Before it even begins, a trial can be won or lost during jury selection: A jury made up of people with views that are more favorable for one side than the other can make all the difference in how the case turns out.
The U.S. Constitution guarantees the right to a jury trial in criminal cases and many types of federal civil cases. (And state laws often provide for a jury in state civil cases). The right to a jury trial includes the right to a fair and impartial jury. The jury selection process is geared toward protecting those rights.
A jury is selected after lawyers and sometimes judges question potential jurors from a group of people called to court for jury duty (usually by way of a jury summons). The questioning process is called “voir dire,” which means “to speak the truth.” The main purpose of voir dire is to pick jurors who can listen impartially to the evidence and reach a verdict that’s in keeping with the law.
However, experienced attorneys will get more out of voir dire than that. Attorneys ask questions to get a sense of how a juror will respond to the evidence and arguments in the particular case about to be tried. They use this information to try to pick a jury that’s favorable for their client.
Let’s look closer at the jury selection process.
How Does Jury Selection Work?
The jury selection process varies depending on the jurisdiction (the court system the case is in). For example, the rules in federal court will be different from the rules in state court, and each state’s rules will likely differ from other states. Even within a jurisdiction, individual trial judges often have their own methods for picking a jury. So, jury selection in one courtroom might be a little different than in a courtroom down the hall.
But no matter where the case is tried, most aspects of jury selection are similar. Several people are summoned to the courthouse who could end up selected as jurors. The entire group is normally called the “venire” and the individual people in it are “venirepersons,” “potential jurors” or “prospective jurors.”
To decide which venirepersons will become actual jurors, the court conducts voir dire, which involves questioning potential jurors about their ability to be fair and to follow the law. The attorneys for both sides use this information to identify people they want or don’t want on the jury.
To keep someone off the jury, an attorney can use a “challenge for cause” by showing that the person can’t be fair or won’t follow the law. In most jurisdictions, lawyers are also allowed a certain number of “peremptory” challenges, which is just a fancy way of saying they don’t have to give any reason for kicking someone off the jury.
To conduct voir dire, many judges will limit questioning to a certain number of potential jurors at a time. The rest of the prospective jurors might wait nearby and observe the voir dire of that group. After questioning, each side can challenge anyone from the group that they don’t want on the jury. After the court dismisses (or “excuses”) some or all of the challenged jurors, more prospective jurors from the venire will fill their spots, and the process will start again.
Ultimately, the jury is made up of people who make it through this winnowing process.
What Happens During Voir Dire?
Voir dire normally follows a series of steps for finding qualified jurors to decide the case.
The Oath
Before any questioning, potential jurors normally “take the oath” and swear to tell the truth. The oath is important because judges and lawyers have to be able to trust that potential jurors are answering truthfully. The answers help them to know whether the person will (or won’t) be a good fit as a juror in that particular case (more on that later).
Questionnaires
In some jurisdictions and certain types of cases, the judge might have potential jurors complete written questionnaires before any oral questioning. The questionnaires help to identify people who might have difficulty serving as a juror or who might be biased (again, more on that later). The judge or the lawyers might follow up on answers to the questionnaires during voir dire.
Inquiring About Competence and Hardship
Usually, before getting into any questions about a potential juror’s background and experiences, the judge will ask potential jurors whether they have any issues affecting their competence to serve as jurors.
One of the main reasons a juror could be incompetent (unqualified) is that they can’t follow or understand what’s said and presented in court. Some things that might affect competence are an inability to understand and communicate in English, and certain types of disabilities. That said, many disabilities can be accommodated. For example, courts often have listening devices for jurors with impaired hearing. And a juror doesn’t need to speak perfect English; they just need to know enough to understand the evidence and instructions, and to participate in deliberations.
The judge will also ask whether serving on a jury will cause anyone hardship. A person has a hardship if jury service would be very difficult for them. One example is substantial financial difficulty, such as being unable to pay rent or bills because of missed work. Or, someone might have no childcare or have a medical condition that makes being in court all day impossible or really difficult.
It’s up to the judge to decide whether someone has a legitimate hardship. The fact that jury service will be inconvenient or cause minor financial loss is not usually enough to be excused from jury service.
Searching for Jurors Who Can Be Fair
Once jurors who aren’t competent or have hardships are excused, the questioning shifts to the main purpose of voir dire: to find out if potential jurors have any experiences, attitudes, or beliefs that will interfere with their ability to be fair.
Depending on the jurisdiction, questions of this variety might come from the judge, the lawyers, or both. In most federal courts, lawyers submit their questions to the judge, who then questions the potential jurors. In state courts, it’s often the lawyers who do the questioning. And in a state like California, lawyers and judges both ask questions: Judges often ask basic questions about a juror's background, and then the lawyers might follow up with more detailed questions.
Types of Questions Asked During Juror Voir Dire
For some people, voir dire can feel a little like being under a microscope because the questions can be personal. If you’ve been called to jury service, keep in mind that the court and attorneys aren’t trying to make anyone feel uncomfortable; the only purpose of the questions is to make sure that every juror who’s chosen can be fair to both sides.
Knowing what to expect might make voir dire a little easier. Below are some of the types of questions you might encounter during jury selection.
General Biographical Information
Often, jurors will be asked to state the neighborhood or area they live in, their profession, whether they have children, are married, and so on. This kind of information helps the judge and lawyers get a feel for the potential jurors, and might even inform an attorney’s decision to use a challenge on someone. For example, imagine a federal case where the defendant is charged with leaking military secrets. A potential juror who explains that he’s a general in the army might be someone the defense doesn’t want on the jury.
Prior Experiences
Many voir dire questions focus on potential jurors’ previous experiences that could affect whether they can be fair or impact how they’ll view the case. For example, if the case involves a drunk-driving accident, the lawyers will want to know whether the potential juror—or a close relative or friend—has ever been involved in a car accident or had a drinking problem.
Jurors are asked to share potentially private things like this for a good reason. Someone’s similar experience could cause them to decide the case based on that experience—and their feelings about it—rather than on the law and the evidence at trial.
Or, their experience might make them biased against a party or a witness. For example, in any type of criminal case, the lawyers might ask potential jurors if they’ve ever been a victim of a crime or had negative interactions with law enforcement. Lawyers want to know this because crime victims could be biased against a defendant. On the other hand, people who’ve had unpleasant police interactions could be biased against the officers who testify for the prosecution.
Of course, a person's experiences might not make them biased or unable to judge the case on its own facts. The whole point of voir dire is to find out if potential jurors can set aside their own experiences and decide the case impartially.
Special Knowledge
Lawyers also ask questions to discover specialized knowledge that might cause a juror to rely on outside evidence. For example, imagine a case involving arson. Veteran firefighters might not make good jurors because they’re likely to refer to their own professional knowledge and experience during deliberations. This would violate the rules requiring jurors to decide the case based only on the evidence admitted at trial and the judge’s legal instructions.
Getting Excused From the Jury: For-Cause and Peremptory Challenges
After questioning, it’s time for the lawyers to use challenges to get rid of jurors they don’t want on the jury.
When voir dire uncovers a potential juror’s conflict of interest or bias, an attorney could ask the judge to dismiss the juror for cause. The lawyer might argue that the person’s answers during voir dire showed that they can’t be fair, won’t base their verdict on the evidence, or won’t follow the court’s instructions. The lawyer on the other side might agree, or they might oppose the challenge and argue that the juror can be fair. It’s up to the judge to decide whether there are sufficient grounds to dismiss any jurors challenged for cause.
After challenges for cause, lawyers can make their peremptory challenges, and kick off jurors for no stated reason.
Let’s see how this all plays out.
Imagine a case where the victim was shot, and the defendant intends to claim self-defense. The defense lawyer might try to find out how jurors will react to that defense by asking them about things like the right to “stand your ground” and possess firearms. If any potential jurors express negative views about guns, defense counsel will probably first ask the judge to excuse them for cause. But if the jurors assure the judge they can be fair despite their personal views on guns, the judge will likely deny the challenge. Then defense counsel can choose to dismiss those jurors by using peremptory challenges.
The attorneys have to be selective about who they get rid of with peremptory challenges, though. Unlike challenges for cause which are unlimited, each side gets only a set number of peremptory challenges. And they often run out of them before eliminating all the jurors they don’t want.
To read more about how juror challenges work in criminal cases, see our article “Permissible Reasons For Rejecting Jurors in Criminal Trials."
How Should You Answer Voir Dire Questions?
There are no "right" answers to voir dire questions. The only thing the court and attorneys are interested in is the truth.
Some people are afraid to say things they think will be frowned upon, such as admitting they have a bias against one party or the other. But there's nothing wrong with admitting a bias (we all have them to some degree, depending on the circumstances), and the judge and the parties typically appreciate that kind of honesty.