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December 19, 2017

"The Unconstitutionality of Criminal Jury Selection"

The title of this post is the title of this notable new paper authored by Brittany Deitch and available via SSRN. Though focused on jury rights rather than sentencing, the ideas here might be especially significant and impactful in jury sentencing arenas (both capital and non-capital). Here is the abstract:

The criminal defendant’s right to a jury trial is enshrined within the U.S. Constitution as a protection for the defendant against arbitrary and harsh convictions and punishments.  The jury trial has been praised throughout U.S. history for allowing the community to democratically participate in the criminal justice system and for insulating criminal defendants from government oppression.  This Article asks whether the jury selection process is consistent with the defendant-protection justification for the Sixth Amendment right to a trial by jury. Currently, the prosecution and defense share equal control over jury selection.  Looking to the literal text of the Sixth Amendment, the landmark case on the right to a jury trial, and the Federal Rules of Criminal Procedure for guidance, this Article explains that jury selection procedures undermine the defendant-protection rationale for the Sixth Amendment right to a jury trial.  Because the Sixth Amendment grants this right personally to the defendant and the Supreme Court has construed this right as intending to protect the defendant from governmental overreach, the prosecution should not be entitled to select the very jury that is supposed to serve as a check against its power.  After concluding that symmetrical power in jury selection undermines the constitutional purpose of the jury trial, this Article proposes two possible remedies.

December 19, 2017 at 11:39 AM | Permalink


Hats off. Clever parsing of the Sixth Amendment.

Posted by: David Behar | Dec 20, 2017 2:19:02 PM

While creative and perhaps thought-provoking, this idea suggests that the author lacks an adequate grasp on the purpose of voir dire or even trials in general. I speculate, but I suspect the author has never conducted voir dire
and tried a criminal case to a jury (I have done so as a prosecutor and a defense attorney). If the author had, perhaps she'd understand that the ultimate goal of any trial is to find the truth. In a criminal case, the burden of proving the charges and persuading the jury is on the state, but the goal--finding the truth--remains the same. The state's interest in finding the truth is not the interest of a faceless, mindless bureaucracy but the interests of the community whom the state's attorneys represent. Excluding prosecutors from jury selection might well "protect" the defendant more--in the sense that it will hand the defendant yet another substantial advantage over the state, beyond the significant advantages conferred by the burden of proof and persuasion. But it would do no way enhance the fundamental truth-seeking function of a jury trial. It would not be fair to the community whom prosecutors represent. It would merely allow the defense to stock a jury with venire members who are biased in favor of the defendant. That is not conducive to the truth-seeking function of a trial.

Posted by: Thomas | Dec 20, 2017 6:14:07 PM

The purpose of a civil trial is to seek the truth. That's why there are depositions,more meaningful scientific standards, and the ability to test a plaintiff's case before trial with a motion for summary judgment. In a civil trial, it is a crime to bribe or threaten a witness. Civil defendants are generally not stripped of their property before trial, nor is it legal for their opponents to monitor their personal conversations or search through their homes and businesses.

Criminal trials strip these necessary protections away because the truth is not the end goal. If criminal defendants in a murder case had a fraction of the protections we endow to a supermarket in a slip and fall, prosecutor's win rates would dramatically decline. And part of that unfair advantage is that the State, in addition to setting the rules for who makes it into the venire, now have the relatively recent innovation of peremptory strikes, a practice unheard of at the time of the Founding or the passage of the 14th Amendment.

These strikes may lead to prosecutors winning more often, but there's no evidence they make trials even a little bit more accurate.

Posted by: Andrew Fleischman | Dec 20, 2017 10:54:46 PM

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