fellow John and Jane Qs report at the appointed time and date. When the court convenes, the judge will introduce him- or herself and, following a quick explanation of how the process works, the first 20 or so potential jurors will be invited to take seats in what is, somewhat ingloriously, known as the jury “box.”

Settle down; the potential jurors are not crated up. Oh my no. The “box” just defines the space within the courtroom where a jury sits — usually in rather comfortable seats. Just as the judge sitting at the “bench” ain’t really sitting on a bench and the space before the judge is not really a “well,” a jury box is not a “box.” It’s just what these things are called.

But I digress …

Juries are generally made up of six or 12 persons. Usually, an alternate is chosen as well. You’ll note, however, that I said about 20 or so potential jurors are led into the box. Yup. That’s because not all will be picked and some will be excused.

So while the other good citizens who have been summoned for jury duty cool their heels in the gallery watching the goings on, voir dire will now commence.

Voir what?

Say what?

Voir dire, variously pronounced “vwär dir” or “vore dire,” is a bit of French that has snuck its way into American court proceedings. Although our judicial ancestry is most decidedly British, voir dire, which means, literally, “to speak the truth,” has settled in like a squatter who has dug his heels in and refused to leave. Voir dire consists of the preliminary examination of the potential jurors to determine their “fitness” to fairly try the case.

Dressed up in fancy clothes, voir dire is Jon Lovtiz’s “get to know me!” In the simplest of terms, voir dire is the process by which the judge and attorneys get a peek behind the potential jurors’ curtains. Do they know any of the parties or attorneys? Have they heard anything about the case? Do they have any preconceptions or prejudices that might unfairly influence them?

Like most things, there is a beginning, a middle, and an end.

Usually, the judge goes first, asking each of those seated in the box some general questions and giving the potential jurors a broad sense of what the case is about. Next, the prosecutor in a criminal case or the plaintiff’s attorney in a civil case is up. He or she questions a bit more. Then the defendant’s attorney has his/her turn. It can go on like this with follow-ups for more than one round; judge, prosecutor/plaintiff’s counsel, then defendant’s.

Each side — plaintiff/prosecutor and defendant — get what are known as “challenges.” There are two kinds: “for cause” and “peremptory.” A challenge in this context means a reason to exclude a potential juror. A “for cause” challenge might be, “Juror Number So-and-So is the defendant’s brother-in-law.” Because he is likely “interested,” out he goes. He will be excused from further service.

A peremptory challenge is more subtle and the number of “peremptories” is limited. Usually each side gets but a handful (three each is common). A juror may be excused upon a peremptory challenge by either side without having to explain why. “Just because.”

If a potential juror is excused before the final selection is made, another is plucked from the gallery and popped into the jury box. He or she is similarly examined by the judge, plaintiff’s counsel/prosecutor, and the defendant’s counsel.

When voir dire is completed, each side registers their exclusions and the final choice is made — these potential jurors, but not those. Those who were not picked are excused and those who were are “empaneled.”

While all this may seem a bit much — and jury selection, depending on the case can take day or more — the whole point is to ensure fairness. Can the jurors, to the best of their ability, hear the evidence dispassionately and render justice? Although it may seem a bit lugubrious, it is part of the beauty of our system.

“Equal justice before the law?”

Yep, it really means something.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddison, Tharp & Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at his email address,

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