BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007
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Section 6 - Civil Proceedings

    6.03 Jury Selection-Civil

        6.03.1 Jury Selection-Civil: General Principles
        6.03.2 Jury Selection-Civil: Related Sources, Issues And Instructions

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

The Benchbook Committee recognizes that there is no uniform recommended procedure for selecting jurors to serve in criminal or civil cases and that trial judges will develop the patterns or procedures most appropriate for their districts and their courts. Section 6.04, infra, however, provides an outline of standard voir dire questions for civil cases. For a sample juror questionnaire, see Sample Forms 42 and 43 at pages 358–60 of the Civil Litigation Management Manual (Judicial Conference of the United States 2001) (updating and replacing the Manual for Litigation Management and Cost and Delay Reduction (Federal Judicial Center 1992)).

The 1982 Federal Judicial Center publication Jury Selection Procedures in United States District Courts, by Gordon Bermant, contains a detailed discussion of several different methods of jury selection. Copies are available on request. See also the section on jury selection and composition (pp. 580–82) in Judge William W Schwarzer’s article "Reforming Jury Trials" in volume 132 of Federal Rules Decisions (1990).

Judges should be aware of the cases, beginning with Batson v. Kentucky, 476 U.S. 79 (1986), that prohibit peremptory challenges based on race. In Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991), the Supreme Court extended Batson to prohibit private litigants in civil cases from using peremptory challenges to exclude jurors on account of race. Peremptory strikes on the basis of gender are also prohibited. J.E.B. v. Alabama ex rel. T.B., 114 S. Ct. 1419 (1994).

The Supreme Court has left it to the trial courts to develop rules of procedure and evidence for implementing these decisions. It has, however, set out a three-step inquiry for resolving a Batson challenge (see Purkett v. Elem, 115 S. Ct. 1769, 1770–71 (1995):

1. The opponent of a peremptory challenge must make out a prima facie case of discrimination based on the totality of the relevant facts. [Footnote 1]

2. The burden of production then shifts to the proponent of the strike to come forward with a nondiscriminatory (i.e., race- and gender-neutral) explanation of the strike.

3. The trial court must then decide whether the opponent of the strike has proved purposeful discrimination.

The Benchbook Committee suggests that judges conduct the above inquiry on the record but outside of the venire’s hearing, to avoid "tainting" the venire by discussions of race, gender, or other characteristics of potential jurors; and use a method of jury selection which requires litigants to exercise challenges at sidebar or otherwise outside of the venire’s hearing and in which no venire members are dismissed until all of the challenges have been exercised. See Jury Selection Procedures in United States District Courts, supra.

These procedures should ensure that prospective jurors are never aware of Batson discussions or arguments about challenges, and therefore can draw no adverse inferences by being temporarily dismissed from the venire and then recalled.

FOOTNOTES:

Footnote 1:    “[A] defendant satisfies the requirements of Batson’s first step by producing evidence sufficient to permit the trial judge to draw an inference that discrimination has occurred.” The defendant does not have to show that it was “more likely than not” that discrimination occurred. Johnson v. California, 125 S. Ct. 2410, 2417 (2005).

BENCHBOOK FOR U.S. DISTRICT COURT JUDGES-2007

Civil Litigation Management Manual 83–84 (Judicial Conference of the United States 2001)

Manual for Complex Litigation, Fourth 150–52 (2004)

For a summary of procedures that courts developed for criminal cases in the first two years after Batson, see Bench Comment, 1988, nos. 3 & 4

For a discussion of voir dire practices in light of Batson, see Chambers to Chambers, vol. 5, no. 2 (1987)