The Jury Selection Process
By Shannon Foley
February 19, 2009 marks the first day of trial in the case of the United States of America v. W.R. Grace, Henry A. Eschenbach, Jack W. Wolter, William J. McCaig, Robert J. Bettachi and Robert C Walsh (U.S. v. W.R. Grace). On February 7, 2005, the government filed an indictment alleging ten counts against the above named defendants for their involvement with a vermiculite mine in Libby, Montana. One of the first stages of the trial process is jury selection. Jury selection is a crucial stage in the trial process because it is when the parties select who will be the audience for the trial and responsible for determining the outcome of the case. This process takes place in an open courtroom where the press and the public are allowed to attend.
Jury selection, also known as voir dire, attempts to find a group of people who can fairly and objectively determine the appropriate outcome of a case. Jurors are randomly selected from the community where the case is heard, in this case Missoula, Montana. The selection is facilitated through the use of public records and must include all classes of the community. The result of this selection is known as the jury pool. Members of the jury pool are asked a series of questions to reveal impartiality, fairness, biases and prejudices. A series of initial questions are asked through a jury questionnaire compiled by both parties and approved by the judge. Subsequent questions are then asked in the courtroom when the jurors appear in the form of a panel. Rule 24 of the Federal Rules of Criminal Procedure indicates that the Court may question prospective jurors or may allow the attorneys to do so. If the Court examines the jurors it must allow the attorneys to either ask follow up questions or provide follow up questions for the Court to ask. Either the attorney or judge asks the jurors questions and then engages in a dialogue with the prospective jurors to obtain more in-depth responses and insights.
In U.S. v. W.R. Grace, Judge Donald W. Molloy, the Chief Judge of the United States District Court, will be leading the questioning and allowing the attorneys on both sides to ask follow up questions. Questioning is usually opened up with general questions directed to the entire panel. Based on responses to the general questions, questioning is then narrowed down to more specific dialogue with individual jurors. The parties then assess biases, impartialities, prejudices and ideas of fairness based on the answers provided by the selected jury pool.
Purpose of Questioning
The questions posed serve a variety of purposes. Although the primary purpose is to gain insight into the objective fairness of the prospective jurors, the questions asked in jury selection also educate the jury about the case at hand. The series of questions addressed to the jurors provides both parties with their first opportunity to describe the case to the audience. Both parties are given a chance to present the various legal theories of the case and lay the groundwork for helping the jury to understand how those theories relate to the facts of the case. Jury selection questioning also allows both parties to reveal problem areas in their own case arguments. Exposing the weak areas of one’s case to the jury before their opponent has the opportunity to do so, allows the attorney to present the issue in a less damaging manner and indicates to the jury that a party is not trying to hide or cover up facts that are undesirable to their case.
Before the questioning in the courtroom takes place, all the jurors from the jury pool must complete the approved juror questionnaire. The juror questionnaire is not uniform in all cases. Although there are common lines of questioning that a juror will likely encounter in all questionnaires, attorneys attempt to narrow down the line of questioning to apply specifically to the facts and circumstances of the case the jurors will be sitting on.
On April 14, 2006 Judge Donald W. Molloy reviewed the parties proposed juror questionnaires and made appropriate modifications. This modified questionnaire was then released to those in the jury pool. Some of the general questions found on the questionnaire include marital status, level of completed education and the type of television shows jurors generally watch. Conflict issues are exposed by asking jurors if they have prior knowledge of the defendants, attorneys, witnesses or victims involved in the case. Other questions provide a rating chart for the juror to indicate how strongly they feel about an issue. For instance, one question provided on the approved juror questionnaire asks jurors to indicate what their feelings are about the federal government and then provides choices of: (1) very negative, (2) negative, (3) neutral, (4) positive, (5) very positive. Similar questions are posed asking jurors to rate their feelings about the FBI and the EPA. These questions are intended to reveal if a prospective juror has strong biases regarding issues or participants in the case. Other questions are somewhat more specific and ask jurors whether they have ever worked in the mining industry or if any of their close friends or family have ever worked in the mining industry. Questions about the mining industry are obvious examples of questions tailored more to the specifics of the case since vermiculite mining was the source of the current charges. Another example of questions focusing on a particular aspect of the case is where the jurors are asked if they have suffered from cancer or have close friends of family that have suffered from cancer. This line of questioning is present because many of the victims in the case have cancer and allege that defendants’ negligence led to forms of cancer and other terminal illnesses. The two previous questions serve to present insight into the views and personal associations of the prospective jurors. Other questions do not present an obvious connection to case issues but carry a more broad approach, such as requesting jurors to indicate what the bumper sticker or decals on their cars or trucks say. This line of questioning provides a more implied insight into some of the ideologies of the individual jurors.
After the members of the jury pool complete their juror questionnaires, the attorneys then have a sense of how to prepare for voir dire in the courtroom. Every attorney has his/her own method of questioning which they employ according to their own discretion (as long as not deemed inappropriate by the judge). However, the categories of questions most commonly employed due to the results they elicit are: close-ended questions, general questions addressed to the entire panel, specific questions addressed to the entire panel, general questions addressed to an individual juror and specific questions addressed to an individual juror. This strategy helps the parties to look for certain indicators from jurors such as: impressions, generalizations and stereotypes, character and personality traits and nonverbal behavior.
Removal of Prospective Jurors
Upon completion of questioning, each party is allowed to remove jurors either through a challenge for cause or a preemptory challenge. A challenge for cause is when a juror is removed due to a specific stated cause or reason. Challenges for cause often occur if the prospective juror knows one of the individuals involved with the case, whether it is one of the parties or attorneys. Individuals may also be removed by a challenge for cause if there are other circumstances, such as their area of employment, which would keep them from being objective jurors. In this case it is likely that a prospective juror who used to work for W.R. Grace would likely be removed for cause. There is no limit on challenges for cause but the attorney must be able to articulate a valid reason for the challenge. Preemptory challenges occur when a party wishes to remove a prospective juror based on their answers to the line of questioning. For a preemptory challenge the attorney does not need to articulate any particular reason to the court for their desire to remove the prospective juror. In the federal system for a felony case the government has six peremptory challenges and the defendant or defendants jointly have ten peremptory challenges. Under no circumstances may a prospective juror be removed for discriminatory reasons.
After each party has exercised their removal options, a panel of 12 jurors will remain as well as between two and six alternate jurors. The alternates will be present throughout the duration of the trial but will only participate in deliberation if one of the original 12 jurors becomes ill or incapacitated and cannot participate in the remainder of the trial. The desired outcome of the jury selection process is that the remaining panel of chosen jurors will be able to objectively and fairly determine the appropriate outcome of the case.
 Roger Haydock & John Sonsteng, Trial Advocacy Before Judges, Jurors, and Arbitrators, 214 (3d ed., West 2004). Id at 218-219. Id at 235.
 Id at 242.