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Jury selection is a crucially important part of every criminal and civil trial in this country. Judges use the selection process to find a panel of jurors who will fairly and honestly try the case, and trial lawyers look for fair-minded jurors who might be just a little more fair to their clients. The importance of jury selection to the administration of justice is illustrated by the story of a conversation between an English barrister and a Texas trial lawyer. The Texan asks the barrister when a trial officially starts under the British system. The barrister replies, “My right honorable friend, under our system of justice, the trial starts when the jury is seated and sworn.” The Texas trial lawyer smiles, pauses for effect, and responds, “Well, Pardner, at that point in Texas the trial is over!” That simple story helps explain the meteoric growth of the jury consulting industry in this country and the laborious voir dire of prospective jurors in high-stakes trials. But, as important as the process of jury selection is, there is no uniform system for it in our federal courts. Currently, federal district judges have broad discretion in devising their own personal systems for selecting jurors. As a result, there are virtually as many different ways of selecting jurors in our federal judicial system as there are federal trial judges. With 678 federal district judges nationwide, that makes for a lot of variety in the manner jurors are chosen for trials. Length of time varies widely That variety is graphically demonstrated by the juxtaposition of two federal criminal trials currently in the national media spotlight. In the Enron corruption trial of Kenneth Lay and Jeffrey Skilling, presiding Judge Simeon Lake pared down a pool of 100 prospective jurors and, amazingly, had a jury of 12 and four alternates selected and sworn in a single day. By marked contrast, in the sentencing phase of the trial of confessed al-Queda conspirator Zacarias Moussaoui, selection of the jury, which will decide whether Moussaoui will be put to death or given life in prison, took seven days of questioning by the court as part of a full month of jury-selection proceedings. In that case, 500 prospective jurors from Northern Virginia filled out detailed questionnaires designed by presiding Judge Leonie Brinkema, who selected questions for the jurors from a list of 89 submitted by prosecutors and 306 by defense counsel. Of course, selection took longer in the Moussaoui case at least in part because of the disruptive conduct of the defendant and because the jury had to be death penalty “certified.” More recently, in the federal corruption trial of former Illinois governor George Ryan, which took more than five months to try, after eight days of deliberation a Chicago newspaper revealed that two of the jurors had lied on their questionnaires about prior convictions. They were thrown off the jury, replaced by two alternates, and the jury’s deliberations started over from scratch, resulting in his conviction on all counts. While some state courts do background checks on potential jurors as a matter of course, federal courts do not. Many are wondering why background checks are not standard procedure in federal court jury selection. The use of juror questionnaires in high-stakes/high-visibility trials has become more and more common in recent years. The completed questionnaires give the judges a comprehensive paper record on which to excuse potential jurors for cause, and give the lawyers information on which to base their peremptory challenges. Legal scholars argue that questionnaires are a good substitute for extended voir dire questioning of jurors in open court and ultimately streamline the jury-selection process. But seasoned jury trial lawyers say that there is no substitute for their opportunity to personally question potential jurors individually in open court. They argue that looking each juror in the eye and observing their body language as they answer questions designed to give a preview (or even overtly argue) their case, is indispensable. The jury-selection process in federal courts differs from circuit to circuit, and even from judge to judge within a single district. While consistency may be the “hobgoblin of little minds,” it should be a sacred goal of our system of justice. The jury-selection process in federal courts should have some semblance of uniformity. Formulating a set of uniform jury-selection standards that could be utilized by our federal courts would be beneficial to the judiciary and trial lawyers alike. Such standards would be a useful guide for trial judges in the jury-selection process and give trial lawyers a better understanding of their role in the selection process from courtroom to courtroom. Nothing new about uniformity No doubt, some judges will view this proposal as yet another unnecessary incursion on the exercise of their discretion in managing the trial of a case. But certainly the concept of uniform rules is nothing new. Judges regularly follow uniform local procedural rules, give model jury instructions and, like it or not, are required to consult the uniform sentencing guidelines. In short, federal judges already are governed by uniform rules and procedures, so they shouldn’t object to following standardized procedures for the selection of those juries of 12 “tried and true.” For the most part, the patchwork quilt of diverse jury selection systems used by our federal judges have worked and worked well over the years, but, adding an element of consistency or even uniformity to the process, would enhance fair play and due process in our judicial system. To test this thesis, consider the reaction, both here and abroad, if jury selection in the Moussaoui trial had been completed in a day, and in the Enron corruption case it took a full month to seat a jury. Not a pretty picture. Gerald Skoning is a senior partner at Chicago’s Seyfarth Shaw.

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