Jury Selection | Minnesota Trial Lawyer (Part 1)

Jury Selection – Minnesota Trial Lawyer

When people envision an American jury trial, the most common scenes that come to mind are most likely closing arguments and cross-examination.  These are the parts of trial that contain the most drama, the most fireworks, and are the parts of a jury trial that are naturally suited to being dramatized on television and film, and increasingly in the various popular podcasts that we all enjoy.  People rarely think of jury selection as an important part of a criminal trial, but the truth is that there is really no portion of the trial that can be considered unimportant.  In fact, the selection of the people who will be seated to judge the facts of the case, and render a verdict of guilty or not guilty, is among the most important parts of the criminal trial process.  A case that may be a close call factually can be won or lost in jury selection.  It is not too strong a statement to say that a trial can be functionally over – that is, the outcome of the trial nearly secured – by the time jury selection is complete.  This is why the process of selecting jurors is so fundamentally important.

How Are Prospective Jurors Called?

A criminal defendant has a right to a trial by his or her peers.  This means, at least geographically speaking, that jurors will be called from the specific county in which the case is to be tried.  Potential jurors are selected at random from from driver’s license, state identification, and voter registration records maintained by state government.   Potential jurors will receive a summons that directs them to appear for jury service at the county courthouse.  The length of jury service depends on the county in which a juror lives, but service cannot exceed four months.

Not every person is permitted to serve as a juror.  The law places limitations on who is qualified to serve.  A juror must be a United States citizen, a resident of the county in which the case is heard, at least 18 years old, able to communicate in the English language, physically and mentally capable of serving, and a non-felon (unless civil rights have been restored).  Lastly, a person must not have served as a state or federal juror in the preceding four years.  Persons who do not meet these criteria will be excused from jury service.  If a person does meet these criteria and is summoned to serve, they will receive an orientation at the courthouse on their first day.  The Minnesota Judicial Branch maintains a useful handbook, as well as an informative video, for prospective jurors, here.

At the Courthouse

Following orientation, prospective jurors will report to a given courtroom at the courthouse to potentially serve as jurors in a trial.  This group of potential jurors is often referred to as a “panel” or “jury panel.”  In Minnesota, as in many other states, the process of jury selection is accomplished collaboratively, albeit adversely, through a process of question-and-answer by the judge and the attorneys.  Like other parts of the trial, there are specific rules that govern how jury selection proceeds.  These rules are found in the Minnesota Rules of Criminal Procedure, and the caselaw developed around the rules and the Minnesota and Federal Constitutions.  In Minnesota state court, district court judges have some latitude as to how jury selection is conducted, however, the rules prescribe three methods for selecting a jury.  These include a “preferred” method, an “alternate” method, and a third method for selecting jurors in first-degree murder cases.

The Preferred Method

Under the preferred method, the trial judge must draw from the panel a sufficient number of jurors.  A criminal jury trial allows for 12 jurors (this is why the movie 12 Angry Men is not called 13 Angry Men).  But because each party is permitted to remove some prospective jurors for no reason (called peremptory strikes – the defendant gets five, and the prosecution gets three), and because there is often the need to have one or two alternative jurors in case one of the 12 sitting jurors becomes ill or otherwise unavailable during the trial, the district court must summon at least 21 or 22 people for jury selection (12 potential jurors + 1 or 2 alternate jurors + 8 additional potential jurors to account for the parties’ use of peremptory strikes).

This grouping of prospective jurors – the panel – must take their pace in the jury box and be sworn in.  Then, the prospective jurors must be examined, first by the district court judge, then by the parties, beginning with the defendant.  A challenge “for cause” (discussed in more detail below) may be made at any time during jury selection, by any party.  Additional challenges may also be made at the close of jury selection.  When the court excuses a prospective juror for cause, another must be drawn so that the number in the jury box remains the same as the number initially called (the 21 or 22 prospective jurors described above).  After all challenges for cause have been made, the parties may alternately exercise peremptory challenges, beginning with the defendant.  Recall that the defendant gets five peremptory removals, whereas the prosecution gets three.  Once peremptory challenges have been exercised, the resulting body of remaining jurors will constitute the jury, plus one or two alternates.  The remainder of jurors will be excused to the jury office to potentially serve on other juries.

(In a first-degree murder case, the preferred method is for jurors to be examined individually and outside the presence of other jurors.  The parties must exercise for-cause challenges and peremptory strikes at the time each potential jury is examined individually).

The Alternate Method

The alternative method is not vastly different from the preferred method, and can be a useful depending on the circumstances of a given case.  In our experience, it tends to be more expeditious, that is, it tends to make the process of jury selection faster.  Faster isn’t automatically better, but it tends to push the parties to select a jury quicker.  Under the alternative method, the court still must draw prospective jurors comprising the total of the number of jurors required and the number of alternates.  Similarly, the trial judge must examine prospective jurors first, followed by examination by the defendant or his lawyer.  However, unlike the preferred method, the alternate method allows the lawyers to exercise their peremptory strikes during, rather than at the end of, jury selection.  Lawyers will sometimes call this method the “strike-as-you-go” method, because under this method, the parties will exercise their peremptory strikes as they examine potential jurors, as opposed to using all of their strikes at the very end.

Removing a Juror for Cause

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed….”  Additionally, the right to an impartial jury is based on a defendant’s right to due process of law.  Since at least 1961, it has been well-settled that the bias of even a single juror violates a defendant’s constitutional rights because the impartiality of the adjudicator goes to the very integrity of the legal system.

Under the Minnesota Rules of Criminal Procedure, a juror may be removed for cause upon the following grounds:

1. The juror’s state of mind – in reference to the case or to either party – satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.

2. A felony conviction unless the juror’s civil rights have been restored.

3. The lack of any qualification prescribed by law.

4. A physical or mental disability that renders the juror incapable of performing the duties of a juror.

5. The consanguinity (blood relation) or affinity, within the ninth degree, to the person alleged to be injured by the offense charged, or to the person on whose complaint the prosecution was instituted, or to the defendant, or to any of the attorneys in the case.

6. Standing as a guardian, ward, attorney, client, employer, employee, landlord, tenant, family member of the defendant, or person alleged to have been injured by the offense, or whose complaint instituted the prosecution.

7. Being a party adverse to the defendant in a civil action, or a party who complained against the defendant, or whom the defendant accused, in a criminal prosecution.

8. Service on the grand jury that found the indictment or an indictment on a related offense.

9. Service on a trial jury that tried another person for the same or a related offense as the pending charge.

10. Service on any jury previously sworn to try the pending charge.

11. Service as a juror in any case involving the defendant.

Among the 11 grounds on which a juror may be challenged for cause is the circumstance in which a prospective juror’s “state of mind … satisfies the court that the juror cannot try the case impartially and without prejudice to the substantial rights of the challenging party.”  The party challenging a prospective juror on this particular ground has the burden of establishing that the prospective juror has “actual bias” toward the case or a party. To satisfy this burden, the challenging party must show more than the mere existence of any preconceived notion as to the guilt or innocence of an accused.  Instead, the challenging party must show a “strong and deep impression that would prevent the jury from laying aside an impression or opinion.”

To determine whether a juror is biased, trial courts engage in a two-step process. First, the court must determine whether the juror expressed what is called “actual bias.”  Second, the court must determine whether the juror was properly rehabilitated, which occurs if the juror states unequivocally that he or she will follow the district court’s instructions and will set aside any preconceived notions and fairly evaluate the evidence.  The Minnesota Supreme Court has found rehabilitation inadequate when jurors state things like they will “try to be fair,” “do their best to be impartial,” that the “think they could” set aside their bias.  For example, a juror was found to be biased where she said she would be more inclined to believe a police officer’s testimony and then said that she would “try” to be fair.

Juror Bias – A Case Commentary in Jury Selection

A recent non-precedential case illustrates the topic of juror bias, and also the reasoning used by the Minnesota appellate courts in deciding issues surrounding juror bias.  In State v. Danberry, the defendant was charged with five counts of first-degree criminal sexual conduct and four counts of second-degree criminal sexual conduct following sexual abuse allegations made against him by a middle-school aged girl.  During jury selection, a prospective juror revealed that her daughter suffered repeated sexual abuse by a neighbor over the course of a year.  The juror repeatedly expressed doubt about her ability to be fair and impartial in this case.  The defendant asked the judge to strike the juror for cause based on juror bias. Then, the judge questioned the juror on her ability to be impartial, and, notwithstanding Danberry’s challenge for cause, permitted the juror to sit on the jury. The jury found Danberry guilty on all nine counts.

Danberry appealed his convictions on the single issue of a biased juror.  On appeal, the court of appeals reversed Danberry’s convictions, finding that the juror showed evidence of bias through her repeated expressions of doubt, and her concern that she could not be fair and impartial due to her daughter’s experience of sexual abuse, and that the juror was not rehabilitated. The following facts taken from the Danberry appellate opinion reveal the juror’s “actual bias”:

The juror disclosed on her jury questionnaire that a neighbor sexually abused her daughter, leading her to doubt her ability to be impartial in this case. Under questioning by Danberry’s attorney, the juror further revealed that, for a year, the neighbor abused her daughter while she was baby-sitting at the neighbor’s house. When asked if she had reason to be concerned about her impartiality, she said, ‘I honestly don’t know that I can be not prejudiced in this kind of case.’ When asked if she could follow the judge’s instruction to put aside her experiences and decide just on the evidence and the jury instructions, she replied, ‘I do believe I can be fair. I-I don’t try to judge anybody by circumstances I’ve been involved in. I just … I just can’t promise that I can. I don’t know that it won’t come back in.’ When asked how certain she was of her ability to be fair, she replied, ‘[H]onestly, I am uncertain, yes. I will admit, I am uncertain.’ When asked if she believed her daughter’s abuse would ‘creep into [her] consciousness’ while listening to testimony during the trial, she replied, ‘My thought is that if it was anything sounding familiar, yes, it would.’

On appeal, the court of appeals reversed Danberry’s convictions, writing that

the juror’s multiple expressions of doubt and uncertainty in this case were probative of bias. The juror believed that her daughter’s abuse would creep into her mind if there was similar testimony in this case, suggesting that her daughter’s abuse would bias her interpretation of the testimony. The juror repeatedly expressed doubt and concern about her ability to judge fairly, impartially, and only on the evidence, saying, ‘I honestly don’t know’ and ‘I am uncertain.’ The only time the juror said she believed she could be fair, she immediately followed up with the caveat ‘I just can’t promise that I can. I don’t know that it won’t come back in.’ These expressions suggest that the juror’s strong and deep emotions about her daughter’s sexual abuse would prevent her from judging Danberry based solely on the evidence at trial.

…

The structural, constitutional guarantee of an unbiased jury is so fundamental to criminal trials in our state and nation that courts and prosecutors must treat a juror’s mere expressions of doubt as evidence of actual bias. Based on the juror’s multiple statements of doubt and uncertainty, we conclude that the district court did not clearly err when it implicitly found that the juror’s statements were evidence of actual bias.

There are a plethora of cases in the case law on the topic of juror bias.  Every case is unique, but the touchstone of the inquiry remains the two-part test set forth above: (1) whether the juror expressed actual bias; and (2) if so, whether the juror was properly rehabilitated.  If this two-part test is not satisfied, a juror should not be seated on the jury to sit in judgment of the defendant.  This does not mean that the juror is not a fair person, it just means that they are not fit for the facts of the particular case.

In this post, we have only just begun to scratch the surface of the myriad topics and issues that can arise during the course of jury selection.  In future posts, we will explore such topics as the use of peremptory strikes, challenges that a party may raise to the other side’s use of peremptory strikes, the rule of the district court judge in examining and instructing prospective jurors, and the “art” and “science” (or both) of jury selection in general.

Minnesota Criminal Trial Lawyers

The attorneys at Lundgren & Johnson have a wealth of criminal jury trial experience.  Our attorneys often conduct jury trials as a team, with the work of the trial divided among the attorneys.  Whether your case is scheduled for a first appearance or has a trial date scheduled, we are happy to provide prospective clients with a consultation in order to discuss their case and determine if we are the right lawyers to take on your case.  We can be reached at 612-767-9643, or through the contact form on our website.