Week 3 Jury Selection

Two main stages of jury selection

• Out-of-court (pre-trial) process that creates the jury pool

• In-court process that involves: voir dire, challenges, and final jury selection

Out-of-court (pre-trial) jury selection process

Governed by The Jury Act and focuses on creating a fair cross-section of the community through random selection from government lists.

General rules for jury eligibility

• Must be a Canadian citizen

• 18 years or older

• Reside in the jurisdiction

• Certain groups are excluded

In-court jury selection process

Potential jurors are summoned

Questioned through voir dire

Challenged for cause or peremptorily (US), until 12 impartial jurors are selected

Jury summons

A legal order requiring an individual to appear for jury duty; failure to appear may result in fines or jail time

Venire (jury panel)

The group of prospective jurors summoned to court for possible jury service

Voir dire

The process where judges and lawyers question potential jurors to assess bias and impartiality.

Challenge for cause

Removal of a juror for a specific reason such as bias or inability to be impartial

Peremptory challenge (US)

Limited removal of a juror without providing a reason; no longer allowed in Canada

Saskatchewan jury eligibility

Anyone 18+, Canadian citizen, Saskatchewan resident with a health card number

Saskatchewan jury summons requirements

Summons must be completed within 5 days and potential jurors must attend court, prior to trial of voir dire, if selected.

Reasons for exclusion from jury service (SK)

Includes elected officials

Educators

Coroners

Active armed forces

Incarcerated individuals

Serious criminal convictions

Incapacity

Language barriers

Key challenges in jury selection

Implicit & explicit bias →Racial biases are vey prominent which is a cause for concern

Lack of representation → with these restrictions & leniency for those to refuse, it questions the representatives of the jury.

Two stages of jury selection in the USA

1. Removal by Judge: the judge can remove a potential juror for ‘cause’.

   • no numerical limit.

   • must be specific and relative to why they cannot be impartial.

2. Peremptory: lawyers strike potential jurors w/o cause.

   • Limited numerical limit

   • Excludes protected or prohibited ground

Racial discrimination in jury selection

Racial bias persists despite legal protections, often through discretionary juror removal

Batson v. Kentucky (1986)

Prohibits excluding jurors based solely on race and established a three-step test to challenge discrimination

Steps:

1. Challenging party must establish that discrimination may have occurred

2. Prosecutor must provide a race-neutral explanation for the juror strike

3. Judge decides whether the race-neutral explanation is valid

Why Batson is ineffective

Race-neutral explanations are easy to fabricate and implicit bias is not addressed

When peremptory challenges occur

After identification, summons, eligibility review, voir dire, and removals for cause

Historical jury exclusion

Laws explicitly excluded jurors based on race, gender, and social class

In modern day Laws are inclusive, but practices still result in exclusion

Factors reducing jury pool diversity

Voter and driver registration lists

Failure to receive summons

Exemptions

Felony exclusions

• This cases some misrepresentation as a large proportion of black people are criminalized.

Familiarity with the case and/or those involved

Death penalty and jury selection

Black jurors are more likely to be removed for cause due to opposition to the death penalty

Best practice for jury composition

Heterogeneous juries improve deliberation quality and impartiality

Real trial jury and mock jury study findings

Racial bias persists in jury selection both before and after Batson

Studies reviewing Batson claims

Courts often accept weak or unsupported race-neutral explanations

Batson design flaws

Intentional discrimination focus therefore overlooks internal factors

1. personal nature

2. ease of excuses

3. reinforcement of stereotypes

Personal nature of Batson challenges

Challenges target the opposing lawyer’s intentions and character.

The ‘personal attack’ discourages lawyers to file claims, as the accusation can have an effect on the accused personal reputation.

Ease of producing race-neutral reasons

Reasons only need to sound truthful, not strong or persuasive

Peremptory challenges and stereotypes

Allow reliance on stereotypes without accountability

How are stereotypes maintained during information gathering?

Stereotypes are maintained through the solicitation and interpretation of information, where people selectively seek out and interpret evidence that supports existing beliefs.

Confirmation bias in jury selection

Unconscious tendency to interpret information in ways that confirm existing beliefs.

Although it is a unconscious action i can still reinforce stereotypes.

Measures to strengthen Batson

Reduce peremptory challenges, encourage challenges, and collect accurate data

What was the problem and context in R. v. Chouhan (2021)?

The issue arose because peremptory challenges were abolished mid-process (September 19, 2019) after Mr. Chouhan’s jury selection had begun. He argued this sudden change violated his Charter rights to a fair trial and a jury trial (ss. 11(d) and 11(f)). The Supreme Court held the change was procedural, applied immediately, and did not infringe Charter rights, allowing the conviction to stand.

What was the issue and ruling in R. v. Kokopenace (2015)?

The case addressed whether the under-representation of Indigenous people on the jury roll violated the accused’s Charter right to a representative jury.

The Supreme Court held that the state must make reasonable efforts to compile a representative jury roll, but perfect representation is not required; since reasonable efforts were made, there was no Charter breach.

Three requirements to ensure representativeness in the jury role process

Broad source lists

Random selection

Adequate delivery of notices

Court’s view on bias in Kokopenace

Acknowledged unconscious racism but presumed juror impartiality