Struck jury
Encyclopedia
A struck jury is a multi-step process of selecting a jury
from a pool. First potential jurors are eliminated for hardship. Second jurors are eliminated for cause by conducting voir dire
until there is a pool available that is exactly the size of the final jury (including required alternates) plus the number of peremptory challenge
s available to each side. Then the two sides exercise their peremptory challenges on the remaining pool, usually alternating. This procedure "has its roots in ancient common law
heritage".
Commentators have offered the following (and other) advantages of a struck jury over a "strike and replace" jury:
. The first three were first recognized by Parliament
in 1730 under the general term "special jury". The fourth was known by the Latin phrase "jury de medietate linguae"
These were:
The special jury was used most extensively from 1770 to 1790, roughly during Lord Mansfield
's tenure as Lord Chief Justice
of the Court of King's Bench, and declined thereafter. The first statutory requirements for special jurors were introduced in the County Juries Act of 1825, which required such jurors to be merchants, bankers, esquires, or persons of higher degree. The special jury was eliminated by statute books in 1949, excepting the City of London
special jury that remained available until 1971 for commercial trials in the King's Bench
Division of the High Court of Justice
. The last case using a special jury occurred in London in 1950. The jury de medietate linguae were abolished in the Naturalization Act of 1870
, which also gave foreigners the right to serve on juries.
The use of this system in murder cases, when properly enabled by statute, was held by the Supreme Court of the United States
to be constitutional in Brown v. New Jersey
, .
Some methods of implementing a struck jury have handled waived challenges by eliminating the last identified member of the juror pool. In discrimination cases, this has been treated as identical to specifically challenging that juror. As a result, the now preferred method of handling waived challenges is to let the other side finish its challenges and then randomly eliminate jurors to get to the number needed.
, a newspaper
publisher, was arrested and tried for libel against the governor of New York
, which was then a colony of England. His first two lawyers were disbarred for attempting to turn the trial into an indictment of the governor. The judge appointed as lawyer John Chambers, who was a placeman of the governor. He then moved for a struck jury. The first panel created was not properly prepared by the clerk out of the book of potential jurors, and was overturned by the judges before use. The second was properly prepared, but the clerk or sheriff subsequently reordered the names to put a partisan of the governor as the foreman, which was also overturned. After the local attorney completed the process of getting an unbiased jury, Andrew Hamilton
took over the defense, and won an acquittal on the grounds that the printed statements were true. Based on the law at the time, this was also an example of jury nullification
.
Jury selection
Jury selection are many methods used to choose the people who will serve on a trial jury. The jury pool is first selected from among the community using a reasonably random method. The prospective jurors are then questioned in court by the judge and/or attorneys...
from a pool. First potential jurors are eliminated for hardship. Second jurors are eliminated for cause by conducting voir dire
Voir dire
Voir dire is a phrase in law which comes from the Anglo-Norman language. In origin it refers to an oath to tell the truth , i.e., to say what is true, what is objectively accurate or subjectively honest, or both....
until there is a pool available that is exactly the size of the final jury (including required alternates) plus the number of peremptory challenge
Peremptory challenge
Peremptory challenge usually refers to a right in jury selection for the defense and prosecution to reject a certain number of potential jurors who appear to have an unfavorable bias without having to give any reason...
s available to each side. Then the two sides exercise their peremptory challenges on the remaining pool, usually alternating. This procedure "has its roots in ancient common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
heritage".
Commentators have offered the following (and other) advantages of a struck jury over a "strike and replace" jury:
- It is capable of producing a less biased jury than the alternative;
- There is no reason to hold back on use of peremptories, because lawyers have full knowledge of who will remain on the panel;
- Remedying an alleged BatsonBatson v. KentuckyBatson v. Kentucky, , was a case in which the United States Supreme Court ruled that a prosecutor's use of peremptory challenge—the dismissal of jurors without stating a valid cause for doing so—may not be used to exclude jurors based solely on their race...
violation is easier, since court and counsel can view all the strikes and a ruling can be made before any juror is excused.
Alternative Use
In older usage, and still in some jurisdictions a struck jury entails the formation of a jury pool of men who possess special qualifications to judge of the facts of a case. This was a common provision in U.S. insanity cases in the late 19th century. This usage is more often called a "special jury". It derives in part from the nomenclature in use in England in the 18th century.England
There were four different non-standard types of jury in England while operating under common lawCommon law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
. The first three were first recognized by Parliament
Parliament of England
The Parliament of England was the legislature of the Kingdom of England. In 1066, William of Normandy introduced a feudal system, by which he sought the advice of a council of tenants-in-chief and ecclesiastics before making laws...
in 1730 under the general term "special jury". The fourth was known by the Latin phrase "jury de medietate linguae"
These were:
- The Gentleman Jury - men of high social or economic status,
- The Struck Jury - principal landowners selected from a list of forty-eight names,
- The Professional Jury - members of special knowledge or expertise, and
- The Party Jury - a jury for defendants at special risk of suffering prejudice that included either only or half individuals of the same race, sex, religion, or origin.
The special jury was used most extensively from 1770 to 1790, roughly during Lord Mansfield
William Murray, 1st Earl of Mansfield
William Murray, 1st Earl of Mansfield, SL, PC was a British barrister, politician and judge noted for his reform of English law. Born to Scottish nobility, he was educated in Perth, Scotland before moving to London at the age of 13 to take up a place at Westminster School...
's tenure as Lord Chief Justice
Lord Chief Justice of England and Wales
The Lord Chief Justice of England and Wales is the head of the judiciary and President of the Courts of England and Wales. Historically, he was the second-highest judge of the Courts of England and Wales, after the Lord Chancellor, but that changed as a result of the Constitutional Reform Act 2005,...
of the Court of King's Bench, and declined thereafter. The first statutory requirements for special jurors were introduced in the County Juries Act of 1825, which required such jurors to be merchants, bankers, esquires, or persons of higher degree. The special jury was eliminated by statute books in 1949, excepting the City of London
City of London
The City of London is a small area within Greater London, England. It is the historic core of London around which the modern conurbation grew and has held city status since time immemorial. The City’s boundaries have remained almost unchanged since the Middle Ages, and it is now only a tiny part of...
special jury that remained available until 1971 for commercial trials in the King's Bench
King's Bench
The Queen's Bench is the superior court in a number of jurisdictions within some of the Commonwealth realms...
Division of the High Court of Justice
High Court of Justice
The High Court of Justice is, together with the Court of Appeal and the Crown Court, one of the Senior Courts of England and Wales...
. The last case using a special jury occurred in London in 1950. The jury de medietate linguae were abolished in the Naturalization Act of 1870
Naturalization Act of 1870
The Naturalization Act of 1870 was a law passed by the United States Congress concerning immigration and immigrants. It was created to deal with two immigration issues:...
, which also gave foreigners the right to serve on juries.
United States
This method may be used in many U.S. states. In some states it may be used for both criminal and civil cases, in other states for only one of the two kinds. In at least the state of Washington, it is the default method of choosing a jury. Some courts of appeals in the U.S. have determined that a struck jury offers greater opportunity to shape the final jury than the more common "sequential" (also known as "strike and replace" or "jury box") method, where peremptory challenges can only be issued against those jurors already seated, with no knowledge of the replacement.The use of this system in murder cases, when properly enabled by statute, was held by the Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
to be constitutional in Brown v. New Jersey
Brown v. New Jersey
Brown v. New Jersey, , is a United States Supreme Court case which held that the use of a struck jury did not violate the Fourteenth Amendment.-Background:...
, .
Some methods of implementing a struck jury have handled waived challenges by eliminating the last identified member of the juror pool. In discrimination cases, this has been treated as identical to specifically challenging that juror. As a result, the now preferred method of handling waived challenges is to let the other side finish its challenges and then randomly eliminate jurors to get to the number needed.
New Zealand
In New Zealand, the special jury has become obsolete and is no longer used. The need to provide special expertise through selection of jurors was eliminated by the introduction of expert witnesses, expert advisors to the judge, and administrative tribunals. The jury de medietate linguae from English common law was used for cases where a Māori was accused of a crime until it was abolished in 1961.King v. Zenger, 1735
In 1735, John Peter ZengerJohn Peter Zenger
John Peter Zenger was a German-American printer, publisher, editor, and journalist in New York City. He was a defendant in a landmark legal case in American jurisprudence that determined that truth was a defense against charges of libel and "laid the foundation for American press freedom."-...
, a newspaper
Newspaper
A newspaper is a scheduled publication containing news of current events, informative articles, diverse features and advertising. It usually is printed on relatively inexpensive, low-grade paper such as newsprint. By 2007, there were 6580 daily newspapers in the world selling 395 million copies a...
publisher, was arrested and tried for libel against the governor of New York
New York
New York is a state in the Northeastern region of the United States. It is the nation's third most populous state. New York is bordered by New Jersey and Pennsylvania to the south, and by Connecticut, Massachusetts and Vermont to the east...
, which was then a colony of England. His first two lawyers were disbarred for attempting to turn the trial into an indictment of the governor. The judge appointed as lawyer John Chambers, who was a placeman of the governor. He then moved for a struck jury. The first panel created was not properly prepared by the clerk out of the book of potential jurors, and was overturned by the judges before use. The second was properly prepared, but the clerk or sheriff subsequently reordered the names to put a partisan of the governor as the foreman, which was also overturned. After the local attorney completed the process of getting an unbiased jury, Andrew Hamilton
Andrew Hamilton (lawyer)
Andrew Hamilton was a Scottish lawyer in Colonial America, best known for his legal victory on behalf of printer and newspaper publisher John Peter Zenger. This 1735 decision helped to establish that truth is a defense to an accusation of libel...
took over the defense, and won an acquittal on the grounds that the printed statements were true. Based on the law at the time, this was also an example of jury nullification
Jury nullification
Jury nullification occurs in a trial when a jury reaches a verdict contrary to the judge's instructions as to the law.A jury verdict contrary to the letter of the law pertains only to the particular case before it; however, if a pattern of acquittals develops in response to repeated attempts to...
.