By Sara Kropf
Jury selection as a funny thing. As I’ve said before, it is far more art than science.
Most courts have a list of standard questions of the ask every juror during jury selection. One of those questions is whether or not the prospective juror is biased for or against a law enforcement witness.
This question leads to the unfair exclusion of African-American jurors.
Courts should stop asking it.
The Purpose of Voir Dire
Voir dire is the process by which the court, and sometimes the parties, ask prospective jurors questions to determine if they would be fair jurors for the case. In many courts, the judge will first ask a list of fairly standard questions to the entire jury pool. Then, each juror will be called to the bench to be asked follow-up questions by the court and the parties about their initial answers to the questions.
The Supreme Court has said that “[v]oir dire examination serves the dual purposes of enabling the court to select an impartial jury and assisting counsel in exercising peremptory challenges.” Mu’Min v. Virginia, 500 U.S. 415, 431 (1991). That does not mean that any question is an appropriate one during voir dire. For example, I’ve never seen a court allow the parties to ask a jury to describe her political views.
The Supreme Court has invalidated laws and practices that systematically exclude racial minorities from juries and prevents parties from using peremptory challenges to strike a prospective juror based on race. Voir dire may not be used to advance one party’s agenda to exclude racial minorities from the jury.
The Standard Question about Law Enforcement Officers
But what if a standard question asked by the court systematically excludes members of the jury pool who are African-American? What then?
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