 Federal Judicial Center Orientation Series for District Judges Administration of the Jury System and Selection of a Jury with the Honorable Roger G. Strand. Judge Strand was appointed as a United States District Judge for the District of Arizona in 1985. He is a former chair of the Ninth Circuit's Education Committee and a former member of its Jury Management Committee. He is also a former chair of the Federal Judicial Center's Committee on District Judge Education. First, of course, is a jury box. It is perhaps the most important part of the courtroom. The people who sit here will be deciding your cases. As the District Court Judge, it will be up to you, not only to fill the box, but also to work with the jury effectively so that they can do the best job possible. Our discussion of jury administration and jury selection begins with the Constitution itself. On the criminal side, the Sixth Amendment expressly provides that in all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury. The Seventh Amendment to the Constitution provides that in all suits at common law, where the value in controversy shall exceed $20, the right of trial by jury shall be preserved in violet. The constitutional provisions are implemented by the rules of criminal procedure and the rules of civil procedure. The federal statute which governs the summoning and impaneling of juries is the Jury Selection Act of 1968. That statute provides that all Pettit juries shall be selected at random from a fair cross-section of the community. It forbids exclusion of a citizen from service as a juror on account of race, color, religion, sex, national origin, or economic status. And the heart of the statutory scheme is the requirement that each United States District Court devise and follow its own written plan for the random selection of grand and Pettit juries. The counsel of your circuit must approve the plan. Usually courts use voter registration roles, motor vehicle registration lists, or some combination of source lists that will achieve the purposes of the act. One of the things that you will want to do as a new judge is become familiar with your own district's plan. For example, you'll need to know what it says about the granting or denying of excuses to jurors, because it probably will become your responsibility to pass upon those requests, either as the jury judge in a multi-court division or as the presiding judge if you are serving in a single court division. You will also want to learn the practice in your district with respect to post-verdict contact of jurors by the attorneys in the case. These are just two examples of the kind of valuable information that may be found in your local jury plan. As you'll see when you examine your jury plan and the statute, both contemplate the creation of a master jury wheel. This is a raw compilation of names of potential jurors which have been selected at random from the source lists. The clerk of court will send a questionnaire to each person on the master jury wheel. The responses to that questionnaire will then be used to qualify the jurors under the statute. That simply means to exclude those who are not qualified to serve, for example, convicted felons, those who have not been residents in the district long enough, and so on. The remaining names are then placed on a list known as the qualified jury wheel. When jurors are needed for trials in your court, they are summoned at random from the qualified jury wheel. The juror summons in use in automated courts includes a juror information form. In some courts, clerks use these forms to prepare jury lists for use by the judge and counsel during the jury selection process. The lists provide basic biographical information like the age, occupation, marital status, and occupation of the spouse. You'll want to ask your colleagues for the specifics on the court's jury system. Does a standing order or local rule require furnishing of jury lists to the court and counsel at the time of the jury selection or perhaps before? What are the techniques for determining the number and size of panels called for jury trial terms? What rules of thumb are applied if a juror needs to be excused during the term of service? For example, after serving on one trial or making two or three appearances without being selected. Those are important details that jury plans ordinarily don't spell out. What happens in your court when a person first arrives for jury service? In metropolitan courts, it's customary for prospective jurors to assemble in a central jury assembly room. Generally, they would be greeted by the jury clerk. In smaller courts, they may assemble in the courtroom for their orientation. Orientation of prospective jurors is an important obligation of the courts. Whether it is carried out by the chief judge, by you as a new member of the court, by the jury clerk or by some other member of the court's staff, to assure that the orientation material is fair, accurate and impartial, it should be presented uniformly throughout the jurisdiction. It is essential to inform prospective jurors of their role and responsibility in the American legal system and to create a positive attitude towards jury service in them and to emphasize that jury service is both a privilege and a civic duty. You're encouraged to take an active role in this orientation process for it can be a very positive experience for both the judge and the prospective jurors. Frequently, you will be called upon to decide the size of a panel that will report to your courtroom for the selection of a jury or juries. In smaller courts, you may also determine the size of the overall panel to be summoned to the courthouse. Excluding the possibility of multiple voir dire examinations, which we'll discuss later, there are generally three factors to be considered in deciding the size of the panel to be assembled in the courtroom. First, is it a civil or criminal case? In most court, civil juries consist of fewer than 12 persons. Second, how many peremptory challenges will be allowed? Third, what are the chances that valid challenges for cause will be exercised in the case? Rule 48 of the Federal Rules of Civil Procedure became effective December 1, 1991. It eliminates alternates in civil juries. The rule directs the court to seat a jury of not fewer than 6 and not more than 12 members, and all jurors shall participate in the verdict unless excused from service by the court pursuant to Rule 47C. Unless the parties otherwise stipulate, the verdict shall be unanimous and no verdict shall be taken from a jury reduced in size to fewer than 6 members. The jury act specifies that each party in a civil case is entitled to three peremptory challenges. Considering these factors, 18 persons is a reasonable number to summon for a routine civil case. That includes 7 persons for the jury itself, plus 6 to cover the peremptory challenges allowed by statute, plus 5 to cover possible challenges for cause or requests to be excused for some justifiable reason. You'll want to consider a larger panel in a case in which a statute allows additional challenges or where you expect increased challenges for cause due to the nature of the issues or the notoriety of the case. If the case is likely to go more than a week or 10 days, you may want to seat more than 7 jurors since the risk of losing jurors obviously increases with the length of the trial. In criminal cases, Rule 23B of the Federal Rules of Criminal Procedure provides the jury shall be of 12 persons. Rule 24B provides that in non-capital felony cases, the defendant is entitled to 10 peremptory challenges and the government to 6. Rule 24C provides for up to 6 alternate jurors with 1 to 3 additional peremptory challenges allowed depending on the number of alternates to be selected. In a routine criminal case, it would be appropriate to summon a panel of 36 persons. This number consists of 12 for the jury, plus 16 to cover the peremptory challenges allotted to the parties, plus 1 as an alternate juror, and it is indeed recommended that 1 or 2 alternate jurors be seated in all criminal cases, plus 2 to cover the peremptory challenges attributable to the alternate juror, and 5 to cover possible challenges for cause or request to be excused. That brings the total panel size to 36 prospective jurors. However, depending on the subject matter, complexity, and anticipated length of the trial, you may want to call for a larger number to avoid having to repeat the process if you run out of prospective jurors. In criminal cases, Rule 23B permits the parties to stipulate in writing to a verdict of less than 12 jurors. You may safely reduce the size of the panel to be summoned in accordance with such a stipulation. All United States district judges share responsibility for effective juror utilization. It's a major concern of all judges, as indeed it should be. In 1984, a judicial conference study revealed that as many as 40% of all persons who were called for jury service in the United States district courts were not selected, serving, or challenged on their initial reporting days. In other words, they were wasted. Historically, we have simply summoned many more prospective jurors than we needed. In recognition of that problem, the judicial conference established a national goal for all district courts to reduce that percentage of wasted jurors from 40% to 30%. District judges increased awareness of the problem is the first step towards its solution. There are two specific techniques for improving our jury utilization. First, conducting multiple voir-deer examinations. And second, pooling of jurors and staggering the starting times of trials. The multiple voir-deer technique is simply the selection of two or more juries back-to-back on the day that the panel reports for service. You don't select the jury for one case on Monday and then have the entire panel return on Wednesday or Thursday for selection in the second case. Instead, you select both juries on Monday or perhaps even the juries for three or even four cases. There is an important caveat to bear in mind, however, when you conduct multiple voir-deer in a criminal case. If you select the jury on Monday for the trial of a criminal case starting on Wednesday, don't impanel and administer the oath to that jury until they have actually returned for the start of the trial. That's because it's the swearing in of the jury for the case that triggers the application of the jeopardy clause under the Constitution. If some casualty occurs between the selection of the jury and the commencement of trial, it could result in jeopardy problems that could be avoided by simply waiting until the day of trial and then briefly reopening the voir-deer before impanelment in order to assure that nothing has occurred in the interim that would adversely affect the eligibility of any of the selected jurors. You are encouraged to think about and perhaps experiment with conducting multiple voir-deer examinations as one means of improving your jury utilization rate, regardless of whether you sit in a metropolitan court or in a smaller court, but especially if you preside in one of the smaller courts. The other method for improving juror utilization is the jury pooling with staggered starts technique. In this process, two or more judges form a team. They coordinate their trial schedules so that each is scheduled to begin the trial of a jury case on the same day. They can therefore share a pool of jurors rather than having separate panels in each of their separate courtrooms. Participating judges may need to stagger the starting times of their trials so that jurors who are left over from one courtroom can then join in the panel in the second and so on. This technique can reduce the number of prospective jurors needed on a given day by up to 30%. For example, assume that each of two judges needs a jury for the trial of a criminal case, applying the formula we discussed earlier, each needs a panel of 36 prospective jurors. That's a total of 72. If they joined in using the pooling and staggered starts technique, they would require as few as 50 prospective jurors. The process might operate like this. At 9 in the morning, all 50 prospective jurors would report to Judge A's courtroom for jury selection. By noon, a jury of 12 and two alternates could be impaneled. The remaining 36 prospective jurors would report to Judge B's courtroom at 1.30 for voir dire and impanelment later that afternoon. This technique can greatly improve your juror utilization rate with little or no inconvenience to you or your colleagues. An important aspect of your administration of your jury system is the method used for the selection and impanelment of the jury. No federal rule or statute prescribes any specific manner of jury selection. There are basically two systems. One is known as the jury box or sequential method of exercising challenges. The other is the struck jury system. You will find a detailed discussion of these two methods in the Second Circuit Decision of United States v. Bluon. The citations for that and other cases we'll talk about are in your outline. The fact is, there are probably as many variations of jury selection procedures as there are district court judges. In the jury box or sequential method, six or 12 prospective jurors, as the case might be, are seated at random in the jury box. After voir dire examination is completed, challenges for cause and or peremptory challenges are then exercised by the parties in some pattern of alternation. With each challenge to a person seated in the jury box, another is called at random as a replacement. The jury will consist of those people seated in the box when all challenges are exhausted. Or the respective parties may decide to accept the jury without exercising all of the peremptory challenges that are allowed under the rule. Additional and or alternate jurors may also be seated when appropriate under the facts of a particular case. In the struct jury method, a larger number of prospective jurors are seated in the box and thus exposed to voir dire examination. Generally, the number seated would be sufficient to include jurors plus alternate jurors, if any, plus peremptory challenges. Challenges for cause are made as voir dire progresses. After voir dire, the parties exercise their peremptory challenges or strikes by making them on a list of the prospective jurors who have been seated. The jury then consists of the first 6 or 12 names plus such additional or alternate jurors as are set forth on the list. No doubt you'll want to discuss with your colleagues the procedures used in your district for the selection of juries and the exercise of challenges and then adopt the procedures that you believe are most effective having due regard for local practice and the benefits of having a uniform system within your jurisdiction. A discussion of peremptory challenges necessarily calls for a consideration of Batson versus Kentucky. In this case, the Supreme Court held that the use of peremptory challenges by a prosecutor to exclude jurors solely on account of their race violates the defendant's right to equal protection under the law. In Edmondson versus Leesville Concrete Company, the court extended the prohibition to civil cases and reversed an action where peremptory challenges had been used against females. It's important to note that the range of situations in which peremptory challenges can be questioned is increasing as new issues appear in the circuits. Judges should advise counsel to bring a Batson challenge to the use of peremptory challenges to the court's attention at the close of Wardere but before the jury is seated. That lets us address the issue in a timely manner. If the challenge is sustained, the attorney can strike a different prospective juror. The impanelment of the jury can take place without embarrassment to anyone on the panel and without having to start the entire Wardere process over with a fresh panel of prospective jurors. One final point on challenges. Whatever method of jury selection you've chosen, it's recommended that all peremptory challenges and challenges for cause that might embarrass a prospective juror be exercised privately by the lawyers outside the hearing of the members of the panel. We now come to the Wardere examination itself. One key decision to be made is who will conduct it. You, the lawyers, or perhaps both. Rules 24A and 47A of the rules of criminal and civil procedure respectively provide in substantially identical terms that the court may conduct the examination or permit the attorneys to conduct it. A judge who conducts the Wardere examination must permit the attorneys to supplement the exam either directly or by relaying questions through the judge. Many district judges advocate that the judge should conduct the Wardere examination to the exclusion of counsel, exercising the discretion given by the rules to do it in that manner. A judge conducted Wardere has distinct advantages. It removes the jury selection process from the adversarial part of the trial. Some judges believe that it better ensures the selection of an impartial jury by eliminating the opportunity for the lawyers to posture or to attempt to indoctrinate the jury with regard to a claim or defense during the Wardere examination. Some segments of the bar in recent years have sought amendments to the rules which would restrict the discretion that district judges now have and mandate participation by counsel in the interrogation of prospective jurors. One reason for that movement is the lawyer's perception that in all too many instances district court judges conduct the Wardere in a perfunctory manner and don't question panel members sufficiently to develop possible areas of bias or interest. Accordingly, if you do decide to conduct the Wardere to the exclusion of the lawyer's direct interrogation it is essential that you formulate a thorough and comprehensive Wardere examination in both civil and criminal cases. Questions should be designed to expose possible bias or interest on the part of prospective jurors so that the lawyers can more intelligently exercise their peremptory challenges. As you begin to develop your own comprehensive outlines of Wardere questions there are two resources that I recommend for your consideration. The first is the bench book which you will receive from the center. It includes chapters on conducting Wardere examination in both civil and criminal cases. A second center publication is a booklet entitled Jury Selection Procedures in United States District Courts. It presents Wardere questions and procedures that have been followed by some very experienced district court judges. It's also a good idea to ask the lawyers to suggest Wardere questions that should be explored because of the peculiarities of the case involved. At the trial itself when you have completed your own general of Wardere examination always invite the lawyers to the bench to suggest supplemental lines of examination as the rules do explicitly require. If those questions are appropriate then pose them to the prospective jurors. Many judges have opted for the middle ground. The judge first conducts a general examination and then permits the lawyers to supplement that examination by direct interrogation of prospective jurors but for a limited period of time. Because you will have covered most of the necessary ground this will not take much additional time and lawyers will appreciate being given this opportunity to address individual jurors before exercising their peremptory challenges. Finally, as a matter of efficient case management when you have settled upon your jury selection practices and procedures reduce them to writing in some form of a brief memorandum or pretrial order. This can be distributed to counsel so that they will know what to expect when they appear in your courtroom. This will eliminate a lot of time answering the questions of counsel who are inexperienced with your practices and it will also engender respect for you as a judge who runs an efficient and well-managed court. As we draw this program to a close I wish you the best of good fortune and every success as you begin your careers as United States District Judges and as you begin the process of administering the jury system in your court and as you develop your own style of trying jury cases as a federal judge. The Federal Judicial Center recently produced Called to Serve, a 20-minute video designed for courts to use as they wish as part of their juror orientation programs. Called to Serve welcomes prospective jurors to the federal courts, gives them some do's and don'ts about being a juror and encourages them to take their jury service seriously. It also includes an overview of the jury trial and selection processes. In producing the program, the Center worked with a committee of judges including a representative from the Court Administration and Case Management Committee of the Judicial Conference of the United States.