Trial By Jury: How Are The Members of A Jury Chosen?

Ever wonder how the seven people sitting in the jury box at a civil trial in Virginia get there?  If you’ve been on a jury, you probably have some idea.  But you still may wonder how you were chosen. The process involves a few steps and a lot of work that you don’t see. First, “jury commissioners” for each jurisdiction compile a “master jury list” of Virginia citizens who reside in the jurisdiction where the court is located and who are  legally qualified to serve jurors.  The qualifications include — but are not limited to — being over 18 years old, not having been convicted of a felony (or having been convicted but having had the right to vote restored and having resided in that jurisdiction for at least two years.[1]

Next, once a list  of eligible citizens has been received  by the Court Clerk’s office, the Clerk will send letters to a number of citizens on the list, advising those citizens that they have been selected to appear for jury duty during a term of court.  Then as the time approaches, the Clerk will provide the list to the Sheriff[2] and request the Sheriff to summon a number of the citizens to appear in court for jury duty on a particular day, depending on the number of trials scheduled for each day.[3] When you arrive at court on that day, normally you will be met by a jury officer who will give you some basic instructions. You may watch a videotape.  This part of the process is called “jury orientation.”

Then you will be taken into the courtroom, and the process of determining if you will actually hear the specific case will begin.  The group that is taken to the courtroom for a particular case is called the “venire” for that case.  In most civil cases, the venire is about 20 to 25 people. When they get to the courtroom, normally an initial 13 are chosen randomly to be questioned to determine the 7 that will sit on the jury for that case.  That group is called the “jury panel”.[4]

The next part of the process is called “voir dire”. Translated literally from the French, “voir dire” means, “to see to say.”  It is the opportunity for the Court and attorneys to ask questions and learn about the prospective jurors in an effort to select an appropriate jury to decide each case.[5] Before every jury trial in Circuit Court in the Commonwealth of Virginia, the potential jurors are sworn in by the Judge or clerk to tell the truth.  Then the Judge and the lawyers ask a series of questions in an effort to select seven jurors for the civil trial.  Virginia law provides that both the Judge and the lawyers have the right to ask potential jurors any relevant questions to determine whether that juror is related to either party in the trial, has any personal interest in the outcome of the trial, knows anything about the case, has expressed or formed any opinions about the case in advance of the trial, or is biased or prejudiced against any of the parties in the lawsuit.[6]

The process of voir direis designed to help make the trial fair, and to reduce the chances that any jury verdict is not tainted with bias or preconceived notions.  Questions asked by the Judge often include the following:

  • “Is anyone related to either party by blood or by marriage?”
  • “Is anyone a current client of any of the lawyers or their law firms?”
  • “Has anyone formed any opinions about this case?”
  • “Does anyone have any financial interest in the outcome of this case?”
  • “Does anyone know any reason why he or she cannot listen to the evidence and render a fair verdict?”

Often the attorneys will ask the jurors about their experience or knowledge about matters related to the issues in the case.  For instance, in an auto accident case for injuries, an attorney may ask the potential jurors if they are familiar with the location of the accident, or if they know any of the witnesses in the case, or if they have ever suffered injuries like those the plaintiff suffered. Once all of the questions have been asked by the Judge and the lawyers, then any attorney in the case may request the Judge remove a juror from the 13 on the basis the juror is disqualified under the above tests.  If such a juror is removed from the jury on that basis, this is referred to as being “struck for cause.”  A potential juror may be struck for cause for any of the following reasons: The potential juror (1) is related to either party in the trial; (2) has a personal interest in the outcome of the trial; (3) has formed any opinions about the case in advance of trial; or (4) is biased or prejudiced against one party or another.  The Judge decides whether a prospective juror should be struck “for cause.”

Sometimes an attorney may request a member of the jury panel be “struck for cause” after the Judge’s questioning, or the attorney may make the request after the attorneys have finished their questioning, too.   If a juror is “stricken for cause”, then another member of the original venire is added to the jury panel, so there are 13 when the attorneys begin making their strikes.

After any prospective jurors are struck “for cause”, then the remaining 13 are reduced to 7 by what are called “peremptory strikes.”  Each side of the lawsuit’s attorney or attorneys is allowed to strike 3 potential jurors; after these 6 are removed, the remaining 7 are the jurors who will hear the case.[7] The attorneys take turns using their 3 peremptory strikes, until side has used 3.

If you are called for jury duty are questioned by the Judge and the attorneys, you should understand that the attorneys are required to ask questions on behalf of their clients and do not mean to pry into your personal affairs.  (Normally the questions are not terribly personal). You should also understand that there are no right or wrong answers to the questions asked in voir dire.  It is not a contest.  Voir dire is just the way the judicial system tries to get as close to a fair and unbiased jury as it can for each particular case, and to give the parties equal opportunities to present their cases.

The Rules for voir dire in criminal trials are specifically laid out in Va. S. Ct. R. 3A:14.  That Rule provides the Judge will ask if any prospective juror:

(1)      is related by blood or marriage to the accused or to a person to whom the alleged offense was committed;

(2)       is an officer, director, agent or employee of the accused;

(3)       has any interest in the trial or the outcome of the case;

(4)       has acquired any information about the alleged offense or the accused from the news media or other sources and, if so, whether such information would affect his impartiality in the case;

(5)       has expressed or formed any opinion as to the guilt or innocence of the accused;

(6)       has a bias or prejudice against the Commonwealth or the accused; or

(7)       has any reason to believe he will not give a fair and impartial trial to the Commonwealth and the accused based solely on the law and the evidence.  Thereafter, the court, and counsel, as of right may examine on oath any prospective juror and ask any question relevant to his qualifications as an impartial juror.  A party objecting to a juror may introduce competent evidence in support of the objection.

There is no corresponding Rule like this for civil cases; however, these same concepts seem to be regularly applied in civil trials, too.

Although jury duty may seem like an inconvenience or a burden, it is the foundation of our system of justice in the United States.  Judges, attorneys, parties to lawsuits, and all informed citizens appreciate the service jurors provide.  Informed citizens welcome the opportunity to help make our system of justice as fair and just as they can.


[1] See Va. Code § 8.01-345 at http://198.246.135.1/cgi-bin/legp504.exe?000+cod+8.01-345.

[2] See Va. Code § 8.01-351 at http://198.246.135.1/cgi-bin/legp504.exe?000+cod+8.01-351.

[3] Some courts require the citizens to call the clerk each day during the term to see if they are needed for jury duty that day.   The procedures vary slightly from court to court. If you are summoned for jury duty and have any questions, normally the contact information for the court is on the paper you receive and you should call or contact the court for more information. See also Va. Code § 801-353 at http://198.246.135.1/cgi-bin/legp504.exe?000+cod+8.01-353.

[4] See Va. Code § 8.01-357, at http://198.246.135.1/cgi-bin/legp504.exe?000+cod+8.01-357.

[5] The scope of “voir dire” is established by Virginia law.  For civil case, see Va. Code Ann. § 8.01-358, and, for criminal cases, see Va. S. Ct. R. 3A:14 at  http://leg1.state.va.us/cgi-bin/legp504.exe?000+scr+vscr-3AZ14.

[6] See Va. Code Ann. § 8.01-358, at http://198.246.135.1/cgi-bin/legp504.exe?000+cod+8.01-358. .

[7] Attorneys do not have to give a reason for who they strike, but are not allowed to strike jurors for impermissible reasons such as race, gender, age, religious affiliation, etc.  If one attorney thinks the other attorney may have struck a juror for an impermissible reason, the attorney can ask (or make a motion for ) the judge to inquire further into the reasons for the strike.  This is called a “Batson” motion.