Jury Selection (September 2025)
Although resolving a capital case prior to trial is preferred and recommended, it is not always possible. Every case must be litigated as though it will be tried to a sentencing verdict, until a death sentence is no longer an option. If a case proceeds to trial, the ability to select a jury that includes jurors open to returning life verdicts is essential. Conducting death penalty voir dire is a specialized skill that requires time and training to master. This litigation guide provides a general overview of issues attendant to jury selection procedures and other factors defense counsel should consider.
Racism and Jury Selection
Racial bias in jury selection compromises the “credibility, reliability, and integrity of the legal system,” and its pernicious effects are most pronounced in capital cases, a 2021 report from the Equal Justice Initiative (EJI), Race and the Jury: Illegal Discrimination in Jury Selection, has found. EJI’s report documents the long history of racial bias in jury selection procedures and details factors that contribute to ongoing jury discrimination today.
Extensive research documents the intrusion of racism into the jury selection process and its impact in the jury room, and a robust body of literature offers suggestions to mitigate the problem. Below are links to some of that literature.
Confronting the Bias Dichotomy in Jury Selection (Holland, Brooks, 81 Louisiana L.Rev. 1, Fall 2020)
Although California-oriented, this report addresses issues common nationwide, including a brief history of discriminatory exclusion, the use of racially based stereotypes to exclude potential jurors, and why racial discrimination in jury selection persists.
Challenges to Creating the Jury Pool
In cases where the composition of the court's grand and petit jury pools have not been recently... challenged, or in which a defense team seeks to revisit or build upon such recent challenge the .. task of jury selection can begin with an analysis of the court's process to identify and summons potential grand and petit jurors to ensure that the process complies with the Sixth Amendment and the Jury Selection and Service Act (JSSA). The same analysis is used to challenge the process of selecting both grand and petit jurors. Mounting an attack on the process must begin early in the case as it demands persistence in seeking broad discovery as the jury officials, and sometimes the courts, are resistant, if not downright hostile, to efforts to challenge their procedures.
To establish a prima facie violation of the fair cross section requirement, the defense must establish the following:
(1) that the group alleged to be excluded is a “distinctive” group in the community; (2) that the representation of this group in venires from which juries are selected is not fair and reasonable in relation to the number of such persons in the community; and (3) that this underrepresentation is due to systematic exclusion of the group in the jury-selection process.
Duren v. Missouri, 439 U.S. 357, 364 (1975).
Some information is, or should be, available simply by request. An unqualified right to inspection of the demographic data in the Jury Wheel is required by the plain text and purpose of 28 U.S.C. §§ 1867(f) and 1868. See Test v. United States, 420 U.S. 28, 30 (1975) (“[W]ithout inspection, a party almost invariably would be unable to determine whether he has a potentially meritorious challenge. Thus, an unqualified right to inspection is required not only by the plain text of the statute, but also by the statute's overall purpose of insuring ‘grand and petit juries selected at random from a fair cross section of the community.’ 28 U.S.C. § 1861.”). Relevant data includes not only data concerning the current Jury Wheels but also historical data to assess whether the underrepresentation is due to systematic exclusion of the group.
Examples of informal discovery requests, motions for discovery, and motions to compel previously ordered discovery are linked in this spreadsheet which you can download.
Jury Related Discovery pleadings spreadsheet March 2025
As discovery is received, counsel will need experts to collect community data, to interpret the data from the community and the jury officials, to identify additional discovery needed, and to provide the evidentiary basis for the jury challenge. Below are three jury challenges with expert declarations included as exhibits: one in a federal capital case; one in a federal case that was no longer death eligible, and one in a state case that was originally capital.
Grand & Petit Jury Challenges (with bookmarked exhibits) (US v. Bowers WDPA 2021)
The defendant moved to dismiss the indictment on six grounds: (1) Fifth Amendment challenge to the grand jury composition; (2) Sixth Amendment challenge to the petit jury composition; (3) Eighth Amendment challenge for failure to use appropriate jury selection procedures; (4) violation of the Jury Selection and Service Act (JSSA); (5) violation of 18 U.S.C. §243 (prohibition against disqualifying persons for jury duty on account of race, color, or previous condition of servitude); and (6) as a necessary exercise of court’s supervisory power over federal criminal procedure. The government’s opposition is here and the defense reply is here. The court denied the motion without an opinion.
Motion for Fair Cross Section of Petit Jury (with bookmarked exhibits) (Tagliaferro (SDNY 2021)
In this non-capital federal case, the defendant moved to stay the proceedings and asked the court to re-select a jury after modifying the district’s jury selection process or, alternatively, to take steps to mitigate the racially-biased effects of the current jury selection process. The government’s oppositions is here; the Court’s Order denying the motion is here.
The defense moved to dismiss the indictment because the Grand Jury did not represent a fair cross section of the community in violation of the Sixth and Eighth Amendments as well as the Jury Selection and Service Act. The defense argued that African Americans and Native Americans / Alaskan Natives are unconstitutionally under-represented and that the Court lacked the demographic data necessary to ensure compliance with the requirement that grand jurors represent a fair cross section of the community. The government opposed the motion, here, and the defense replied here. An evidentiary hearing was held on this motion and the motion linked immediately below and simultaneous, post-hearing briefing was filed (defense here and government here). Order Denying the Motion to Dismiss is here.
The defense moved to preclude use of the jury venire summoned under the District of Alaska’s then-current plan for failure to use political subdivisions as required by the JSSA instead of census designations and for failure to meet the proportionality among political divisions language of the JSSA. The defense supplemented its brief, here, after receiving additional data. The government opposed the motion, here, and the defense filed a reply, here. An evidentiary hearing was held on this motion and the motion linked immediately above and simultaneous, post-hearing briefing was filed (defense here and government here). The docket does not reflect a decision by the court.
In this state case, the defense sought an Order prohibiting trial under the current jury selection system and sought an order prohibiting death qualification, arguing that the qualification process unconstitutionally precluded a fair-cross section of the community and excluded cognizable groups. The defense reply can be found here.
The defendant moved to dismiss the indictment, challenging the jury selection process in the Southern District of New York and the court found, “Defendant has produced clear statistical evidence of (1) underrepresentation of Black and Latinx individuals in the pool from which his grand jury was drawn, and (2) a jury selection process that was susceptible to abuse. The Government has failed to meet its burden by coming forward with evidence rebutting the presumption that such underrepresentation was the result of purposeful discrimination. Therefore, Defendant has established a violation of his Fifth Amendment right to a race-neutral jury selection process.” The defendant had also raised claims under the Sixth Amendment and the Jury Selection and Service Act but the court did not grant those claims. The court dismissed the indictment without prejudice.
Professor Jeffrey Abramson, University of Texas at Austin, published a critique of Duren by reviewing four non-capital jury challenges in federal court and offered suggestions for improving the process of creating the jury pool to achieve a fair cross-section of the population.
Jury Selection Procedures
After the pool of potential jurors is created, the process of weeding begins. In some courts, the jury clerk is authorized to conduct initial weeding without court oversight. This administrative process should be challenged and counsel should make every effort to be involved from the outset. Whether it is hardships based on medical conditions, disabilities or age, difficulties with English comprehension, or excusal for prior criminal convictions, defense counsel need to be ready to intervene to ensure that only those who actually cannot sit on a jury be relieved from duty at this early date. Defense counsel should consider timely filed motions to obtain any process or documents used by the jury clerk to grant excusals from service.
Other issues that will need to be addressed include: (1) when and how many potential jurors should be summoned; (2) development of a jury questionnaire and how this should be completed (in person or via mail); (3) the process for questionnaire-based strikes for cause; (4) the number of jurors to be called in each day during voir dire; (5) what areas of inquiry will be permitted during voir dire, whether attorneys will be permitted to conduct voir dire, and whether areas of inquiry, such as death-qualifying voir dire, will be individual and sequestered; (6) the number of pre-emptory challenges and (7) the process for exercising pre-emptory challenges. These issues should be addressed by pleading and counsel should strive to resolve them well before jury selection begins.
Establishing Jury Selection Procedures
Government Brief on Standards for Seating a Jury in a Capital Case (U.S. v. Smith, D AK 2019)
Government Motion Relating to Jury Selection/Voir Dire Procedures (U.S. v. Smith, DAK 2019)
The defense filed a motion regarding jury selection procedures, the government filed a brief on “standards” for seating jurors in a capital case and a motion, and each party filed oppositions (defense opposition here; government opposition here). The Court issued an Order addressing both motions and the government’s briefing, available here.
Motion for Order re Disqualification Status Review (U.S. v. Smith, D AK 2020)
The defense moved to prohibit the Jury Clerk from automatically disqualifying potential jurors who answered yes to a question regarding prior criminal convictions and the Court agreed. The Order is here.
Court’s Juror Summons Exemplar (U.S. v. Smith, D AK 2020)
The defense moved for discovery of the results of the government’s investigation into summoned potential jurors. The government agreed to provide criminal history reports and asserted it would not seek credit reports or subpoena social media accounts. The response is here. The defense accepted the government’s terms, linked here, and the court denied the motion as moot. The court’s order is here.
Joint Motion for List of Prospective Jurors and Responses to Summons (U.S. v. Smith, D AK (2020)
The parties jointly requested that the list of prospective jurors and their responses to the summons be provided before jury selection began. The Court ordered the list and responses be made available the day before jury selection began. The order is here.
This declaration includes as Exhibit A questions from questionnaires that elicit jurors’ views about the importance of various aggravating and mitigating factors, and as Exhibit B the questionnaires from 21 recent federal capital cases.
This declaration includes samples of language in juror questionnaires that provide a comprehensive introduction and overview of a penalty phase.
Other declarations related to jury selection can be found here.
Court-Proposed Questionnaire with Request for Comments from Parties (U.S. v. Smith (D AK 2019)
The Court proposed a juror questionnaire in early 2019. The government responded with comments about particular questions, here, but the defense moved to delay responding because it was too early in the case to draft an effective questionnaire. The defense motion is here. Several months later, the defense filed a declaration with questionnaires from several other cases attached as exhibits, available here.
Defense Proposed Hardship and Availability Questionnaire (U.S. v. Smith, D AK 2019)
In this motion, the defense addresses the Court’s concerns about “preconditioning” potential jurors to one side or the other’s view of the case. The defense argues that it is essential to give potential jurors enough information about the facts to elicit meaningful responses to the questions. The defense also argues that a description of the legal principles that will apply in the sentencing phase of the case, if any. Finally, the defense argues that a brief description of the media coverage of the case is necessary to elicit accurate information about potential jurors’ exposure to pretrial publicity. The government’s opposition is here. The order denying the motion is here.
Questionnaires Proposed and Used in U.S. v. Madison (MD FL 2018, 2020)
The questionnaire used in 2018 is here; the court’s proposed questionnaire in 2020 is here; and the questionnaire actually used in 2020 is here.
Motion to Defer Unagreed Non-Hardship Excusals for In Person Voir Dire (U.S. v. Madison, MD FL 2020)
The court ordered the parties to review the questionnaires to try to come to agreement on jurors to be excused based on answers in the questionnaires. The court would determine whether disputed jurors should be excused. The defense argued that the court should not excuse jurors for cause other than hardships until they have been questioned in voir dire.
Jointly-Agreed Questionnaire; Government Additional Questions; Defense Additional Questions; Motion in Support of Defense Additional Questions (with bookmarked exhibits)(U.S. v. Christensen, CD IL 2019)
The parties submitted a jointly agreed-upon questionnaire, linked here. Each party sought additional questions. The government’s additional questions are here; the defense’s additional questions are here. The defense filed a motion in support of its additional questions, here.
Questionnaire submitted to jurors (U.S. v. Con-Ui MDPA 2016)
One of the most comprehensive questionnaires submitted embracing the Morgan-method of capital voir dire.
Counsel who will conduct death penalty voir dire should be well-versed in the Colorado, i.e., Morgan-based, method developed by the National College of Capital Voir Dire, and attend the conference, if at all possible, that is held annually in Boulder in May. The conference is held by the original drafters of the Morgan-based method of capital voir dire. See this excellent article providing an overview of the Morgan-based method.
Overview of the Colorado Method of Capital Voir Dire (Rubenstein, Mattthew, The Champion (NACDL 2010)
The parties jointly requested the Court to (1) schedule panels of ten (10) prospective jurors each day for voir dire, (2) utilize the “strike-as-you-go” procedures for exercising peremptory challenges, and (3) adopt the proposed general voir dire questions for questioning the entire panel of prospective jurors (exhibit A) and the defense offered legal support for these requests. The corrected proposed general voir dire questions can be found here.
Defense (with bookmarked exhibits) and Government Motions to Establish Jury Selection (Voir Dire) Procedures (U.S. v. Christensen CD IL 2019)
The defense moved for voir dire procedures that would be effective in ensuring the defendant’s rights to be tried before jurors with a reverence for life, willing to consider and give effect to all relevant mitigating evidence, and willing to consider a life sentence even if aggravating factors are proven. The procedures sought included special precautions during judge-led voir dire and attorney-led voir dire. The government, on the other hand, argued for standard, panel voir dire and judge-led questions only.
Batson and Peremptory Strike Litigation Overview (2018)
Peremptory strikes that are “motivated in substantial part by discriminatory intent,” Snyder v. Louisiana, 552 U.S. 472, 485 (2008), on the basis of race or gender violate both the defendant and the juror’s constitutional rights. Batson v. Kentucky, 476 U.S. 79 (1986); J. E.B. v. Alabama, 511 U.S. 127 (1994) A defendant has standing to raise a claim that the Government struck a juror based upon race or gender regardless of whether he is the same race or gender as the juror who was struck. Powers v. Ohio, 499 U.S. 400 (1991) (third-party standing). Batson v. Kentucky, 476 U.S. 79 (1986) sets forth a three-step process for determining when a strike reflects unlawful discrimination. The information set out below is simply a shorthand reminder of the Batson steps.
The three steps:
- First, the defense presents a prima facie case “by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. 79, 94. Note that the standard for a prima facie case is low and arises on facts from which an inference of discrimination may be drawn. Johnson v. California, 545 U.S. 162, 169-70 (2005). In addition to asserting your array of typical indicia of discrimination (number and proportion of strikes against protected venire members, etc., see, e.g.,Miller-El v. Dretke, 545 U.S. 231, 239 (2005)), your support for the prima facie case should also include the relevant racial or gender aspects of the case; the history of Batson challenges against that particular prosecutor; and any other history of racial bias in that jurisdiction. Counsel should make sure to articulate the full basis for the prima facie case, particularly if the court declines to find one. Defense counsel must ensure that any negative ruling is made on the record.
- If the court does find a prima facie case, the government must next provide its justification for the peremptory strike. The reason must be facially race- or gender-neutral and must also be specific.
- If the government’s stated reasons are facially race- or gender-neutral and sufficiently specific, the defense must then present responsive arguments to persuade the court that the stated reasons are merely a pretext for unlawful race- or gender-based striking. See Snyder, 552 U.S. at 478-79. The government’s stated reasons must be examined through a comparative analysis of the jury selection record to note where jurors who gave similar responses on the jury questionnaire or during voir dire but who were not struck by the government. Best practice is to ask the court for additional time after step 2 to review the peremptory strikes, jury questionnaires, and voir dire transcript to prepare a robust response to the government’s asserted justification.
The remedy that you are seeking is for the improperly struck juror to be seated if not otherwise excusable for cause. Accordingly, any prospective jurors who are the subject of a Batson challenge should not be excused until after the Batson claim has been resolved.
In order to effectively raise Batson claims, the trial team must arrange to have transcripts of voir dire and, before jury selection begins, should work out the procedure for raising these claims with the Court in a manner that permits adequate review of the jury selection record.
Additional considerations
- Counsel should be clear on when the Court expects a Batson objection to be made, i.e., at the time of the strike or after all peremptory strikes are noted. Depending on local practice, the court may require that the defense lodge objections strike-by-strike. Do not be deterred from reiterating an earlier objection if the suspect aspect becomes clear after a pattern of improper strikes has been established.
- Counsel should make sure that the record includes all race / ethnicity and gender information about the prospective jurors, including information from the jury wheels and questionnaires. If there is the slightest question about the race or gender of a prospective juror, counsel should ask on the record how the person identifies.
- Counsel should be sure to get on the record any information about the prosecutor’s history in past cases of striking non-whites from juries. This requires research pretrial.
- Gender discrimination in peremptory striking is subject to the exact same procedures as racial discrimination, but the controlling case is J.E.B. v. Alabama, 511 U.S. 127 (1994).
- The Supreme Court has not ruled whether discrimination on the basis of religious affiliation violates Batson. (Multiple Courts of Appeal have held that striking on the basis of religious beliefs – i.e., a religious belief that the death penalty should not be imposed – does not violate Batson). Nevertheless, where several religious faiths have explicit instruction against imposing the death penalty, defense counsel should be attuned to religious affiliation of venirepersons and be prepared to preserve a challenge to strikes based on that basis.
Batson-Releated Articles and Reports
“This article presents findings from a quantitative study of jury selection using computational natural language processing methods…. Our results, presented here, revealed significant, but sometimes subtle, disparate questioning of Black venire persons, especially by the prosecution.”
Batson and the Discriminatory Use of Peremptory Challenges in the 21st Century, Elizabeth Semel in JURYWORK: SYSTEMATIC TECHNIQUES (2018-19 through 2022-23 editions). The latest edition of Jurywork can be purchased here; It is also available on Westlaw.
Challenging Jurors' Racism, Levinson, Faber, et al. (57 Gonz L. Rev. 365 (2021)
“This Article attempts to assist judges and attorneys in their efforts to select an impartial jury by equipping them with a better understanding of different forms of racism (e.g., overt, covert, symbolic, aversive) as well as providing an introduction to insightful psychometric tools that can be used to prioritize the selection of anti-racist jurors, identify prospective jurors who may hold implicit and explicit biases, or identify those who are likely to be impartial in their assessment of the case.”
Race and the Jury: Illegal Racial Discrimination in Jury Selection (Equal Justice Initiative 2021)
This report by the Equal Justice Initiative addresses the history of race discrimination in jury selection, why and how it occurs, who is responsible, why representative juries are necessary and the harm discrimination in jury selection causes, and suggests practical remedies to end discrimination.
Batson Reform: State by State - Berkeley Law
The Berkeley Law Death Penalty Clinic tracks the progress of Batson reform proposals across the country.
Although California-oriented, this report addresses issues common nationwide, including a brief history of discriminatory exclusion, the use of racially based stereotypes to exclude potential jurors, and why racial discrimination in jury selection persists.
Batson-related Pleadings and Opinions
Batson Case Summaries from January 2007 through May 2018, Elisabeth Semel (2018)
This document provides case summaries of Batson-related opinions from the U.S. Supreme Court and Federal Circuit Courts of Appeals from January 2007 through May 2018.
Mays & Smith v. Florida (Fl. 3d Dist. Ct. of Appeal 2022) (opinion)
The Florida Court of Appeal found the trial court erred when it determined a pre-emptory challenge was racially neutral when the prosecutor excluded a Black woman from the jury because she said she wanted to serve on the jury so the defendants would be judged by a jury that fairly represented the community.
U.S. v. Council (4th Circuit Court of Appeals 2022) (Appellant’s Opening Brief)
This brief argues that the district court erred by refusing to ask questions requested by the defense that sought to identify potential jurors’ biases about Black people in a case charging a Black defendant with killing two white women. The relevant portion of the brief begins at p. 115 (p. 149 of pdf).
In this amicus brief, several social justice organizations argue that excluding by pre-emptory challenge a potential juror because of her support for BLM was not racially neutral and violated Batson.
Batson-related Jury Instructions & Voir Dire
This memo includes sample implicit bias instructions at different stages of the case and sample voir dire questions.
Transcript of Batson-related Challenges in U.S. v. Bowers (WD PA 2018)
This memo includes sample implicit bias instructions at different stages of the case and sample voir dire questions.
This memo includes sample implicit bias instructions at different stages of the case and sample voir dire questions.
This memo includes sample implicit bias instructions at different stages of the case and sample voir dire questions.
Memo to Judge Coughenour Reporting Survey Results on Impact of Video
This video, prepared by US District Court for the Western District of Washington, addresses the issue of unconscious or implied bias and is shown to potential jurors in the district. The memo reports the results of surveys given to potential jurors after viewing the video.
Note: the ABA video referenced is linked in the Project Memo above.
Other Jury Selection Issues
Defense Motion for Change of Venue (U.S. v. Gendron (WDNY 2024)
In this high-profile death penalty case brought under the federal Hate Crimes Act, the defense moved, and sought a hearing, for a change of venue from the Western District of New York to the Southern District of New York. The defendant had previously been prosecuted in state court and the state sentencing hearing, including victim-impact statements, were video-taped and widely available.
After the government moved orally for an anonymous jury, the defense filed a written opposition. The court had ordered early disclosure of juror questionnaires; the government in its response to the defense opposition asked to have the names and addresses redacted from the questionnaires until the first day of jury selection. The court did not order redactions.
For additional materials, including transcripts of voir dire, please contact your Resource Counsel.