Academic journal article The William and Mary Bill of Rights Journal

The Unconstitutionality of Criminal Jury Selection

Academic journal article The William and Mary Bill of Rights Journal

The Unconstitutionality of Criminal Jury Selection

Article excerpt



A. Historical Rationales for a Jury Trial....................1063

B. Modern Jury Selection Procedures....................1067


III. POSSIBLE REMEDIES....................1076



I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.1

The Sixth Amendment guarantees the right to a trial by an impartial jury to those criminally accused.2 As with every provision in the Bill of Rights, the Sixth Amendment right to a jury trial serves to protect the individual from the government.3 This right is among those that the Supreme Court has deemed fundamental and incorporated to the states.4 It constitutes an especially important barrier between the government and the individual, because it grants members of the community the authority to participate as a check and balance against governmental prosecution of another member of the community.5 The importance of the jury trial right in criminal cases is especially evident when contrasted with the Seventh Amendment right to a jury trial in civil cases.6 The Seventh Amendment right to a jury trial has not been incorporated to the states.7 More tellingly, a jury trial is the default in serious criminal cases;8 by contrast, a party in a civil case must affirmatively request a jury trial.9

Despite the clear importance of the criminal jury trial, two disturbing trends have emerged in criminal adjudications. First, criminal defendants waive this right in the vast majority of criminal cases.10 By resolving their cases through plea bargaining, criminal defendants willingly submit themselves to the government and forgo the opportunity to allow their peers to participate in the adjudication.11 Second, of the cases that go to trial, defendants are counterintuitively more likely to be convicted in a jury trial than in a bench trial.12 The comparative infrequency of the jury trial and of acquittals in those atypical cases presented before juries contradicts the Founders' vision of juries as a vital protection for the defendant against the government. The aim of this Article is not to explain this inconsistency, but instead is to expose a conflict between the Founders' intentions and the practical reality of the jury trial in criminal cases. This Article contends that jury selection procedures, which grant the prosecution equal control with the defendant, undermine the defendant-protection rationale of the Sixth Amendment. Resolution of this problem has the potential to resolve the waiver and conviction issues by encouraging the defendant to assert his Sixth Amendment right and by reducing the jury conviction rate.

Although jury trials in criminal cases are the exception, jury selection procedures have given rise to many constitutional claims.13 Presently, these procedures grant defendants and prosecution equal control over jury selection.14 Each side is entitled to unlimited for-cause challenges, which allow them to strike prospective jurors who demonstrate bias or partiality,15 and a limited number of peremptory challenges, which allow the parties to exclude prospective jurors for any reason or no reason.16 Perhaps the most extensively debated aspect of jury selection is the discriminatory use of peremptory challenges.17 However, focus on the Equal Protection rights of the prospective jurors overlooks the core problem withjury selection procedures because it deflects the attention from the person whom the jury is designed to protect: the defendant.

This Article submits that the more fundamental constitutional issue with prosecutorial peremptory challenges, and withjury selection more broadly, is that allowing prosecutors to participate equally in jury selection undermines the rationale for the defendant's Sixth Amendment right to a jury. …

Search by... Author
Show... All Results Primary Sources Peer-reviewed


An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.