Jury selection – also called Voir Dire – has been in the news this week. With the first criminal trial of a former President getting underway, the process of finalizing the 12 individuals who will return a verdict has become an item of intense interest. Lawyers and court watchers were surprised to read Mr. Trump's social media post from the first day of jury selection in which he expressed surprise that he did not have an unlimited number of strikes.

His post notes, “I thought STRIKES were supposed to be ‘unlimited' when we were picking our jury.”

While this high-profile case requires deliberate and careful jury selection, which may take longer than a typical trial, no lawyers have unrestricted say on who ends up on a jury. With this background, here's a quick tour of the Voir Dire process.

Voir Dire is the legal term for the process of questioning potential jurors during the jury selection process. The goal is to ensure that justice is administered fairly and impartially. In most jurisdictions, it is a multi-stage endeavor. First the judge questions the potential jurors, and then lawyers for each party have an opportunity to ask relevant questions.

As the process plays out, lawyers can ask the judge to excuse potential jurors “for cause,” which means that the individual has – by words or actions – shown bias or prejudice for or against any party or otherwise demonstrated their unfitness to serve as a juror. There is no limit on how many potential jurors can be challenged and excused for cause.

Once questioning by the judge and all lawyers is complete, in most jurisdictions each side can excuse, or strike, a certain number of potential jurors for any non-discriminatory reason. A prohibited or illegal strike would be one based on race or sex or some other protected classification. These pre-emptory strikes do have a number limit. Typically each side has four pre-emptory strikes, though in specific cases that number may end up higher or lower. The strikes are dealt with in a turn-by-turn basis. Typically, the plaintiff or prosecution (the side bringing the case) would go first and excuse one potential juror. Then the defense would go, and so on until the proper number of empaneled jurors is reached.

I say that the pre-emptory process is what happens in most places because Arizona is the important outlier. It is the only jurisdiction in the United States that has ended the process of pre-emptory juror strikes. That means that parties starting trial have no right to excuse jurors unless they can convince the judge that the potential juror has shown bias or prejudice or some other unfitness to serve. It is no longer enough in Arizona to simply have a bad feeling about someone as relates to your case.

This is a sea change. Lawyers and judges are still figuring out the contours of the process under this new state of the law. It focuses much more on detailed questioning of potential jurors to understand their values, beliefs, and mindset. And it requires practice and skill to harness that information into a distilled, competent objection to their presence on the jury. In our office we spend a great deal of time working on the specific approaches and questions that will allow us to best protect our client's right to a fair trial. If you have questions about the jury selection process or Arizona's move away from pre-emptory strikes, and our approach to jury selection, please be in touch.