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C. JURY SELECTION

18. Encourage Mini-Opening Statements Before Voir Dire

To make examination of the jury panel more meaningful to the parties, the court and the jurors themselves, judges should have counsel give a brief, non-argumentative opening statement about their cases before questioning.

Though rarely utilized, having counsel give mini-opening statements about their cases to the entire jury panel before voir dire would have value in many cases.(1) For one, examination of the panel following brief non-argumentative factual statements should result in a better test of juror bias, since the potential jurors would know more about the case, its facts and the issues. In other words, they would have a better frame of reference from which to respond to questions by court and counsel. Second, having heard the statements by counsel, the prospective jurors would better understand the reasons why certain questions were being asked. Juror satisfaction with the jury selection process would be enhanced. Mini-openings would not, however, substitute for the usual, full-blown opening statements by counsel following jury selection.

The committee recommends that this innovative technique be utilized by court and counsel on a more frequent basis since it appears to hold promise for improved jury selection. Whether the technique is employed in a particular case should be left to the trial judge's discretion.

To encourage greater use of mini-openings prior to voir dire, the committee recommends that the Arizona Jury Management Standards be amended by adding Standard 7(b), which would read as follows:

7(b) Judges may call on the attorneys to present condensed opening statements prior to voir dire examination in order to make voir dire more meaningful to the parties and jurors.

Although trial judges may well have present authority to require that mini-openings be given,(2) to remove any question the committee suggests that Civil Rule 47(b)(2) and Criminal Rule 18.5(c) be amended by adding the following language:

The parties may, with the court's approval, present brief opening statements to the entire jury panel, prior to voir dire. On its own motion the court may require counsel to do so. Following such statements, if any, the court shall conduct a thorough examination of prospective jurors.

19. Allow Judges to Choose Between the "Struck" and the "Strike and Replace" Methods of Jury Selection

Civil and criminal rules should be revised to allow trial judges to choose between jury selection methods, using either the "struck" system (all panel members participate in voir dire) or the "strike and replace" procedure (only the minimum number of jurors needed for strikes participate), depending on the judge's preference.

There are two basic methods of jury selection in use, the "strike and replace" system and the "struck" jury method. The more traditional method, "strike and replace," is the one required by Arizona's rules.(3)

The "strike and replace" system generally works as follows: A number of jurors equal to the size of the trial jury, including any alternates, plus the number of peremptory challenges allowed by law are called into the "box." Only those jurors are examined by the judge and counsel. Requests to excuse jurors for cause and hardship are made, heard and ruled upon while the jurors are present. Peremptories are taken in the presence of jurors also. When a juror is removed for cause or hardship or is peremptorily removed by one of the parties, the juror is excused in front of the other jurors. Another juror is called forward to replace the departing juror. The replacement is then asked for his or her answers to all previous questions. The replacement must also read answers to questions on an easel. This process continues until all challenges for cause and peremptory challenges have been exhausted and the required number of jurors plus alternates remain. The extra jurors not called upon to participate are thanked and excused.

The "struck" method calls for all of the members of the panel to be sworn and to answer voir dire and easel questions. After voir dire, the panel is excused. With the jurors absent, the judge rules upon requests for excusal due to undue hardship and hears and rules upon requests for excusal for cause. Strikes are taken from the randomized list of jurors starting with the first juror whose name remains and ending with the last juror needed for the jury trial, alternates and the number of peremptory challenges allowed by law. After the peremptory strikes have been taken, the judge resolves any Batson issues. The panel then returns to the courtroom. The names remaining on the "strike list" constitute the trial jury plus alternates. The remaining jurors who were stricken by the parties and whose names did not make the "strike list" are then thanked and excused.

A number of authorities express a preference for the "struck" method of jury selection,(4) citing the following advantages:

  1. It increases juror participation, since all members of the panel respond to voir dire;
  2. It is capable of producing less bias in a jury than the alternative;
  3. Challenges for cause and use of peremptories occur outside the jurors' presence, eliminating the embarrassment to a juror when excused in front of the other panel members;
  4. The "struck" method avoids having to call upon replacement jurors to give answers to questions that might have been asked much earlier in the process and expecting them to remember all the questions and their answers;
  5. There is no reason to hold back on use of peremptories, given full knowledge of counsel of who will remain on the panel;
  6. Remedying a Batson violation is easier, since court and counsel can view all the strikes and a ruling can be made before any juror is excused; under the "strike and replace" system voir dire must being anew if a Batson violation is found; and
  7. Overall, it can take no more time than the older "strike and replace" method.

Advocates of the "strike and replace" method contend that it is less time consuming than the "struck" method since only a portion of the jury panel is questioned. In addition, they say that this traditional method is the one most judges and lawyers are familiar with.

The committee recommends that Civil Rule 47 and Criminal Rule 18.5 be revised to permit the trial judge to use either the "struck" or the "strike and replace" jury selection method, in the judge's discretion.(5)

20. Assure Lawyers the Right to Voir Dire in All Cases

Lawyers for the parties ought to be entitled to examine prospective jurors in both civil and criminal cases. Trial judges should monitor lawyer voir dire to ensure that interrogation by counsel remains consistent with the purposes of voir dire and to safeguard juror privacy.

After discussing and weighing the advantages and disadvantages of lawyer voir dire, the committee members voted overwhelmingly to recommend that the Supreme Court amend the rules to create the right to lawyer voir dire in criminal cases. The principal reason for the committee's position is that lawyer participation in voir dire is more likely to result in a fair and impartial jury than if voir dire is conducted by the judge alone.

Civil Rule 47(b)(2) was amended in 1991 to assure lawyer voir dire in civil cases. The committee suggests that Criminal Rule 18.5(d) be conformed to its civil counterpart.

The suggested revision also reflects the committee's belief that the initial examination of the panel by the judge ought to be "thorough" rather than merely "preliminary" and that the rules ought to make clear that use of written jury questionnaires is permitted.

Suggested change to Criminal Rule 18.5(d) and Civil Rule 47(b)2:

The court shall conduct a thorough oral examination of prospective jurors. Upon the request of any party, the court shall permit that party a reasonable time to conduct a further oral examination of the prospective jurors. The court may impose reasonable limitations with respect to questions allowed during a party's examination of the prospective jurors, giving due regard to the purpose of such examination. Nothing in this Rule shall preclude the use of written questionnaires to be completed by the prospective jurors, in addition to oral examination.

21. Judges Should Receive Training in Voir Dire

All judges, but especially new judges, should receive mandatory training and education in the conduct of voir dire.

At present, only a few minutes of a new judge's training are devoted to examination of the jury panel.

Given the importance of voir dire to a fair trial, all trial judges, but especially new ones, should be required to attend educational programs devoted to voir dire and the judge's role in it.

22. Protect Juror Privacy During Voir Dire

In addition to monitoring lawyer questions to prevent unreasonable and unnecessary intrusions into the privacy of jurors' lives, the trial judge should provide alternatives for jurors who do not wish to answer particular questions in open court. The jury panel should be informed of these options prior to questioning.

Given the parties' needs to acquire considerable information about prospective jurors during voir dire, the jurors' rights to privacy and the need to accommodate these competing interests, the committee recommends the following:

a.  That Standard 7(d) of the Arizona Jury Management Standards be amended to read as follows:

The judge should ensure that the privacy of prospective jurors is reasonably protected, and that the questioning of jurors is consistent with the purpose of the voir dire process.

b.  An official comment should be added following Standard 7(d) to read as follows:

A juror's right to privacy must be balanced with a party's right to be aware of a juror's relevant background and qualifications. Reasonable inquiry of jurors is mandatory. However, every juror ought to be given the opportunity to answer questions of a sensitive or embarrassing nature by written questionnaire or in private, with only the judge, the parties, counsel and the court reporter present.

c.  Protecting juror privacy during voir dire should be included among the subjects in the educational program on voir dire recommended for judges.(6)

23. Continue Peremptory Strikes in Present Form and Number

Peremptory strikes should be retained in their present number, as they are necessary for the selection of a fair jury.

Following considerable discussion concerning the need for and fairness of peremptory strikes as part of the jury selection process, a substantial majority of the committee favored retaining peremptories in their present form. The availability of automatic strikes was thought essential to the seating of a fair and impartial jury. A minority would abolish peremptories as being inherently discriminatory and arbitrary and not needed for a fair trial. As an alternative, it was suggested that the peremptory strike be retained, but supported by a Batson-type statement of objective, verifiable and non-arbitrary grounds. The committee rejected the proposed modification.

There was virtually no support for increasing or decreasing the number of peremptory challenges presently allocated to the parties by the civil and criminal rules.

24. Vigorously Enforce Batson Safeguards

In order to protect the rights of the parties and of potential jurors, trial judges should be vigilant and, where necessary, take the initiative to assure that there is an objective and verifiable race, ethnic and gender-neutral basis for every peremptory strike of a potential juror.

Peremptory strikes can not be used to remove potential jurors on the basis of race, ethnicity or gender.(7) The committee discussed whether to recommend to the Supreme Court that Batson protection be extended administratively to potential jurors who are members of groups defined by factors such as age, religion, income and disability.

The committee concluded that disabled persons called for jury duty, are now entitled to Batson-like protection under the Americans with Disabilities Act,(8) which forbids public and some forms of private discrimination against disabled persons solely on account of their disability.

Although committee members agree with the holding in Batson and its progeny, a majority of the committee decided not to make any recommendation that Batson protection be expanded to these other groups. It was felt that any expansion should and will be considered in the context of cases that will come before the appellate courts. Therefore, any such recommendation by the committee might be viewed as intruding upon the judicial function. In addition, some members believe that the Supreme Court has already extended Batson protection to such groups by promulgating Jury Standard 1 in 1992.(9) The committee hopes the Court will address Jury Standard 1 in this context.

The committee does recommend that trial judges take an active role in enforcing Batson by requiring, for example, on the court's own initiative if necessary, that the party using a peremptory strike to remove a person accorded Batson protection be required to make the required showing, i.e., that there is an objective, verifiable and race, ethnic or gender-neutral basis for the strike. Such action may be necessary to safeguard potential jurors' rights not to be removed from the panel for discriminatory reasons.

Accordingly, the committee recommends that Arizona Jury Management Standard 9 be amended as follows:

STANDARD 9: Peremptory Challenges

The number and procedure for exercising peremptory challenges should be in compliance with existing Arizona Law. The trial judge shall assure that peremptory challenges are not used to discriminatorily remove potential jurors.

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1. 1Strawn & Munsterman, Helping Juries Handle Complex Cases, in In the Jury Box, 180, 184 (L. Wrightman, S. Kassim & C. Willis eds 1987).

2. 2See Civil Rule 39 (b) and Criminal Rule 19.1 (a).

3. 3See Civil Rule 47 and Criminal Rule 18.5.

4. 4See Munsterman, Strand and Hart, The Best Method of Selecting Jurors, The Judges Journal 9 (Summer 1990); A.B.A. Standards Relating to Juror Use and Management, Standard 7, at 68-74 (1983); and "The Jury Project," Report to the Chief Judge of the State of New York 58-60 (1994).

5. The proposed text of the amendments to the rules is found at App. A.

6. 6See Recommendation 22.

7. 7Batson v. Kentucky, 476 U.S. 79 (1986); J.E.B., Petitioner v. Alabama, ex rel. T.B., 114 S.Ct. 1419 (1994) State v. Cruz, 175 Ariz. 395, 857 P.2d 1249 (1993).

8. 842 U.S.C.A. 12111 et seq.

9. 9"Standard 1: Opportunity for Jury Service. The opportunity for jury service should not be denied or limited on the basis of race, national origin, gender, age, religious belief, income, occupation, or any other factor that discriminates against a distinctive group in the jurisdiction." See App. C-1.